SCMR 2014 Judgments

2014 S C M R 1423

[Privy Council]\

Present: Lord Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Hodge

DHOOHARIKA---Appellant

Versus

DIRECTOR OF PUBLIC PROSECUTIONS---Respondent

Privy Council Appeal No.0058 of 2012, decided on 16th April, 2014.

(a) Contempt of Court---

----Scandalising the court/Judge---Conviction for---Ingredients---Good faith/bad faith of defendant---Freedom of expression---Scope---Newspaper publications mentioning third party's criticisms of a Judge---Liability of editor-in-chief/defendant of such newspaper---Question was whether the defendant was acting in good faith, if he was, he had a defence to the allegation of contempt by scandalising the court even if his criticism could not be shown to be objectively fair---Once the defendant asserted that he acted in good faith, the prosecution must establish that he acted in bad faith---Burden was on the prosecution to prove absence of good faith, i.e. to establish evidence of bad faith beyond reasonable doubt---If the prosecution established that defendant either intended to undermine public confidence in the administration of justice or was subjectively reckless as to whether he did or not, that would, be evidence of bad faith---If defendant acted otherwise than in good faith, that is in bad faith, there was no further element of mens rea required (to establish the offence of scandalising the court)---For the offence of scandalizing the court to be made out there must be a real risk of undermining public confidence in the administration of justice.

Ahnee v Director of Public Prosecutions [1999] 2 AC 294; [1999] 2 WLR 1305; (1999) 143 S.J.L.B. 149 and PC (Mau); 1999-03-17 ref.

(b) Contempt of Court---

----Scandalising the court/Judge---Offence of---Purpose---Offence of scandalizing the court existed solely to protect the administration of justice rather than the feelings of Judges.

(c) Contempt of Court---

----Scandalising the court/Judge---Offence of---Fair trial---Right of defendant/alleged contemnor to give oral evidence----Scope---Court proceeding on basis of evidence given by defendant in his affidavit and not permitting him to give oral evidence---Legality and fairness---Alleged contemnor was always entitled to a fair trial and that, depending upon the circumstances, he would almost certainly be entitled to call oral evidence on his behalf, including his own evidence---In the present case, the defendant was, as a matter of practical fact, deprived of his right to give evidence on his own behalf--- Court's view that everything the defendant could say, was or would be in his affidavit was not correct---Court should have considered whether justice required that the defendant should have been given the opportunity of giving oral evidence in circumstances where his good faith was in issue and where, if he was convicted, he would or might be sent to prison---Trial was unfair to the defendant---Conviction of defendant for scandalizing the court was overturned in circumstances---Appeal was allowed accordingly.

Geoffrey Robertson QC, Anya Proops and Roshi Bhadain (Instructed by Howard Kennedy Fsi LLP) for Appellant.

Geoffrey Cox QC, Rashid Ahmine and Faisal Saifee (Instructed by Royds Solicitors) for Respondent.

James Guthrie QC and Sarah Crowther (Instructed by Charles Russell LLP) for Intervener (Commonwealth Lawyers' Association).

Dates of hearing: 10th and 11th February, 2014.

2014 S C M R 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION---Applicant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Miscellaneous Application No.6882 of 2013 in Constitutional Petition No.77 of 2010, decided on 13th November, 2013.

(Letter by Election Commission of Pakistan dated 12-11-2013.)

(a) Constitution of Pakistan---

----Preamble--- Constitution, adherence to--- Obligation of Government---Scope---Government was under an obligation to adhere to the Constitution in letter and spirit and no one could be allowed in any manner, to deviate from any of its provisions particularly in view of the fact that the Constitution was a binding document as it had been given by people of the country to themselves.

(b) Constitution of Pakistan---

----Arts. 32 & 140A--- Promotion of local Government institutions/ system---Provisions of the Constitution relating to empowerment of the general public---Scope---Provisions (of the Constitution) particularly those relating to empowering the general public politically, administratively and financially through their chosen representatives by establishing the system of local government in terms of Arts. 32 & 140A of the Constitution should be strictly observed.

(c) Constitution of Pakistan---

----Arts. 32 & 140A---Promotion of local Government institutions/ system---Federation and Provinces, duty of---As per provisions of Arts.32 & 140A of the Constitution, the Federal Government was duty bound to hold elections in the Federal Area and Provincial Governments in the Provinces, in order to ensure participation of the general public in the administrative, political and financial affairs of the Government by establishing local bodies system.

(d) Constitution of Pakistan---

----Art. 140A---Promotion of Local Government institutions/system---Election Commission, duty of---Article 140A(2) of the Constitution cast a duty upon the Election Commission to hold elections of local bodies in terms of Art.140A(1), therefore, it should always remain prepared to meet the challenge and whenever any request by the Federal or the Provincial Government was made for holding elections, the Election Commission should comply with the same at the earliest.

(e) Constitution of Pakistan---

----Arts. 32, 140-A & 184(3)---Constitutional petition under Art. 184(3) of the Constitution concerning holding of local Government elections---Change of election schedule---Request made by Election Commission for extension of poll dates for holding local Government elections in the Provinces and Cantonment areas on account of certain practical and technical difficulties---Proposed revised poll programme/dates provided by Election Commission for holding local Government elections---Supreme Court observed that it had repeatedly passed orders calling upon the Federal and Provincial Governments to hold local bodies elections as early as could be possible as it was the command of the Constitution and no deviation from the Constitution was possible; that revised poll programme (provided by the Election Commission) had been issued for holding local bodies elections in the Provinces of Punjab, Sindh and Khyber Pakhtunkhwa and local bodies elections in Balochistan province would take place on 7th December, 2013 as already fixed, therefore, the Election Commission and Provincial Governments had shown their commitment to the Constitution--- Constitutional petition was disposed of accordingly.

Nemo for Applicant.

Ishtiak Ahmed Khan, Secretary, ECP and Syed Sher Afgan, Additional Secretary for Applicant (in C.M.A. No.6882 of 2013).

Muneer A. Malik, Attorney-General for Pakistan, Abdul Latif Yousafzai, AG, KPK, Khalid Javed Khan, AG, Sindh, Muhammad Hanif Khattana, Additional, AG, Punjab and Muhammad Farid Dogar, AAG, Balochistan on Court's Notice.

Date of hearing: 13th November, 2013.

2014 S C M R 7

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sh. Azmat Saeed, JJ

IFTIKHAR AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.800-L of 2013, decided on 15th August, 2013.

(On appeal from the judgment dated 21-6-2013 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.1 of 2013 in Criminal Appeal No.1687 of 2012.)

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

----Ss.426 & 342---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspension of sentence---Conviction based solely on statement of accused under S.342, Cr.P.C. despite prosecution having failed to prove its case beyond doubt---Propriety---Accused in his statement under S.342, Cr.P.C. admitted killing the deceased but stated that due to a sudden quarrel, deceased fired at his leg, whereafter accused also made firing in defence as a result of which the deceased died---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to life imprisonment observing that it was a case of sudden simultaneous cross firing between the accused and deceased; that it could not be said that deceased shot fires first, and that it was not a case where accused exercised his right of private defence---Validity---Trial Court had admittedly disbelieved the motive part and ocular account set up by the prosecution---Two prosecution witnesses were found to be chance witnesses and not worthy of credence---Trial Court instead of deciding the matter in the light of evidence recorded and statement of accused proceeded to hold that in absence of ocular account, evidence of investigating officer could be relied upon---Value of statement of accused under S.342, Cr.P.C. when the prosecution had failed to prove its case beyond doubt escaped the notice of the Trial Court---Sentence of accused was suspended in circumstances till final disposal of his main appeal---Appeal was allowed accordingly.

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

----S. 342---Conviction based solely on statement of accused in court under S.342, Cr.P.C.---Scope---If the conviction of accused was to be based solely on his statement in court, then such statement should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory, unless there was other reliable evidence which supplemented the prosecution case---In such a condition, the exculpatory part if proved to be false might be excluded.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Faqir Muhammad v. State PLD 2011 SC 796 and Azhar Iqbal v. State 2013 SCMR 383 ref.

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

----Ss. 426 & 497--- Suspension of sentence--- Bail--- Analogous principles---Principles for suspension of sentence under S.426, Cr.P.C. were analogous to the principles of bail in terms of S.497, Cr.P.C.

Ch. Walayat Ali, Advocate Supreme Court for Petitioner.

Mushtaq Ahmed Mohal, Advocate Supreme Court for the Complainant.

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

Date of hearing: 15th August, 2013.

2014 S C M R 12

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Ejaz Afzal Khan, JJ

Syed KHALID HUSSAIN SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.165 of 2013, decided on 25th July, 2013.

(On appeal against the judgment dated 6-5-2013 passed by the Peshawar High Court, Abbottabad Bench in Criminal Miscellaneous No.145-A of 2013.)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 334, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-e-amd, itlaf-i-udw, rioting armed with deadly weapons, unlawful assembly, possession of illegal weapons---Bail, grant of---Further inquiry---Conflict between ocular and medical evidence---Probability of false implication---According to F.I.R. accused and co-accused allegedly fired at the victim's abdomen several times from a short distance following an altercation between the parties---Injury sheet revealed that the victim bore injuries on his thighs and legs, while according to medical evidence victim bore multiple injuries on his scrotal region and femoral area of right and left thighs having a dimension of 1/2 cm x 1/2 cm---Co-accused was arrested with a pistol soon after the occurrence in a nearby premises---Accused, too was arrested soon after the occurrence in a nearby premises but without any pistol in his possession---Questions as to whether facts of the case projected a conflict between ocular account and injury sheet on one hand and ocular account and medical evidence on the other; whether accused actually participated in the crime or had been roped in because he happened to be father of the co-accused, and whether injuries with a dimension of 1/2 cm x 1/2 cm on the person of the victim could be caused by shots fired from a pistol from a distance of four paces, called for further inquiry---Fact that accused was in jail for more than seven months also tilted the scales of justice in favour of bail rather than jail---Although one of the empties allegedly picked up from the scene of occurrence matched with the pistol allegedly recovered at the instance of accused on the third day of the occurrence, but such fact could not be over emphasized when the case called for further inquiry---Accused was granted bail in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32 ref.

Mumtaz v. The State 2012 SCMR 556 distinguished.

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

----S.497(2)---Bail---Case of further inquiry---Commencement of trial---Effect---Commencement of trial could not come in the way of grant of bail, if in the opinion of the court, a case for further inquiry was made out.

M. Munir Peracha, Advocate Supreme Court and Shahnawaz Asim, Advocate Supreme Court for Petitioner.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court and Ghulam Mustafa Swati, Advocate Supreme Court for Respondents.

M. Siddique Khan Baloch, Advocate Supreme Court for the State.

Date of hearing: 25th July, 2013.

2014 S C M R 15

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

D.G. CUSTOMS VALUATION, KARACHI and another---Appellants

Versus

Messrs TRADE INTERNATIONAL LAHORE and others---Respondents

Civil Appeals Nos.371 to 379 of 2013, decided on 14th June, 2013.

(On appeal against the order dated 23-5-2012 passed by Islamabad High Court, Islamabad, in Writ Petitions Nos.2732, 2822, 2879, 2880, 2956, 3432 of 2011 in 99, 370 and 2782 of 2012.)

Constitution of Pakistan---

----Art. 199---Customs Act (IV of 1969), Ss. 25A & 25D---Territorial jurisdiction of Islamabad High Court---Scope---Imported consignment of goods arriving at Karachi port for clearance---Customs duty, valuation of---Customs duty valuation ruling issued by concerned officer of Customs at Karachi challenged before the Islamabad High Court by way of a constitutional petition---Islamabad High Court allowed said constitutional petition and extended interim relief to the petitioners in terms that their goods were ordered to be released subject to production of post-dated cheques regarding disputed customs duty---Validity---Perusal of impugned order of Islamabad High Court revealed that question of jurisdiction had not at all been attended to by the court---Impugned order was set aside in circumstances and case was remanded to the Islamabad High Court to first decide the question of jurisdiction---Appeal was allowed accordingly.

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

Shafqat Mehmood Chohan, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 14th June, 2013.

2014 S C M R 17

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Mian Saqib Nisar and Iqbal Hameedur Rehman, JJ

ADDITIONAL CHIEF SECRETARY (FATA) and others---Appellants

Versus

PIAYO NOOR---Respondent

Civil Appeal No.141-P of 2010, decided on 23rd May, 2013.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 7-4-2009 passed in W.P. No.569 of 2009.)

(a) Frontier Crimes Regulation (III of 1901)---

----S. 11---Constitution of Pakistan, Arts. 247(7) & 199---Jurisdiction of High Court in relation to Tribal Areas---Scope---Accused was a resident of Tribal Area and was allegedly involved in kidnapping, abduction and car lifting---Assistant Political Agent made an Order of Reference under S. 11 of Frontier Crimes Regulation against the accused and referred him for trial by the Council of Elders---Accused filed a constitutional petition before the High Court challenging his detention, which was allowed and accused was granted bail on the ground that there was no material on record to show that he was involved in the offences alleged against him---Legality---Where a matter related to Tribal Areas, the jurisdiction of High Court under Art.199 of the Constitution was ousted, whether the grievance brought before the court was based upon violation of fundamental rights or of any other law---Accused was a resident of Tribal Area, where he statedly carried out criminal activities, thus the matter exclusively related to Tribal Area from where he was arrested---When jurisdiction of High Court was excluded to examine the main criminal charge, as a corollary it was also not empowered to pass any interim order in the shape of grant of bail to the accused---For any such relief accused could apply only to the competent authority under the Frontier Crimes Regulation---Appeal was allowed and impugned judgment of High Court was set aside.

Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 distinguished.

Abdul Rahim v. Home Secretary, Government of West Pakistan PLD 1974 SC 109; Qaum Bangash v. Qaum Turi 1991 SCMR 2400; Malik Taj Muhammad v. Bibi Jani Civil Appeal No.144 of 1981; Shaukat Khan v. Assistant Political Agent PLD 2002 SC 526; Munawar Khan v. Political Agent Khyber Agency Station 2012 MLD 503; Nawab Khan v. Assistant Political Agent PLD 2011 Pesh. 164; Murad Ali v. Assistant Political Agent, Landi Kotal 2009 YLR 2497; Ijaz Khan v. APA Barra, Peshawar PLD 2006 Pesh. 180; Abdul Manan v. Assistant Political Agent, Bara 1999 MLD 2661; Haji Qadir Gul v. Secretary to the Government of N.-W.F.P. Home and Tribal Affairs Department, Peshawar 1999 MLD 840; Abdul Badshah v. Deputy Commissioner PLD 1997 Pesh. 132; Haji Muhammad Sharif Khan v. S.D.M. 1997 MLD 152; Haji Salim Khan v. Commissioner, F.C.R. Kohat Division, Kohat 1996 CLC 1702; Said Jamal v. Assistant Political Agent (F.R.), Kohat 1992 MLD 2043 and Syed Shamsuddin v. Government of Balochistan PLD 2012 Bal. 197 ref.

(b) Constitution of Pakistan---

----Arts. 247(7) & 199--- Criminal Procedure Code (V of 1898), S.86-A--- Jurisdiction of High Court in relation to Tribal Areas---Scope---Where a matter related to Tribal Area, the jurisdiction of High Court under Art. 199 of the Constitution was ousted, whether the grievance brought before the Court was based upon violation of fundamental rights or of any other law---Section 86-A, Cr.P.C. provided safeguard against unwarranted arrest of a person in the Settled Area in execution of warrants issued by the Political Authorities to face criminal trial in the Tribal Areas---High Court, however, was not barred from examining whether the provision of S. 86-A, Cr.P.C. had been complied with where it was alleged that a person had been arrested in the Settled Area and was transferred to Tribal Area to face a criminal charge without producing him before the Magistrate---However, it would be for the aggrieved person to show that he was arrested from the Settled Area--- Jurisdiction of Magistrate or High Court under S. 86-A, Cr.P.C. was limited to the question of arrest of detenu---Where the violation of S.86-A, Cr.P.C. was neither alleged nor established and crime was statedly committed in Tribal Area, or where the subject matter of a civil dispute was located in the Tribal Area, the jurisdiction of High Court to entertain a petition under Art.199 of the Constitution was excluded.

Miss Neelam Khan, AAG, KPK for Appellants.

Wali Khan Afridi, Advocate Supreme Court for Respondent.

Date of hearing: 23rd May, 2013.

2014 S C M R 27

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sh. Azmat Saeed, JJ

NISAR AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.765-L of 2013, decided on 12th August, 2013.

(Against the order of the Lahore High Court, Lahore dated 13-6-2013 passed in Criminal Miscellaneous No.5564-B of 2013.)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 452, 109 & 34---Qatl-e-amd, house-trespass after preparation for hurt, abetment, common intention---Bail, grant of---Further inquiry---Accused and co-accused allegedly entered complainant's house, whereafter co-accused shot at and killed complainant's daughter/deceased---Prima facie, accused was not directly connected with the motive part of the prosecution story---Accused was not alleged to have fired at the deceased or any prosecution witness at the time of occurrence---Even the motorcycle on which the accused allegedly came at the spot of occurrence did not belong to him, and according to investigating officer it was owned by a co-accused---Question of accused's guilt required further inquiry---Accused was released on bail accordingly.

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

----S. 497(2)---Bail, refusal of---Grounds---Case of further inquiry---Scope---Commencement of trial---Plea of complainant that bail granting order might affect the merits of the trial, which was likely to commence---Validity---Supreme Court was not barred from granting bail at any stage provided accused had made out a case of further inquiry.

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

----S. 497(2)---Bail, right of---Scope---Case of further inquiry---When an accused became entitled to bail as of right under S.497(2), Cr.P.C. the same could not be withheld on the ground of practice because the latter was relatable to exercise of discretion, while the former was relatable to exercise and grant of a right.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 rel.

Ch. Walayat Ali, Advocate Supreme Court for Petitioner.

M. Zubair Khalid, Advocate Supreme Court for Respondent No.2.

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

Date of hearing: 12th August, 2013.

2014 S C M R 30

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

Messrs Z&J HYGIENIC PRODUCTS (PVT.) LTD.---Petitioner

Versus

COMMISSIONER INLAND REVENUE, SALES TAX GUJRANWALA and others---Respondents

Civil Petitions Nos.33-L to 35-L of 2011, decided on 19th June, 2013.

(On appeal from the judgment dated 19-6-2013 passed by the Lahore High Court, Lahore in Writ Petitions Nos.10370 and 12191 of 2003 and 38 of 2004.)

Sales Tax Act (VII of 1990)---

----S. 40-A, 40 & 38---Constitution of Pakistan, Art. 185(3)---Alleged evasion of sales tax---Raid/search conducted by tax authorities without obtaining warrant from Magistrate---Legality---Confiscation of record and documents of tax-evader during raid---Tax authorities conducted a raid on premises of petitioner-company and took away manual as well as computer record and then issued a show cause notice for recovery of alleged evaded sales tax---Constitutional petitions filed before the High Court by petitioner-company and tax authorities were disposed of with the direction that superior courts were not the forum to adjudicate upon questions of fact by making thorough investigation and both the parties might contest their grievance before the adjudicating officer---Plea of petitioner-company that raid under S. 40 of Sales Tax Act, 1990 should be made after obtaining warrants from the Magistrate, and if raid was made under S. 40A of Sales Tax Act, 1990 reasons should be given by tax authorities as to why it apprehended that record would be removed; that no such reasons had been given by tax authorities in the notice given in the present case---Validity---Without mentioning reasons and plea of emergency for entry in the premises, raid by concerned authorities without taking permission from the Magistrate was illegal---Supreme Court granted leave to appeal to consider whether raids conducted under Ss. 38 & 40A of Sales Tax Act, 1990 were within the parameters specified by the Supreme Court in the judgments of (i) Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. 2005 PTD 1933, (ii) Collector of Sales Tax and others v. Messrs Food Consults (Pvt.) Ltd. and Messrs Diplex Beauty Clinic 2007 PTD 2356, and (iii) Federation of Pakistan through Ministry of Finance Islamabad v. Master Enterprises (Pvt.) Ltd. and others 2003 PTD 1034; and whether documents seized during an illegal raid could be used against the alleged tax-evader in any manner to his disadvantage.

Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. 2005 PTD 1933; Collector of Sales Tax and others v. Messrs Food Consults (Pvt.) Ltd. and Messrs Diplex Beauty Clinic 2007 PTD 2356 and Federation of Pakistan through Ministry of Finance Islamabad v. Master Enterprises (Pvt.) Ltd. and others 2003 PTD 1034 ref.

Mian Abdul Ghaffar, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Mian Yousaf Omer, Advocate Supreme Court for Respondent No.1.

Date of hearing: 19th June, 2013.

2014 S C M R 33

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Ather Saeed, JJ

MUHAMMAD IQBAL and others---Appellants

Versus

KHAIR DIN through L.Rs. and others---Respondents

Civil Appeal No.682 of 2002, decided on 1st July, 2013.

(On appeal from the order dated 1-4-1999 passed by the Lahore High Court, Lahore in Civil Revision No.1942 of 1985.)

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

----Ss. 52, 41 & 53---Lis pendens, principle of---Applicability and exception--- Consent decree obtained by collusion---Fraudulent transfer---Scope---Defendant claimed to have purchased suit land from vendor vide agreement to sell dated 1-12-1969 and filed a suit for specific performance for such purpose, which was decreed by way of a consent decree dated 29-4-1972 after defendant and vendor reached an agreement---Plaintiffs (appellants) filed a declaratory suit contending that in fact they had purchased the suit land from the vendor vide registered sale deed dated 17-5-1971; that consent decree obtained by defendant was collusive and fraudulent, and that defendant had not impleaded them in his suit---Suit of plaintiffs was decreed by Trial Court, which decree was upheld by First Appellate Court---High Court, however, reversed concurrent judgments of courts below and dismissed the plaintiffs' suit on the basis that defendant was bona fide purchaser for consideration prior in time; that plaintiffs had purchased suit land during pendency of suit filed by defendant and transaction of sale with the plaintiffs was hit by the principle of lis pendens enshrined in S. 52 of Transfer of Property Act, 1882---Plea of plaintiffs was that principle of lis pendens would not be applicable in the present case as the suit and decree so obtained by defendant were collusive---Validity---Suit land was sold to plaintiffs vide registered sale deed dated 17-5-1971, and said transaction was duly reflected in the revenue record and possession of suit land was also delivered to the plaintiffs on the spot by revenue officer---At the time of consent decree obtained by defendant, dated 29-4-1972, the vendor was divested of his ownership qua suit land as the land already stood transferred to the plaintiffs vide registered sale deed dated 17-5-1971, thus vendor was left with no title on the date of consent decree to have consented to sell the suit land---Regarding applicability of principle of lis pendens, defendant failed to prove that plaintiffs had either knowledge of the agreement to sell between the defendant and vendor or that he was a bona fide purchaser---Consent decree obtained by defendant was collusive and principle of lis pendens was not attracted in the present case---High Court also did not advert to the exception to the principle of lis pendens provided in S. 41 of Transfer of Property Act, 1882 and failed to notice that plaintiffs had no notice either of the agreement to sell between defendant and vendor, or the pendency of the earlier suit filed by defendant, which culminated into a consent decree---Exception to the principle of lis pendens provided in S. 41 of Transfer of Property Act, 1882 was fully attracted in the present case as all its ingredients were satisfied, namely that there was documentary evidence to show that transfer of suit land was for consideration; that such transfer was made by an ostensible owner (i.e. vendor), and that plaintiffs had no knowledge of any prior agreement qua suit land--- Plaintiffs were not even impleaded as a party by the defendant in his suit despite the fact that they had purchased suit land vide registered sale deed---Consent decree vide which vendor consented to selling suit land to defendant was on the face of it a fraudulent transfer also within the meaning of S. 53 of Transfer of Property Act, 1882 as suit land had already been transferred by vendor in the name of plaintiffs when he agreed to the consent decree---Such fraudulent transfer was voidable at the option of plaintiffs---Consent decree was an attempt to defeat the interest already acquired by the plaintiffs in the suit land---Impugned judgment of High court was set aside in circumstances and that of Trial Court was restored---Appeal was allowed accordingly.

Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 and Nisar Ahmed Afzal v. Muhammad Taj and others 2013 SCMR 146 ref.

(b) Decree---

----Consent decree--- Scope--- Consent decree was a kind of agreement/contract between two parties with a superadded command of the court, but it would not bind a third party who was not party to the suit.

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

----Ss. 41 & 52---Lis pendens, principle of---Exception to the principle of lis pendens---Essential ingredients---Section 41 of the Transfer of Property Act, 1882 provided an exception to the principle of lis pendens---Essential ingredients for invoking said exception were that transferor was the ostensible owner (of the property); that such transfer was made by consent of the real owner; that such transfer was for a consideration, and that the transferee while acting in good faith had taken reasonable care before entering into the transaction.

(d) Words and phrases---

----"Creditor"--- Definition.

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

----S. 53---Fraudulent transfer---Scope---Section 53 of Transfer of Property Act, 1882 aimed to provide safeguard to the rights of a transferee of an immovable property where the sale was made with the intent to defeat the right of the transferee---Such a transaction was made voidable by operation of law and a person who had purchased the property in good faith and for consideration stood protected---Intention and fraud were to be determined from the facts considered in their totality---Conduct of parties prior, contemporaneous and subsequent would be relevant to decide if a transaction was hit by S. 53 of Transfer of Property Act, 1882.

Muhammad Tahir Ch., Advocate Supreme Court for Appellants.

Abdul Qadoos Rawal, Advocate Supreme Court for Respondents.

Date of hearing: 1st July, 2013.

2014 S C M R 45

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Gulzar Ahmed, JJ

Malik UMAR ASLAM---Appellant

Versus

Mrs. SUMAIRA MALIK and others---Respondents

Civil Appeal No.669-L of 2013, decided on 28th October, 2013.

(Direct appeal under section 67(3) of the Representation of the People Act, 1976 (Act No.LXXXV of 1976) against the judgment dated 5-4-2013 passed in Election Petition No.104 of 2008 by the learned Election Tribunal, Lahore.)

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

----Ss. 67(1A) & 67(1)---Interpretation of S.67, Representation of the People Act, 1976---Election Tribunal---Adjudication of Election petitions----Expeditious disposal of election petitions---Mandatory nature of S.67(1A) of the Representation of the People Act, 1976---Timely decisions were not being taken by the Election Tribunals; because, inter alia, Election Tribunals were ordinarily presided by Judges of the High Courts who remain unable to conclude matters expeditiously on account of their other judicial commitments, or because of delaying tactics employed by respondents who, having been declared as returned candidates, enjoyed the status of Members of the National or Provincial Assemblies---Such delays in disposal of election petitions before the Tribunal in fact deprived a large number of electors of the constituency to have their due representation in the elected Houses, particularly in those matters where a whole term had been enjoyed by a winning candidate, who may later turn out to be disqualified on any count---Such delay caused the people of constituency to be represented by a person who was not duly elected, which clearly negated the principle of a democratic system of Government---Wisdom existed in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who had been elected or who had challenged the election before the Tribunal or the Court and after expeditious disposal of the same and such persons should consume all their energies for the welfare of the people whom they represent, instead of wasting time in pursuing such matters before the Courts---Mandatory requirement of the Representation of the People Act, 1976 was that the Election Tribunal shall proceed with the trial of the election petition on a day-to-day basis and the decision thereof shall be taken within four months from its receipt as provided under S.67(1A) of the Act---Legal duty had, therefore, been cast upon the Election Tribunal to reach a conclusion expeditiously by following stringent/coercive measures of imposing a cost and assigning the reasons if cases were adjourned by the Tribunal and to such end, the Tribunal was even empowered to declare that a returned candidate who was delaying the proceedings of the Tribunal; ceased to be a member of the Parliament/Provincial Assembly, either till the conclusion of the proceedings or for such period as the Tribunal may direct---Provisions of S.67(1A) of the Representation of the People Act, 1976 were therefore mandatory in nature and entailed penal consequences for non-compliance.

Muhammad Usman Achakzai v. Election Tribunal Balochistan PLD 2010 SC 943; Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Muhammad Khan Junejo v. Fida Hussain Dero PLD 2004 SC 452; Maulana Nur-ul-Haq v. Ibrahim Khalili 2000 SCMR 1305; Ghulam Hussain v. Jamshed Ali 2001 SCMR 1001; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 and Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010: In the matter of PLD 2010 SC 759 rel.

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

----Ss. 96, 104 & O.XLIII---Appeal---Appealable orders/decrees---Scope---Appeal was a statutory right, which would only be exercised if the statute had provided so as a matter of right---Under S.96, C.P.C. an appeal lay against all decrees passed by a court in exercise of original civil jurisdiction, except consent decree, and decree passed in a suit filed under S.9 of the Specific Relief Act, 1877 and a final decree, the preliminary decree of which was not challenged--- Appeal also lay against an order if so provided for by S. 104 or O.XLIII, C.P.C.

(c) Administration of justice---

----Judicial adjudication had to be undertaken by a forum duly authorized to exercise judicial powers and pronounce judgment between the parties.

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

----Art. 1(2) & Preamble---Domestic Tribunal etc.---Applicability of Qanun-e-Shahadat, 1984 on proceedings before Domestic Tribunals, Inquiry Committees etc.---Scope---Domestic Tribunals, like inquiry committees, and departmental committees constituted statutorily by Universities to probe genuineness or otherwise of a degree, were bound by the principles of the Qanun-e-Shahadat, 1984.

Rahat Naseem Malik v. President of Pakistan 2003 PLC (C.S.) 759 rel.

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

----Ss. 67(3) & 67(1)---Constitution of Pakistan, Arts. 62 & 63---Decision of Election Tribunal---Appeal to the Supreme Court---Adjudication of such appeal by the Supreme Court---Scope---Adjudication in appeal proceedings by the Supreme Court at the apex level was distinct and different from decision/findings of Domestic Tribunals, not because of hierarchy but because of the statutory powers available to an appellate court under S.67 of the Representation of the People Act, 1976---Adjudication of an issue, which was a continuous bone of contention between the parties could not be postponed even if there was a lapse of a period of 10 years ; and particularly when a candidate had to prove his/her credentials in terms of Arts. 62 & 63 of the Constitution to establish that no objection/attack was actionable against him or her, both before as well as after entering the Parliament or the Provincial Assembly---Court could intervene in the election of such candidates, who were found to be disqualified, even after having been elected as members of Parliament, and their election could subsequently be de-notified.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089 and Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 rel.

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

----Ss. 99(c) & 67---Constitution of Pakistan, Arts. 62 & 63---Conduct of General Elections Order (7 of 2002) Art. 8-A---Qanun-e-Shahadat (10 of 1984), Art. 84---Disqualification for membership of Majlis-e-Shoora (Parliament)---Educational degree obtained by forgery, impersonation or dishonest means---Inquiry by University as to the genuineness of degree--- Adjudication of appeal by the Supreme Court---Appreciation of evidence---Scope---Appellant had impugned decision of Election Tribunal whereby election petition filed by the appellant was dismissed---Appellant had asserted that the respondent, who had been declared as the returned candidate for his constituency, had obtained a B.A. degree through forgery and impersonation; and therefore her election as a member of the National Assembly be declared void---Contention of the respondent was, inter alia, that the University authorities, after holding of an inquiry, had come to the conclusion that the degree of the respondent was valid; and therefore no further inquiry was needed in the matter---Held, upon deep appreciation of evidence, both documentary and oral, made by the parties and through perusal of the judgment of the Election Tribunal; the University authorities failed to arrive at a correct conclusion in view of the evidence produced before them---Supreme Court, in circumstances, had to examine the documents independently under powers granted by Art.84 of the Qanun-e-Shahadat, 1984---Respondent, in order to make herself qualified for contesting elections in the year 2002 had arranged a B.A. degree by way of impersonation to fulfil the requirements of Art.8-A of the Conduct of General Election Order, 2002 and otherwise, after having passed intermediate examinations in the year 1981, there was no necessity for her to obtain B.A. degree---Contention that since there were allegations against the University, therefore, without impleading the same no finding could be recorded upon the genuineness of the degree, was not entertainable since there was always litigation between the parties in respect of validity and genuineness, of degree obtained by adopting illegal means including impersonation and a University, being a place of education, should not be dragged into litigation; as it is for the University to decide whether or not to take action against delinquents---Respondent, at the time when she filed nomination papers, was not qualified to contest the elections and had proved herself as not sagacious, righteous, non-profligate, honest and Ameen in terms of Art.62(1)(f) of the Constitution---Supreme Court observed that the respondent had not held the office of MNA from her constituency with lawful authority; as a disqualified person had no right to represent the electorate of the country and therefore, on account of such qualification the respondent would not be entitled to contest the election in future as well, and if she did contest elections and was declared successful, the Election Commission would be bound to de-notify her---From ab initio, when the respondent submitted nomination papers she was not qualified and she had proved herself not to be a truthful person---Supreme Court directed that the notification whereby the respondent was notified as the returned candidate be declared void and the respondent was declared as disqualified from becoming member of Parliament---Appeal was allowed, accordingly.

Abdul Ghafoor Lehri v. Returning Officer 2013 SCMR 1271; Malik Iqbal Ahmad Langrial v. Jamshed Alam PLD 2013 SC 179; Mudassar Qayyum v. Ch. Bilal Ijaz 2011 SCMR 80 and Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 ref.

Ahmed Hassan Khan v. Naveed Abbas 1998 SCMR 346; Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778; Syed Mehmood Akhtar Naqvi's case PLD 2012 SC 1089; Malik Iqbal Ahmad Langrial v. Jamshed Alam PLD 2013 SC 179; Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II 2013 SCMR 1271 and Muhammad Azhar Siddiqui's case PLD 2012 SC 774 rel.

Hamid Khan, Senior Advocate Supreme Court, Imtiaz Rashid Siddiqui, Advocate Supreme Court and Waqar Rana, Advocate Supreme Court for Appellant.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, Mobeen ud Din Qazi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record assisted by Barrister Saad Buttar, Advocate for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 9th October, 2013.

2014 S C M R 75

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sarmad Jalal Osmany and Ejaz Afzal Khan, JJ

PROVINCE OF PUNJAB through Land Acquisition Collector and another---Appellants

Versus

BEGUM AZIZA---Respondent

Civil Appeals Nos.2031 and 2032 of 2001, decided on 23rd July, 2013.

(On appeal from the judgment dated 29-8-2001 passed by the Lahore High Court, Rawalpindi in R.F.As. Nos. 26 of 1992 and 62 of 1992.)

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

----S. 23---Acquisition of land---Quantum of compensation, determination of---As per award announced by Land Acquisition Collector compensation rate of acquired land was determined as Rs.77,720 per kanal---Land owner filed a reference before civil court, which enhanced compensation rate to Rs. 200,000 per kanal with 15% compulsory acquisition charges--- High Court further enhanced compensation rate of acquired land to Rs.35,000 per marla i.e. Rs.700,000 per kanal with 15% compulsory charges---Validity---Acquired land was located about 25 karams away from a main road and opposite to a Government office---Official of Military Estate office who appeared as a witness admitted in his cross-examination that there were shops on one side of the said office and on the other side of the road there were commercial as well as residential properties including a petrol pump---Official of the office of Deputy Commissioner admitted that as per valuation table issued by the office of Deputy Commissioner, the commercial land in the area was assessed at Rs.2,25,000 per marla whereas residential land was assessed at Rs.35,000 per marla---Said valuation table could be taken note of particularly in absence of any evidence to the contrary regarding value of the property and other factors reflected in the evidence with regard to the potential value of property---Notification for acquiring land in question was issued on 27-4-1981, while the award was announced on 28-3-1985, thus it took four years for the authorities to complete the acquisition proceedings, and prices might have escalated during such period---Such escalation had to be kept in mind while assessing potential value of the land---Judgment of High Court was in consonance with the spirit of S. 23 of Land Acquisition Act, 1894---Appeal was dismissed accordingly.

Province of Sindh v. Ramzan PLD 2004 SC 512; Abdul Majeed and others v. Muhammad Subhan and others 1999 SCMR 1245 and Pakistan Burma Shell Limited v. Province of N.-W.F.P. and others 1993 SCMR 1700 ref.

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

----S. 23---Stamp Act (II of 1899), S. 27-A---Acquisition of land---Quantum of compensation---Valuation of property, determination of---Valuation table prepared and notified by the office of Deputy Commissioner in terms of S. 27-A of Stamp Act, 1899---Scope---Said valuation table by itself might not furnish conclusive evidence qua value of property but it could be taken note of particularly in absence of any evidence to the contrary regarding value of the property and other factors reflected in the evidence with regard to the potential value of property.

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

----Ss. 11 & 4(1)---Acquisition of land---Assessment of compensation by the Collector---"Market value" and "potential value" of land---Scope---While assessing compensation, the Collector not only had to consider the market value of land in question but its potential value---Market value was normally taken up as one existing on the date of notification under S. 4(1) of Land Acquisition Act, 1894 under the principle of willing buyer and willing seller, while potential value was the value to which similar lands could be put to any use in the future---While determining the quantum of compensation the exercise might not be restricted to the time of the notification under S. 4(1) of Land Acquisition Act, 1894 but future value of land might be taken into account.

Abdur Rauf Khan v. Land Acquisition Collector/D.C. 1991 SCMR 2164 and Murad Khan v. Land Acquisition Collector 1999 SCMR 1647 ref.

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

----S. 23--- Acquisition of land--- Quantum of compensation, determination of---Time lapse of four years between notification for acquisition of land and announcement of award---Escalation in price of land during such time lapse---Effect---Notification for acquisition of land was issued on 27-4-1981; two corrigenda were issued on 6-10-1982; notification under S. 5 was published on 20-7-1983, and declaration under S.6 was published on 1-2-1984---Award was announced on 28-3-1985---Prices of land might have escalated during the four years taken by authorities to complete the acquisition proceedings---Such escalation had to be kept in view while assessing potential value of the land---Appeal was dismissed accordingly.

Dil Muhammad Khan Alizai, DAG and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Zaheer Bashir Ansari, Advocate Supreme Court for Respondent.

Date of hearing: 23rd July, 2013.

2014 S C M R 83

[Supreme Court of Pakistan]

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

FOR ARREST OF ACCUSED OF MURDER OF HER DAUGHTER WAHEEDA: In the matter of

Human Rights Case No.19526-G of 2013, decided on 24th July, 2013.

(Application by Mst. Bibi Zahida for arrest of accused of murder of her daughter Waheeda.)

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Criminal Procedure Code (V of 1898), S. 154---Human Rights case under Art. 184(3) of the Constitution concerning murder of daughter-in-law of an Inspector General of Police---Criminal negligence, favouritism and inefficiency on part of police in registering F.I.R. for the murder---Victim's mother alleged that victim was murdered by her own father, brother and husband---Victim was murdered in city "P" and her mother insisted that F.I.R. for the murder should be registered at the concerned police station in city "P", however her insistence was not conceded to---Without conducting autopsy, victim's dead body was dispatched from city "P" to city "I" but on the hue and cry of victim's mother, the police was compelled to bring the dead body back to city "P", where allegedly post-mortem was conducted---Instead of issuing post-mortem report, victim's heart was sent to Forensic Science Laboratory as it was difficult to ascertain her cause of death---No F.I.R. was registered at the concerned police station in city "P" except recording report in daily diary , wherein victim's case was treated to be covered under S.174, Cr.P.C. (i.e. a case of suicide)---Mother of victim did not permit victim's burial without registering F.I.R. and getting post-mortem, where after an F.I.R. under Ss.302 & 34, P.P.C. was registered at a police station in city "I" on the directions of the Inspector General of Police in question(victim's father-in-law) knowing well that that incident had taken place in city "P"---Prima facie, facts of the present case established that police of city "P" abused their powers in not registering the F.I.R.---Police had no lawful authority to deny access to justice to the victim's mother---Law abiding officer was not supposed to deny due process of law to the victim party---Heavy responsibility lay upon the law enforcing agencies, particularly, police to ensure that life and property of the people in terms of Art.9 of the Constitution was protected---Present case was a clear case of either inefficiency or criminal negligence of the police for reasons best known to them, including external pressure---Conduct of police at city "I" showed that it acted with sheer criminal negligence, favouritism and inefficiency---Inspector General of Police, who was a senior police officer, brought back dead body of his daughter-in-law/victim to city "I" without getting an F.I.R. registered at city "P", and under his direction F.I.R. was registered in city "I" and subsequently a guard was also posted on the victim's grave---No one was ready to listen to the victim's mother, with the result that she had to run from pillar to post and ultimately the present matter reached the Human Right Cell of the Supreme Court---Supreme Court directed that the Federal and Provincial Governments should ensure that no influence was used by any of the police officers who had already committed criminal negligence in handling the present case; that the competent authority should deal with such police officers in accordance with law on the subject; that in order to ensure transparent and independent inquiry, the concerned Provincial Chief Secretary and Secretary Interior should take steps to constitute a team of independent police officers who should be responsible to conduct the investigation and submit challan in the court of law accordingly; that both said functionaries should submit compliance report of the directions in the present case within a period of two weeks because any further delay in concluding the investigation of the case was likely to cause further injustice and prejudice to the victim's mother; that the Federal and Provincial governments should take initiatives for improving the professional efficiency of the police department enabling them to meet with all types of challenges to ensure that whosoever had taken the law in his hands, notwithstanding his status, should face the consequences; that the police departments in all the Provinces and Capital city should strictly adhere to the Constitution and the law, while dealing with criminal cases instead of showing any leniency or favouritism, either to the complainant or to the accused; that for registration of cases police should follow the law under S.154, Cr.P.C. and the principles provided for such purpose in the case of Muhammad Bashir v. Station House Officer, Okara Cantt. (PLD 2007 SC 539)---Supreme Court observed that police in the country was not fulfilling its commitments efficiently, as a result whereof, law and order situation, all over the country, was worsening day-by-day, and that complaints against the police did reach the Human Rights Cell of the Supreme Court, which was functioning continuously to redress grievances but despite issuing directions, the law enforcing agencies failed to redress the grievances of the complainants---Petition was disposed of accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 and The Human Rights Case No.3212 of 2006, 2006 SCMR 1547 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Human Rights Cell of the Supreme Court---Jurisdiction---Scope---In the Human Rights Cell of the Supreme Court jurisdiction was exercised under Art. 184(3) of the Constitution along with all other enabling provisions of law on individual or collective requests, to ensure enforcement of fundamental rights, particularly, in cases of public importance.

Applicant in person.

Sajid Ilyas Bhatti, DAG, Syed Arshad Hussain Shah, Additional A.-G., KPK and Naveed Akhtar, Additional A.-G., KPK on Court's Notice.

Abdul Latif Afridi, Advocate Supreme Court, M. Zahoor Qureshi, Advocate-on-Record with Ihsan Ghani, IGP, KPK, Imran Shahid, SSP Operation Peshawar, Muhammad Faisal SP, Cantt., Peshawar, Rana Umer Farooq, ASP U/Town Peshawar and Rizwanullah SI, U/Town for KPK Police.

Bani Amin Khan, IGP, Yasin Farooq, SSP Operation, Jamil Ahmed Hashmi, SP Saddar, Abdul Rasheed Niazi, DSP, Sajjad Bukhari, Inspector/SHO and Rashid Ahmed, SI (all in person) for Islamabad Police.

Date of hearing: 11th July, 2013.

2014 S C M R 98

[Supreme Court of Pakistan]

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

ACTION TAKEN ON NEWS CLIPPING DATED 4-6-2013, PUBLISHED IN DAILY JANG, AGAINST THE PARLIAMENTARIANS HAVING FAKE/BOGUS

DEGREES: In the matter of

C.M.A. No.3470 of 2013 in C.M.A. No.1536 of 2013 in Civil Appeals Nos.191-L and 409 of 2010, decided on 18th July, 2013.

Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for Membership of Parliament---Educational degree---Genuineness of "O" and "A" level educational testimonials of elected representative had not been verified---Supreme Court, in order to do complete justice, directed Higher Education Commission to conduct such exercise, whereafter the Court would proceed further.

Abdul Rehman Khan, DG (Law) for ECP on Court Notice.

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for HEC on Court Notice.

Wasim Sajjad, Senior Advocate Supreme Court with Ms. Maiza Hameed, MPA for Ms. Maiza Hameed, MPA on Court Notice.

Date of hearing: 18th July, 2013.

2014 S C M R 101

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

Civil Miscellaneous Application No. 5959 of 2013

(For extension of time in holding elections in Cantonment.)

IN

Constitution Petition No.65 of 2009

Raja RAB NAWAZ---Appellant/Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

AND

Civil Miscellaneous Application No. 5508 of 2013

in CRP-Nil/2013

(For permission to file and argue the CRP)

IN

C.M.A. 3258 of 2013 in Constitutional Petition No.65 of 2009

AND

Constitutional Petition No.77 of 2010

(Only to the extent of holding local government elections)

PRESIDENT HIGH COURT BAR ASSOCIATION and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Miscellaneous Application No.5959 of 2013 in Constitution Petition No.65 of 2009 and Civil Miscellaneous Application No.5508 of 2013 in CRP-Nil/2013 in C.M.A. No.3258 of 2013 in Constitutional Petition No.65 of 2009 and Constitutional Petition No.77 of 2010, decided on 5th November, 2013.

(a) Cantonments Act (II of 1924)---

----Ss. 14(1)(b) & 15E---Contempt of Court Ordinance (V of 2003), S.3---Constitution of Pakistan, Arts. 32, 140-A, 17 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking conduct of Local Government elections in Cantonment Boards---Contempt proceedings against Secretary Defence for failing to conduct said elections by the deadline provided by the Supreme Court---Deadline for conducting Local Government elections in Cantonment Boards was extended by the Supreme Court up till 15-9-2013 on basis of a written statement/commitment made by Secretary Defence on behalf of the Federal Government---Federal Government through Secretary Defence failed to conduct Local Government elections in Cantonment Boards by the said deadline and sought further extension of time with the plea that the Federal Government contemplated to bring some amendments in the Cantonments Local Government (Elections) Ordinance, 2002, therefore, time might be extended for holding of elections---Validity---Government was always free to make amendments in the laws and could change the composition or constitutionality of the elected bodies, if need be with retrospective effect as well---Statement in writing had been made by the Secretary Defence representing the Federation, for holding the elections on or before 15th September, 2013 but such commitment had not been fulfilled---Reluctance to enforce constitutional provisions for one or the other reason was not understandable---Constitutional provisions could not be allowed to be not adhered to in the name of amendment of the laws---Supreme Court, in circumstances, issued notice of Contempt of Court to the Secretary Defence and directed that two or three options were available with the Federation namely that without any further delay, under the existing laws on the subject, command of the Constitution under Arts. 17, 32 & 140A was to be fulfilled immediately and as other Provinces had already expressed their readiness to hold the elections, therefore, the polls must be held either on 27th November, 2013 or on 7th December, 2013 as these two dates had been agreed by three Provinces; that no discrimination to electors who were residing in Cantonment Boards shall be permissible qua the electors who were residing in non-Cantonment Boards areas, where local bodies elections were likely to be held; that such decision had to be taken by the Federal Government as early as could be possible but by not later than 7 days, otherwise the Court would enforce the provisions of S.15E of the Cantonments Act, 1924; that as after 5th of May, 2013, no permission had been obtained to vary constitution of Boards in terms of S.14(1)(b) of the Cantonments Act, 1924, therefore, the Court shall examine that as to under which authority of the law and how the expenditure etc. were being made from the funds of the Cantonment Boards and if satisfactory explanation was not offered, the Court would be free to protect the rights of the general public living in the Cantonment Boards by pronouncing appropriate orders---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 32, 140-A, 25 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Local Government elections in Islamabad Capital Territory (ICT), holding of---Discrimination amongst citizens living in different Federating Units was not permissible as in one of the provinces elections were being held but residents of Islamabad Capital Territory (ICT) were being deprived from participating in governance at grass roots level---State had the duty to enforce the Constitution in its letter and spirit and there should not be any discrimination in terms of Art.25 of the Constitution---Supreme Court observed that despite issuing directions to the Federal Government from time to time to make arrangements for holding elections in the Islamabad Capital Territory (ICT) so far no progress had been made except that a Bill had been prepared which was likely to be tabled before the Assembly or an Ordinance on the subject had to be issued; that the Supreme Court hoped that no further delay shall be caused in such behalf---Supreme Court directed that within 7 days progress report should be sent to the Registrar of the Supreme Court for perusal and passing appropriate orders---Constitutional petition was disposed of accordingly.

(c) Constitution of Pakistan---

----Arts. 32 & 140-A---Local Government system---Duty of Federation and Provinces---Scope---Provincial and Federal Governments had the duty to ensure holding of local bodies system and devolve political, administrative and financial responsibility and the authority to elected representatives of local bodies, thus no departure was possible from constitutional provisions nor any concession could be extended for its enforcement.

Nemo for Petitioner (in Civil Miscellaneous Application No.5959 of 2013 in Constitutional Petition No.65 of 2009 and Civil Miscellaneous No.5508 of 2013 in CRP-Nil/2013 and C.M.A. 3258/2013 in Constitutional Petition No.65 of 2009).

Muneer A. Malik, Attorney-General for Pakistan with Asif Yaseen Malik, Secy. Defence for Applicant (in C.M.A. No.5959 of 2013).

Syed Zafar Abbas Naqvi, Advocate-on-Record for Applicant (in C.M.A. No.5508 of 2013).

Nemo for Respondent No.3 (in Civil Miscellaneous Application No.5959 of 2013 in Constitutional Petition No.65 of 2009 and Civil Miscellaneous No.5508 of 2013 in CRP-Nil/2013 and C.M.A. 3258/2013 in Constitutional Petition No.65 of 2009).

Abdul Rehman, Additional D.-G. (L) for ECP (in Civil Miscellaneous Application No.5959 of 2013 in Constitutional Petition No.65 of 2009 and Civil Miscellaneous No. 5508 of 2013 in CRP-Nil/2013 and C.M.A. 3258/2013 in Constitutional Petition No.65 of 2009).

Nemo for Petitioners (in Constitutional Petition No.77 of 2010).

Dr. M. Salah ud Din Mengal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Applicant (in C.M.A. No.6723 of 2013).

Muneer A. Malik, Attorney-General for Pakistan on Court's Notice (in Constitutional Petition No.77 of 2010).

Shah Khawar, Additional AGP for Federation (in Constitutional Petition No.77 of 2010).

Nazim ud Din, AG and Abdul Latif Kakar, AAG for Government of Balochistan (in Constitutional Petition No.77 of 2010).

Abdul Latif Yousafzai, AG for Government of KPK (in Constitutional Petition No.77 of 2010).

Muhammad Hanif Khattana, Additional A.-G. for Government of Punjab (in Constitutional Petition No.77 of 2010).

Qasim Mirjat, Additional A.-G. for Government of Sindh (in Constitutional Petition No.77 of 2010).

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Sher Afghan, Additional Secy (Elections) for ECP (in Constitutional Petition No.77 of 2010).

Date of hearing: 5th November, 2013.

2014 S C M R 111

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

WUKALA MAHAZ BARAI TAHAFAZ DASTOOR---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

Civil Petition No.2408-L of 2009, decided on 4th September, 2013.

(On appeal from the order dated 27-10-2009 passed by the Lahore High Court, Lahore in I.C.A. No.884 of 2009.)

Constitution of Pakistan---

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court---Scope---Matters relating to foreign policy, defence and security of the country---Constitutional petition was filed before the High Court with the prayers that Federation should be directed to command the Armed Forces of Pakistan to defend Pakistan against external aggression carried out by American Forces under the cover of North Atlantic Treaty Organization (NATO) which was in occupation of Afghanistan; that an authoritative declaration be made declaring United States of America an enemy State and for taking all measures provided by domestic law such as expulsion of its diplomatic personnel and seizure of assets; that if nuclear arsenal (of Pakistan) was found to be incapable of protecting Pakistan and instead posed a threat to its survival, Federation might be directed to either sell it in the international market to the highest bidder or to place it in the safe-custody of Iran---Maintainability---Issues raised in the constitutional petition and prayers made therein were relatable to matters of foreign policy, defence and security of the country---Such issues were neither justiciable nor they fell within the judicial domain for interference under Art.199 of the Constitution---Any such interference by the courts would be violative of one of the foundational principles of the Constitution, which envisaged at trichotomy of powers between the Legislature, Executive and Judiciary---Petition for leave to appeal was dismissed accordingly and leave was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 4th September, 2013.

2014 S C M R 113

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

WAHID BAKHSH WATTOO and others---Appellants

Versus

PAK AMERICAN FERTILIZERS LIMITED and others---Respondents

Civil Appeals Nos.1874 and 1875 of 2005, decided on 10th October, 2013.

(On appeal from judgment of Lahore High Court, Lahore dated 31-10-2005 passed in I.C.A. No.886 of 2001.)

Constitution of Pakistan---

----Art. 25---Discrimination---Closure of fertilizer plant for having outlived its economical life---Voluntary Separation Scheme (VSS) offering benefit of 1 + 2 to workers of such plant---Petitioners' claim for benefit of 1 + 4 offered under Golden Hand Shake Scheme (GHSS) to workers of two sister concerns of respondent-company---Validity---Respondent company had offered VSS instead of adopting course of retrenchment of petitioners' service with much lesser benefits---Petitioners had willingly opted for VSS offered to them by respondent company and received benefits thereof much prior to introduction of Golden Handshake Scheme in its two sister concerns---Voluntary Separation Scheme and Golden Handshake Scheme were two independent schemes, which had been introduced at different times and in two different companies for benefit of two different set of workers under different circumstances--- Petitioners had not been discriminated by offering them VSS---Discrimination qua GHSS/VSS had been alleged by only 65 workers (petitioners), but not by other workers being satisfied with VSS---Supreme Court upheld decision of High Court dismissing constitutional petition in circumstances.

Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Sikandar Aziz v. Secretary, Ministry of Industries and Production 2001 PLC (C.S.) 205; National Bank of Pakistan v. Nasim Arif Abbasi 2001 SCMR 446; Wali-ur-Rehman v. State Life Insurance Corporation 2007 PLC (C.S.) 836 and State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426 ref.

Asmat Kamal Khan, Advocate Supreme Court for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court for Respondents Nos.1 and 2.

Dil Muhammad Khan Alizai, Deputy Attorney-General for Pakistan and Mehmood Ahmad Sheikh, Advocate-on-Record for Respondent No.3.

Date of hearing: 10th October, 2013.

2014 S C M R 122

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

Dr. IMRAN KHATTAK and another---Petitioners

Versus

Ms. SOFIA WAQAR KHATTAK, PSO TO CHIEF JUSTICE and others---Respondents

C. P. No.1494 of 2013, decided on 17th September, 2013.

(On appeal against the judgment dated 26-8-2013 passed by the Peshawar High Court, Peshawar in Suo Motu Writ Petition No.2207-P of 2013.)

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

----Ss. 103, 103-A & 103-AA---Constitution of Pakistan, Arts. 199 & 218(3)--- Election Commission, jurisdiction of--- Constitutional jurisdiction of High Court---Scope---Election was set aside by High Court in exercise of its constitutional jurisdiction---Validity---Remedy provided by Ss.103, 103-A & 103-AA of Representation of the People Act, 1976, and Art.218(3) of the Constitution were not only adequate but efficacious as well by all means---High Court in such a situation could not encroach upon domain of Election Commission, nor could it arrogate to itself a power or jurisdiction which was not conferred on it by the Constitution or Representation of the People Act, 1976---Executing Court did not fail at any stage or refused to perform its legal and constitutional duty which necessitated the High Court exercise of its constitutional jurisdiction---High Court had overstepped the parameters laid down by the Constitution and law which was a case of exercise of jurisdiction not conferred on it by law and the Constitution---Judge of High Court or Supreme Court was bound to abide by and adhere to law and the Constitution---Supreme Court set aside judgment passed by High Court and observed that aggrieved persons could approach the fora provided by the Constitution and Representation of the People Act, 1976, for redressal of their grievance---Appeal was allowed.

High Court Bar Association and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6 others PLD 2013 Bal. 75; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Tricomdas Cooverji Bhoja v. Sri Gopinath Jiu Thakur AIR 1916 Privy Council(sic.); Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR SC 922 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition of High Court---Scope---High Court exercises its extraordinary discretionary jurisdiction where it is satisfied that, subject to the Constitution, no other adequate remedy is provided by law---High Court exercises such jurisdiction under Art.199(1)(a)(i) & (ii) and (c) of the Constitution, on the application of an aggrieved person, while under Art.199(1)(b)(i) & (ii) of the Constitution, on the application of any person whether aggrieved or not and not on an information or on its own knowledge.

Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab-al-Khairi and others 2000 SCMR 1046; Mst. Zubaida A. Sattar and others v. Karachi Building Control Authority and others 1999 SCMR 243; Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service and others PLD 1958 SC 437; Fazl-e-Haq, Accountant General, West Pakistan v. The State PLD 1960 SC 295 and Shehnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Balochistan PLD 1971 SC 677 rel.

Ather Minnallah, Advocate Supreme Court along with M.S. Khattak, Advocate-on-Record for Petitioners.

Abdul Lateef Afridi, Advocate Supreme Court for Respondent No.2.

Tariq Asad, Advocate Supreme Court, Sardar M. Siddique Khan, Advocate-on-Record for Respondent No.4 along with Respondent in person.

Respondent No.19 in person.

Abdur Rehman Khan, Additional D.-G. and Malik Sanaullah, Director (Legal) for ECP.

Date of hearing: 17th September, 2013.

2014 S C M R 135

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

Ms. SALMA MOOSAJEE and another---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 245-K and 246-K of 2009, decided on 11th October, 2013.

(Against the judgment dated 16-4-2009 of the High Court of Sindh, Karachi passed in C.P. No.D-1841 of 2008.)

(a) Constitution of Pakistan---

----Art. 185(3)---Civil service---Leave to appeal was granted by Supreme Court to consider whether claim of two petitioners on merit had been rightly rejected, despite effective applicability of notification dated 9-8-2002 from 1-7-2002, when admittedly petitioners were under the employment of respondents.

(b) Constitution of Pakistan---

----Art. 185---Civil service---Optional Retirement Plan---Past and closed transaction---Appellants got retirement under Optional Retirement Plan but subsequently claimed enhancement in salary, which was declined by High Court--- Validity--- Amount of payment had to be made on the basis of current basic pay--- Retirement Plan was dated 26-6-2002 and appellants had voluntarily and without any coercion filed option forms on 1-8-2002, therefore, their current salary was their salary as on 26-6-2002 and not the salary enhanced---Payment made to appellants under Optional Retirement Plan, which was much more than regular pensionary benefits became past and closed transaction---Appellants could not benefit from any enhancement made after their retirement despite it being effective with retrospective effect---Judgment passed by High Court which did not suffer from any illegality was unexceptionable and no interference was called for by Supreme Court---Appeal was dismissed.

Gulrez Abdul Latif Butt v. Federation of Pakistan 2011 PLC (C.S.) 1422; Abdul Qadir Ismail v. State Bank of Pakistan 2001 PLC (C.S.) 810; PIA v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Red Crescent Society v. Syed Nazeer Gilani PLD 2005 SC 806; State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426 and I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 ref.

Wali-ur-Rehman v. State Life Insurance Corporation 2006 SCMR 1079 fol.

Syed Safdar Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants (in C.A. 245-K of 2009).

Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants (in C.A. 246-L of 2009).

Respondent No.1, ex parte.

Nadeem Azhar Siddiqui, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents Nos.2 and 3.

Date of hearing: 5th April, 2013.

2014 S C M R 146

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ijaz Ahmed Chaudhry, JJ

RUSTAM---Petitioner

Versus

AURANGZEB and others---Respondents

Civil Petition No.695 of 2013, decided on 29th August, 2013.

(On appeal from the judgment dated 1-4-2013 in C.R. No.304 of 2006 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad.)

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

----S. 20--- Constitution of Pakistan, Art. 185(3)---Suit for pre-emption---Co-sharer (shafi-e-shareek) of suit land---Contentions of co-sharer (petitioner) were that he was shafi-e-shareek in the suit land, which fact had escaped sight of all three courts below; that even if plea of being co-sharer had not been taken up by a party in the written statement, the Supreme Court was competent to take notice of such fact and decide the case on merits---Validity---Contentions raised by petitioner needed consideration, leave to appeal was granted accordingly.

Faizullah Khan v. Haji Abdul Hakeem Khan 2011 SCMR 1802 and Khan Gul Khan v. Daraz Khan 2010 SCMR 539 ref.

Khalid Rehman Khan Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Respondents Nos.1 and 3 in person.

Date of hearing: 29th August, 2013.

2014 S C M R 147

[Supreme Court of Pakistan]

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

ASIF YOUSAF---Appellant

Versus

SECRETARY REVENUE DIVISION, CBR, ISLAMABAD and another---Respondents

Civil Appeal No.62 of 2011, decided on 2nd October, 2013.

(On appeal from the judgment dated 22-3-2010 passed by the Federal Service Tribunal Islamabad in Appeal No.555(L)CS/2006.)

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

----S. 3---Constitution of Pakistan, Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether before converting minor penalty as suggested by Inquiry Officer into major penalty of dismissal from service, competent authority served the notice upon petitioner; and whether sufficient material was available before competent authority to pass order assailed before Service Tribunal.

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

----S. 3---Service Tribunals Act (LXX of 1973), S. 4---Major penalty---Show cause notice, non-issuance of---Competent Authority imposed major penalty of dismissal from service to civil servant, against the recommendation of Inquiry Officer---Validity---Competent Authority was not bound by recommendation of Inquiry Officer regarding award of penalty to accused officer---While disagreeing and awarding higher penalty than recommended by Inquiry Officer, Competent Authority had to firstly provide opportunity of hearing to accused officer and secondly he had to pass a reasoned order with conscious application of mind---Although Inquiry Officer found civil servant to be negligent in his conduct and charge of 'mal-administration' was not proved, yet Competent Authority while awarding major penalty of dismissal from service found that there was substantial evidence on record to prove the charges---No reference to the evidence or material was available which found favour with Competent Authority to award major penalty of dismissal from service---No allegation was on record that accused civil servant was guilty of corruption or of financial gain---Supreme Court set aside the order passed by Competent Authority and remanded the matter to it for decision afresh after hearing the civil servant---Appeal was allowed.

Khalid Mansoor v. Director FIA 2008 SCMR 1174 and Abid Hussain v. Chairman, NESCOM 2009 SCMR 1025 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Appellant.

Jamroz Khan Afridi, Advocate Supreme Court for Respondent No.1.

Mirza Waqas Rauf, DAG for Respondent No.2.

Date of hearing: 2nd October, 2013.

2014 S C M R 151

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

MUHAMMAD RAMZAN---Appellant

Versus

Mst. AISHA and others---Respondents

Civil Appeal No.1138 of 2013, decided on 21st October, 2013.

(Against the judgment dated 25-6-2009 of the Lahore High Court, Multan Bench passed in C.R. No.581-D of 2007.)

Civil Procedure Code (V of 1908)---

----O. XX, R. 18(2) & O.XXVI, R.13---Suit for partition of joint property---Non-serving of notice to judgment-debtors of preliminary decree---Effect---Suit for partition was contested by some of the defendants and a preliminary decree was passed by Trial Court---Pursuant to preliminary decree, plaintiff moved Trial Court for partition to extent of his share and passing of final decree, and a Local Commission in such regard was appointed by the court, who suggested a mode of partition vide report submitted to the court---Some of the defendants took up objection to the said report, however such objections were discarded by Trial Court and a final decree was passed according to the report of the Local Commission---Appeal filed by defendants also could not succeed, however High Court in its revisional jurisdiction set aside the two decisions and remanded the matter to the Trial Court to decide objections filed by contesting defendants in accordance with law and to pass a fresh final decree---Pleas of plaintiff were that remand order was not justified as entire record was available before the Revisional Court and, therefore the matter should have been decided on basis of such record; that a number of defendants had never filed objections to the report of the Local Commission and therefore were disentitled to challenge the same, and that report of Local Commission was inconsonance with the share of the plaintiff and most of judgment-debtors did not bother to appear before the Commission for giving their point of view in regard to mode of partition---Validity---Proceedings conducted by Local Commission for partition of property were inherently defective for the reason that no notice had been issued to all the defendants/judgment-debtors of the preliminary decree before finalizing the report---Besides, the record transpired that contesting defendants had filed objections to the report but such objections were not dealt with by the Trial Court in accordance with law---Such vital aspects of the matter had been taken into account by the Revisional Court while interfering with the decision of the two courts below and remanding the matter---Appeal filed by plaintiff was dismissed in circumstances.

Malik Muhammad Latif Khokhar, Advocate Supreme Court for Appellant.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.1, 2, 4 to 7, 9 to 13 and 15 to 17.

Date of hearing: 21st October, 2013.

2014 S C M R 154

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

COMMISSIONER OF INCOME TAX, NOW COMMISSIONER INLAND REVENUE, LAHORE---Petitioner

Versus

Messrs AYESHA WOOLEN MILLS (PVT.) LIMITED---Respondent

Civil Petitions Nos. 241-L to 245-L of 2012, decided on 18th June, 2013.

(On appeal from the judgment dated 9-12-2011 passed by the Lahore High Court, Lahore in I.T.As. Nos. 45, 46, 47, 48 and 49 of 1998.)

Income Tax Ordinance (XXXI of 1979)---

----S. 62(1), proviso---Constitution of Pakistan, Art. 185(3)---Statutory notice, non-issuance of---Defect in books of accounts---Proof---Authorities were aggrieved of order passed by High Court, whereby trading accounts of assessee were accepted---Validity---No notice as specified under proviso to S.62(1) of Income Tax Ordinance, 1979, was issued and assessing officer without pointing out any defects in books of accounts rejected the same---No discussion had been made by assessing officer on alleged qualification of auditor's report and on the basis of such disqualifications no addition was made and question which was raised before High Court was not properly framed---Judgment passed by High Court was well written and was unexceptionable and no interference was called from Supreme Court---Petition was dismissed.

Muhammad Ilyas Khan, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner (in all cases).

Mian Ashiq Hussain, Advocate Supreme Court for Respondent No.1 (in all cases).

Date of hearing: 18th June, 2013.

2014 S C M R 157

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD ASHRAF SANGRI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No.1372 of 2013, decided on 19th September, 2013.

(On appeal against the order dated 12-6-2013 passed by High Court of Sindh, Karachi in M.A. No.59 of 2012.)

Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 7---Constitution of Pakistan, Art. 185(3)---Central Superior Services (CSS) examination---Interview by Board---Candidate passed written test of CSS examination but failed in viva voce/interview---Plea raised by candidate was that Interview Board did not assess him in accordance with procedure at interview---Validity---Interview was subjective test and it was not possible for a court of law to substitute its own opinion for that of Interview Board, in order to give relief to the candidate---What had transpired at interview and what persuaded one member of the Board to award him 50 marks was something which a court of law was not equipped to probe---High Court could not substitute its own opinion with that of Interview Board---If any mala fide or bias or for that matter error of judgment were floating on the surface of record, High Court would have intervened, as courts of law were more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post, which was subjective matter and could at the best be assessed by functionaries who were entrusted with such responsibility---Supreme Court declined to interfere with the result of candidate declared by Public Service Commission---Petition was dismissed.

The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shah and others PLD 2001 SC 176 and Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 ref.

Federation of Pakistan through Secretary Establishment Division v. Ghulam Shabbir Jiskani 2011 SCMR 1198 rel.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 2013.

2014 S C M R 161

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

CANTONMENT BOARD through Executive Officer, Cantt. Board, Rawalpindi---Petitioner

Versus

IKHLAQ AHMED and others---Respondents

Civil Petition No.1500 of 2013, decided on 23rd September, 2013.

(On appeal against judgment dated 6-6-2013 of the Lahore High Court, Rawalpindi Bench, passed in C.R. No.300-D of 2002.)

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Concurrent findings of fact---Revisional jurisdiction of High Court---Scope---Plaintiff filed suit for specific performance of agreement regarding leasehold rights in respect of three plots on the plea that auction was confirmed in their favour---Judgment and decree passed by Trial Court in favour of plaintiffs was maintained by Lower Appellate Court as well as by High Court---Validity---High Court exercised its revisional jurisdiction under S.115, C.P.C., which conferred exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities---Revisional jurisdiction of High Court could not be invoked against conclusions of law or fact, which did not, in any way, affect jurisdiction of the court---High Court could not have investigated into facts or exercised its jurisdiction on the basis of facts or grounds, which were already proved by parties by leading evidence---Judgment assailed under such proceedings was unexceptionable---High Court was justified in not interfering in concurrent findings of facts which were based on material brought on record and proper appreciation of evidence---No infirmity in judgment passed by High Court was found which could warrant interference by Supreme Court---Petition was dismissed.

Agha Muhammad Ali Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd September, 2013.

2014 S C M R 164

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sh. Azmat Saeed, JJ

Haji MUHAMMAD ZAMAN KHAN---Petitioner

Versus

MEMBER, BOARD OF REVENUE PUNJAB and others---Respondents

C.R.P. No.92-L of 2013 in Civil Petition No.390-L of 2013, decided on 12th August, 2013.

(To review the order of this Court dated 19-6-2013 passed in C.P. No.390-L of 2013.)

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

----R. 17---Lambardar, appointment of---Guidelines---Preference to a candidate having higher education than the others---Scope---Factors referred to in R.17 of West Pakistan Land Revenue Rules, 1968 being guidelines must be kept in mind by Revenue Officer while selecting suitable person as Lambardar amongst candidates---Level of education of a candidate, though not finding mention in R.17 of West Pakistan Land Revenue Rules, 1968 as one of factors to be taken into account, could be one of considerations by Revenue Officer while making such appointment---Totality of virtues, qualifications and experience of candidate would weigh in process of such appointment.

Land Acquisition Officer and Assistant Commissioner Hyderabad v. Gul Muhammad PLD 2005 SC 311; Muhammad Riaz v. The State 2011 SCMR 1019; D.R.A. Sial v. Federation of Pakistan 2011 SCMR 1194; Nasrullah Khan v. State 2010 SCMR 881; Ghulam Murtaza v. Abdus Salam Shah 2010 SCMR 1883; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Noorwar Jan v. Senior Member B.R. N.-W.F.P. PLD 1991 SC 531; Rahim Shah v. the Chief Election Commissioner of Pakistan and others PLD 1973 SC 24; Muhammad Rafique v. Nazir Ahmed 2007 SCMR 287 and Muhammad Saeed v. Ghulam Sarwar PLD 2008 SC 1586 ref.

M. Nazir Ahmad v. Muhammad Aslam 2013 SCMR 363; Mst. Zohra Begum v. Muhammad Ismail 2009 SCMR 354; Maqbool Ahmed Qureshi v. Islamic Republic of Pakistan PLD 1999 SC 484; Bashir Ahmed v. Member Judicial III, Board of Revenue Lahore 2002 SCMR 1371 and Ghulam Hussain v. Ghulam Muhammad 1976 SCMR 75 rel.

(b) Supreme Court Rules, 1980---

----O. XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review jurisdiction---Scope---Re-opening of entire case would not be tenable in review jurisdiction.

Habib ul Haq @ Ajar v. Umer Gul 2009 SCMR 335 rel.

Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioner.

Amjad Ali Chattha, AAG Punjab and Waheed Ahmed, Reader to Member Judicial-I for Respondent No.1.

Saif ul Malook, Advocate Supreme Court and Syed Fayaz Hussain Sherazi, Advocate-on-Record for Respondent No.2.

Date of hearing: 12th August, 2013.

2014 S C M R 176

[Supreme Court of Pakistan]

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

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION and others---Appellants/Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.77 of 2010, H.R.Cs. Nos.16405-B of 2010, 13124-P, 40403-P, 40220-G, 43103-B of 2011, 17712-B, 27045-K, 27619-G, 30044-B, 30047-G, 30711-B, 30713-B of 2012, Suo Motu Case No.7 of 2012, C.M.As. Nos.42, 43, 178-Q, 219-Q, 431-Q, 516-Q of 2012, 228-Q, 229-Q, 230-Q, 234-Q, 245-Q and 246-Q of 2013, decided on 18th September, 2013.

(a) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Missing persons---Supreme Court directed the authorities that said persons should be produced before concerned investigating agencies for their investigation without hesitation or delay and compliance report in that regard be filed in the Supreme Court.

(b) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Abduction of a doctor---Senior doctor/cardiologist was abducted from a thickly populated area of the city by unknown person but no progress had been made---Supreme Court directed the authorities to take all necessary steps for effecting recovery of the doctor and to submit report.

(c) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisidiction of Supreme Court under Art. 184(3) of the Constitution---Internally displaced persons---Supreme Court directed the authorities to submit comprehensive report to the Registrar of the Supreme Court regarding rehabilitation of internally displaced persons and status of the projects started therefor in all the sensitive districts of the Province.

(d) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Smuggling of arms, ammunition and narcotics---Effect---Flow of unauthorized arms and ammunition etc. was causing serious problem in law and order situation not only in one province but in whole of country---Arms smuggled into Pakistan were highly sophisticated as compared to the arms which were being used by law enforcement agencies like police etc.---So many items like Iranian petrol were smuggled into the country on a large scale but there was no check as a result whereof the consumers were forced to use such items as the same were sold to them on cheaper rates which was not in the interest of the economy of the country due to which public exchequer had suffered badly---Narcotics Division was duty bound to control narcotics in Balochistan province because it was another source of collecting money without any extra labour which was ultimately used in criminal activities to disturb the law and order situation causing problems for Provincial as well as Federal Governments---Supreme Court directed the authorities to prepare comprehensive report in respect of activities of Customs Department relating to unauthorized arms and ammunition, non-custom paid vehicles as well as narcotics and other contraband items along with figures of cases which they had registered under Customs Act, 1969, and other relevant laws.

Malik Zahoor Ahmed Shahwani, Advocate Supreme Court, Hadi Shakeel Ahmed, Advocate Supreme Court, M. Qahir Shah, Advocate Supreme Court, Sajid Tareen, Advocate Supreme Court and Syed Nazir Agha, Advocate Supreme Court for Petitioners.

Nemo for SCBAP.

Muhammad Riaz Ahmed, Advocate Supreme Court for Applicants/Complainants/relatives of the missing persons (in S.M.C. No.7 of 2012).

Nasrullah Baloch for Applicants/Complainants/relatives of the missing persons (in C.M.As. Nos.178 and 516-Q of 2012).

Doran Khan brother of Abdul Malik, Mst. Saleem Khatoon M/o Shabbir Ahmed Sumalani, Gohar Ali son of Ali Hasan Mengal, Nazir Ahmed father of Manzoor Ahmed, Dr. Ghulam Sarwar uncle of Zafarullah, Mir Nussrat Hussain Anqa father of Mir Sami Hussain Anqa, Bansra brother of Kaou Khan, Nadir Khan brother of Behram Khan, Manzoor Ahmed father of Rashid, Habib Beg father of Rab Nawaz and Muhammad Azeem father of Sanaullah for Applicants/ Complainants/ relatives of the missing persons.

Dr. Haqdad Tareen, Dr. Syed Shamas-ud-Din, Prof. Saadat Khan, Dr. Abdul Malik Baloch and Dr. Ashraf Achakzai for PMA.

Shah Khawar, Additional A.G.P., Sher Shah Kasi, DAG and Rauf Atta, Standing Counsel for Federation of Pakistan.

Nemo for M/o Interior.

Nemo for M/o Defence.

Nemo for M/o Narcotics.

Tariq Bajwa, Chairman, Muhammad Ibrahim Vighio, Collector, Amanullah Tareen, Assistant Collector Customs and Haji Muhammad Azam, Law Officer for FBR.

Shahid Hamid, Senior Advocate Supreme Court, Tariq Ali Tahir, Additional A.-G., Babar Yaqoob Fateh Muhammad, Chief Secretary, Balochistan, Ahsan Mehboob, Additional IGP, Asad Gillani, Secretary (Home), Saqib Javed, Additional Secretary, Home, Mir Zubair Mehmood, CCPO, Quetta, Hamid Shakeel, DIG, Imtiaz Shah, DIG, CID, Ch. Mushtaq Ali, SP (Operation) CID, Naushaid Younas, AIG, Legal, Muhammad Bashir, DSP, CID, Nazir Ahmed, DSP, (Investigation), Muhammad Asif, DSP, CID, Majeed Dasti, DSP, CID, Hussain Ali, DSP, CID, Shabbir Ahmed, IO and Muhammad Amin, IO for Government of Balochistan.

Muhammad Hanif Khatana, Additional A.-G. and Khadim Hussain Qaiser, Additional A.-G. with Javed Aslam, Chief Secretary for Government of Punjab.

Naveed Akhtar, Additional A.-G. for Government of KPK.

Adnan Karim, Additional A.-G. for Government of Sindh.

Hafiz Muhammad Nadeem, DA, JAG for IG FC.

Nemo for Mobile Operators.

Nemo for PTA.

Zulfiqar Khalid Maluka, Advocate Supreme Court for PEMRA.

Baz Muhammad Kakar, Advocate Supreme Court for CEO, ARY.

Date of hearing: 18th October, 2013.

2014 S C M R 216

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

HUMAN RIGHTS CASE NO.29388-K OF 2013: In the matter of

Human Rights Case No.29388-K of 2013, decided on 26th November, 2013.

(Application by Mohabat Shah son of Kabul Shah.)

Constitution of Pakistan---

----Art. 184(3)---Human rights case under Art. 184(3) of the Constitution regarding missing persons---Persons in custody of Army---Internees in judicial lockup taken away by Army authorities without any internment orders---Legality---Concerned Superintendent of the internment centre furnished a list before the Supreme Court which contained names of undeclared internees who were taken away by the Army Authorities---Supreme Court observed that sufficient evidence had been made available to conclude that 35 persons, named in the list, were in custody of Army, therefore, the Army authorities were bound, under the law, to produce them before the court of law and had no authority to retain their custody unauthorisedly---Supreme Court directed Additional Attorney-General to take up the present matter with Ministry of Defence and to produce the persons named in the said list under the Constitution and law from the custody of the Army during course of the day and submit a report in such behalf.

Applicant in person.

Tariq Mehmood Khokhar, Additional A.G.P., Maj. Gen. (R) Arif Nazir, Additional Secretary, M/o Defence, Anzar Rizvi, Senior Joint Secretary, M/o Defence, M. Irfan, Director Legal, M/o Defence, Zakir Hussain Afridi, I.-G. Prisons and Attaullah, Supdt. Jail Malakand on Court's Notice.

Date of hearing: 26th November, 2013.

2014 S C M R 220

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Jawwad S. Khawaja and Amir Hani Muslim, JJ

HUMAN RIGHTS CASE NO. 14392 OF 2013

(Action taken on a news clipping published in Daily Pakistan dated 17-4-2013 regarding Unprecedented load-shedding in the Country)

AND

HUMAN RIGHTS CASE NO. 790-G OF 2009

(Action taken on a News clipping published in Daily Jinnah, Islamabad dated 14-4-2009 Regarding increase in the electricity prices.)

AND

SUO MOTU CASE NO.1 of 2013

(Action against grant of 450 and 200 illegal CNG stations licenses during the tenure of two Ex-Prime Ministers, namely, Syed Yousaf Raza Gillani and Raja Pervez Ashraf)

AND

CIVIL PETITION NO.455 of 2013

OGRA through Secretary---Petitioner

Versus

Messrs MIDWAY II, CNG STATION and others---Respondents

(On appeal from the order dated 28-3-2013 of the Lahore High Court, Rawalpindi Bench passed in I.C.A. No.189 of 2012.)

CONSTITUTIONAL PETITIONS NOS.33 AND 34 OF 2005

Engineer IQBAL ZAFAR JHAGRA AND SENATOR RUKHSANA ZUBERI---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.As. 5962 OF 2013 IN C.R.P. NIL OF 2013 IN C.M.A. 3821 OF 2013 IN CONSTITUTIONAL PETITION 33 OF 2005 ETC.: In the matter of

(for permission to file C.R.P.)

Human Rights Cases Nos.14392 of 2013, 790-G of 2009, Suo Motu Case No.1 of 2013, Civil Petition No.455 of 2013, Constitutional Petitions Nos. 33, 34 of 2005 and C.M.As. Nos.5962 of 2013 in C.R.P. Nill of 2013 in C.M.A. No.3821 of 2013 in Constitutional Petition No.33 of 2005 etc., decided on 26th November, 2013.

(a) Constitution of Pakistan---

----Art. 38---Promotion of social and economic well-being of the people---Energy, availability of---Significance---Availability of energy and the progress of a nation/state were inextricably linked---Article 38 of the Constitution commanded that, "The State shall... secure the well-being of the people... by raising their standard of living..."---Supreme Court observed that without energy, there could be no progress, no development which could raise the standard of living of the people as commanded by Art.38 of the Constitution.

(b) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Electricity---Provision of electricity come under the guarantee of right to life enshrined in Art.9 of the Constitution.

Alleged Corruption in Rental Power Plants: In the matter of 2012 SCMR 773 and Shehla Zia v. Federation of Pakistan PLD 1994 SC 694 ref.

(c) Constitution of Pakistan---

----Arts. 9 & 184(3)---Human rights case---Right to life---Exercise of Jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Validity---Right to life---Scope---Electricity and gas load-shedding---Provision of electricity came under the guarantee of right to life enshrined in Art. 9 of the Constitution---Any country without energy was a country paralysed---Pakistan was constantly faced with massive load-shedding, particularly of electricity in the summer season and of gas in the winter season---Thriving industries of the country were presently reduced to a state of non-functionality---Everyday life of the common man was hampered by massive load-shedding---Economic sector could not be expected to run without the provision of energy---Present matter was thus one of public importance concerning the fundamental rights of the people---Supreme Court had jurisdiction to adjudicate on the provision of energy to the people---Human rights case was held to be maintainable accordingly.

Alleged Corruption in Rental Power Plants: In the matter of 2012 SCMR 773 and Shehla Zia v. Federation of Pakistan PLD 1994 SC 694 ref.

(d) Constitution of Pakistan---

----Arts. 9 & 184(3)---Human rights case---Right to life---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Gap between demand and supply of electricity---Electricity theft---Non-availability of Residual Fuel Oil (RFO) and gas---Power plants performing below-capacity---Non-preference of hydro-power---Mismanagement---Factors responsible for electricity short-fall in the country and solution therefor stated.

Supreme Court outlined various factors which were responsible for electricity shortfall in the country and observed that existing resources of electricity generation, including hydel and thermal, etc., were not sufficient to cater for basic electricity requirements. Independent Power Producers (IPPs) were installed for generation of electricity but they had not proved sufficient. Despite failure of Rental Power Projects (RPPs) in the past, the Government in the year 2008 again adopted mode of generating electricity through such projects.

One of the core problems was electricity theft. Large sections of population, especially rural farms with hundreds of tube wells, government departments, residents of Federally Administered Tribal Areas (FATA), Karachi, Sindh, Seraiki belt, Khyber Pakhtunkhwa (KPK) and Balochistan, and many industrial and production units, etc., were either not paying electricity bills at all or not according to cost of electricity they consumed. In such regard, during the last year a loss of around Rs.750 billion was caused. Consumers in the country were facing electricity shortages of the worst order whereas nothing was being done about electricity theft. Consumer was made to pay exorbitant bills to cover-up the losses that were caused by electricity theft. Electricity theft amounted to stealing a valuable natural resource from the people with impunity. Government had to take strict action against such thieves to end the load-shedding crisis.

There was a stark difference between the producing capacity of power plants and the amount of electricity that they were actually generating. Existing resources/capacity at the system's disposal were sufficient to overcome electricity shortfall faced by the country. Problem of load shedding was a result of mismanagement or want of administrative control by relevant functionaries. Admittedly average minimum amount of load-shedding was ten hours per day, and if such figure was taken at face value, it meant that for nearly half of the day, there was no provision of electricity to all sectors, most important of all industry and agriculture. It was difficult to envision how the commercial sector could grow and develop when there was such a gap between supply and demand of a basic commodity like electricity. State of affairs in the country was so derelict that people had to time their (daily) activities on the basis of when electricity was available.

Another reason for load shedding crisis was the non-availability of Residual Fuel Oil (RFO) and gas. Plants operating on such fuel and gas were not producing electricity in consonance with their full potential.

Independent Power Producers (IPPs) were not abiding by the terms of agreements that they were bound by Seemingly IPPs were taking undue and deleterious advantage of the weak financial position of Pakistan Electric Power Company Limited (PEPCO). IPPs slowed down their production and assigned various reasons for non-payment of electricity. One reason that could be countenanced as valid in such regard was the non-availability of Residual Fuel Oil (RFO) and gas. However, it was also the duty of IPPs to take steps to generate electricity to help boost the commercial, industrial and agricultural sectors rather than continuously pass the buck to PEPCO.

Water and Power Development Authority (WAPDA) was responsible to generate hydro-electricity, which was to account for 33% of the total electricity produced. WAPDA was, however, only performing at 60% of its own capacity in such regard. Reasons for such (below capacity) performance were inter alia, the decentralisation of WAPDA into different generation companies (GENCOs) providing for a possible gap in administrative efficiency, the increased reliance on Residual Fuel Oil (RFO) and gas powered IPPs, and the seasonal constraints on hydro-electric power. Rather than increasing the number of facilities available to harness hydro-electric power such as dams, barrages etc., the Government seemed to be engaged in a policy of promoting Residual Fuel Oil (RFO) as a basis for producing electricity. Average cost of hydel energy generation in the country was Re.1 to 1.5 per kilowatt hour. On the other hand the cost of thermal power was around Rs.5 on Compressed Natural Gas and around Rs.15 on Residual Fuel Oil (RFO), therefore, the increased reliance on fuel oil was unwarranted. Reason for non-production of electricity to maximum installed capacity was thus, to a large extent, financial. Seventy (70)% of the country's oil needs were met through imports. Further, the projected lifetime of existing natural gas and oil resources in the country was just over fifteen and nine years respectively, therefore, simple increase in production by new expensive thermal units would not solve the issue of electricity shortfall. However, the identified hydro-power potential in the country was approximately 41,722 MW, therefore, the best solution to country's energy/electricity crisis was hydro-power. Use of existing resources, while giving priority to capacity building of hydro-electric power, could help in overcoming the problem of load-shedding Human rights case was disposed of accordingly.

(e) Constitution of Pakistan---

----Arts. 9 & 184(3)---Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Supreme Court observed that load-shedding of electricity in the country was manageable subject to dedicated and committed efforts to ensure the maximum possible generation of electricity which was sufficient to cater to the requirement of all categories of stakeholders/consumers; that competent authority must concentrate on efforts to minimise suffering of consumers by endeavouring to provide uninterrupted supply of electricity; that if, however, load-shedding was the only way out, it must be administered without having distinction between rural and urban areas as well as domestic, commercial and industrial sectors; that a formula must be put in place to ensure the distribution of electricity on an equitable basis; that it was responsibility of National Electric Power Regulatory Authority (NEPRA) and Pakistan Electric Power Company Limited (PEPCO) to reduce prices of electricity while ensuring that electricity was generated through less-costing hydel power---Supreme Court directed that the competent authority should take steps to control all kinds of losses after supply of generation like line losses, theft, etc., by using modern devices like introducing smart meters and supplying electricity only to consumers, who were ready and willing to make payment; that efforts should be made to persuade all kinds of unauthorized consumers to make payments of bills, failing which action under relevant laws/rules should be taken against them; that a policy should be announced by the National Transmission and Despatch Company Limited (NTDC) and Distribution Companies (DISCOS) under which the supply of electricity to consumers, who believed in law and made payment in time, was encouraged and supply to unauthorized consumers was discouraged; that preference must be given to generate electricity by using coal and gas, and unless there was no compulsion, electricity should not be generated from Residual Fuel Oil (RFO) as it was costly, and that renewable sources for generating electricity including wind and solar power must be utilized---Human rights case was disposed of accordingly.

(f) Constitution of Pakistan---

----Arts. 38 & 184(3)--- Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Concessions and subsidies granted by State---Scope---Captive Power Plants supplied gas at subsidized rates---Propriety---Captive Power Plants received gas at subsidized rates whereas they sold electricity at marked-up prices to the National Transmission and Despatch Company (NTDC)---Such electricity was thus more expensive than normal rates and was often used to give an uninterrupted supply of electricity to affluent cooperative societies---Concessions and subsidies should not ordinarily be withdrawn as envisioned in Art.38 of the Constitution, however, concessions and subsidies must be focused on what was most important to the downtrodden classes---Concessions and subsidies in case of Captive Power Plants were not being made with the interest of the common man as the goal---Such subsidies were also against the gas allocation policy of the Government---Supreme Court observed that the Government must revise its policy in relation to Captive Power Plants and without any justification such plants could not be supplied gas to produce electricity, as they supplied electricity at a much higher rate to National Transmission and Despatch Company Limited (NTDC)---Supreme Court directed that supply of gas to Captive Power Plants should be revised to a lower priority and not at a subsidized rate---Human rights case was disposed of accordingly.

(g) Constitution of Pakistan---

----Arts. 9 & 184(3)---Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on news paper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Lack of availability of gas for production of electricity---Gas load-management policy of the Government---Priority list of Government regarding supply of gas to different sectors---Fertilizer companies were supplied gas at subsidized rates and in priority to some other sectors--- Plea that major reason for lack of availability of gas for production of electricity was that bulk of the gas was being supplied to fertilizer companies at subsidized rates---Plea on behalf of fertilizer companies that by providing cheaper gas to fertilizer companies, such companies were able to price their products independently of international market forces so as to make fertilizer available at cheaper rates to local farmers; that scientifically it was proven that gas was utilised with greater efficiency in the production of urea---Validity---Court exercised judicial restraint in matters of Government policy except where fundamental rights were violated---Government should follow the priority list for allocation of gas and provide the fertilizer sector with gas at the No. 3 priority instead of supplying more gas to the Compressed Natural Gas (CNG) sector, which was clearly against the policy set out by the Government itself---Providing gas to power generation sector at No. 2 priority was necessary due to the acute load-shedding problem currently faced by the country---Supreme Court observed that supply of gas at subsidized rates to fertilizer companies may continue but at the same time there must be a policy to ensure that production of fertilizers like urea etc. was sold in the market to farmers at a subsidized rate---Human rights case was disposed of accordingly.

(h) Constitution of Pakistan---

----Part. II, Ch. 1 [Arts. 8 to 28] & 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Government policy, interference in---Judicial restraint---Scope---Court exercised judicial restraint in matters of government policy except where fundamental rights were violated.

(i) Sales Tax Act (VII of 1990)---

----Ss. 3(1), 3(8) [as added by Finance Act (XXII of 2013)] & 2(46)---Constitution of Pakistan, Arts. 9 & 184(3)---Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court---Additional sales tax of 9% imposed on Compressed Natural Gas (CNG) by way of S. 3(8) of the Sales Tax Act, 1990 (added by the Finance Act, 2013)---Legality---Additional sales tax of 9%, which was not prescribed under S.3(1) of the Sales Tax, 1990, was being recovered on CNG---Sale price of CNG was increased by virtue of the added 9% sales tax---Held, only a charging section could be used to impute taxes---Section 3(1) of the Sales Tax Act, 1990 was a charging section, and under S. 2(46) no other section of the Sales Tax Act, 1990 could be utilised to charge tax other than a charging section---Section 3(8) of the Sales Tax Act, 1990 (added by the Finance Act, 2013) was thus contradictory with respect to S. 3(1) of the Sales Tax Act, 1990---Levy of extra tax at the rate of 9% could not be charged except the rate which had been fixed under S.3(1) of the Sales Tax Act, 1990---Supreme Court declared S.3(8) of Sales Tax Act, 1990 as ultra vires of S.3(1) of the same Act and struck it down---Supreme Court directed that Oil and Gas Regulatory Authority (OGRA) should issue a revised notification to recover only 16% or 17% sales tax on CNG as early as possible but not beyond the period of seven days; that extra sales tax (recovered on CNG) should be deposited by Federal Board of Revenue within three months in the manner as directed in the judgment of Iqbal Zafar Jhagra v. Federation of Pakistan (2013 SCMR 1337)---Human rights case was disposed of accordingly.

Collector of Sales Tax and Central Excise, Lahore v. WAPDA 2007 SCMR 1736; Sheikhoo Sugar Mills v. Government of Pakistan 2001 SCMR 1376 and Iqbal Zafar Jhagra v. Federation of Pakistan 2013 SCMR 1337 ref.

(j) Constitution of Pakistan---

----Arts. 38, 9 & 184(3)---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S. 21---Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on newspaper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Electricity tariff---Subsidy on electricity tariff taken-away by the Government---Constitutionality---Subsidy that was afforded to consumers was taken-away under S. 31 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Although the Government had the power to take away subsidies, however, such power must be exercised in consonance with the command of Art. 38 of the Constitution---Article 38 of the Constitution commanded the State to act for the welfare of its citizens---Large part of population in the country was living below the poverty line, therefore, it was difficult to comprehend as to how a raised electricity tariff which did not afford any subsidy, was in the benefit of the people---Provision of electricity was a substantive part of the right to life---Due to load-shedding and high electricity tariffs, government policy in regard to taking away subsidy was violative of Art.9 of the Constitution---Supreme Court observed that subsidy already being given to consumers should not have been withdrawn; that although subsidy was not the right of consumers, the Government might consider in near future to increase the rate of subsidy by extending its benefits to consumers who were not in a position to pay high charges of the electricity.

(k) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 7---Constitution of Pakistan, Arts. 38 & 184(3)---Human rights case---Exercise of jurisdiction under Art. 184(3) of the Constitution by the Supreme Court on newspaper clippings regarding unprecedented load-shedding in the country and increase in electricity prices---Price of petroleum products, fixing of---Increase in domestic price of petrol despite steady decrease in petrol prices in the international market---Constitutionality---No policy justification existed for such an increase---Prices of petrol, diesel, petroleum products, etc. were being fixed arbitrarily by Oil and Gas Regulatory Authority without taking into consideration the rate in the international market---Petrol prices should be set in consonance with the international market---Petrol and diesel were of imperative need to the economy and to the populace---Article 38 of the Constitution directed the State to act for the welfare of the people---Fixing high petrol/diesel rates without justification was clearly not in the welfare of the people---Supreme Court directed that in future all necessary steps should be taken in such behalf to fix prices strictly in accordance with the prevailing rates in the international market.

Aamir Malik, Advocate Supreme Court for Applicant (Hajveri CNG).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicant (Shahwani CNG and Renala Petroleum CNG).

Hassan Raza Pasha, Advocate Supreme Court for Applicant (Raees and Chinnar CNG).

Syed Nayab Hassan Gardezi, Advocate Supreme Court for Applicant (TMG, CNG).

Miangul Hassan Aurangzeb, Advocate Supreme Court for Applicant (Bukhari, CNG).

Shahid Kamal Khan, Advocate Supreme Court for Applicant (Midway and Liaquat CNG).

Raja Amir Abbas, Advocate Supreme Court for Applicant (Messrs Energy Comforts).

M. Munir Paracha, Senior Advocate Supreme Court for Applicant (Bugti CNG).

Salam Akram Raja, Advocate Supreme Court with Mehmood A. Sh., Advocate-on-Record for Applicant (in C.M.A. 3399 of 2013).

Kowkab Iqbal, Advocate Supreme Court for Applicant (in C.M.A. 5527 of 2013).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for Applicant (in C.M.A. No.6459 of 2013).

Muhammad Azhar Siddique, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Applicant (in C.M.A. 6738 of 2013).

Tariq Javed, Advocate Supreme Court for Applicant (in C.M.A. 6699 of 2013).

Nemo for Applicant (in C.M.A. No.3671 of 2013).

Muneer A. Malik, Attorney-General for Pakistan on Court's Notice.

Muhammad Farid Dogar, A.A.-G. for Government of Balochistan.

Zahid Yousaf Qureshi, Additional A.-G. for Government of Khyber Pakhtunkhwa.

M. Hanif Khatana, Additional A.-G. and Ms. Afifa Jabeen, Assistant Manager, Energy Department for Government of Punjab.

Qasim Mirjat, Additional A.-G. and Karim Bakhsh Sheikh, Additional Secretary (Energy) for Government of Sindh.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, Syed Safdar Hussain, Advocate-on-Record, Zargham Eshaq, Acting MD, PEPCO, Saeed Ahmed Khan, Chairman, OGRA, Abdul Basit Qureshi, PLO, Rizwan-ul-Haq, ED (Legal), Ms. Misbah Yaqoob, JED and Noor-ul-Haq, JED for PEPCO, NTDC and OGRA.

Moazam Ali Rizvi, Advocate Supreme Court and Manzoor Hussain, CE (Hydel) for WAPDA.

Asim Hafeez, Advocate Supreme Court, Faisal Iqbal GM(F) and Amjad Latif, SGM(D) for SNGPL.

Asim Iqbal, Advocate Supreme Court, Shoaib Warsi, Senior G.M., Ejaz Ahmed, Senior G.M. and Syed Shehryar Kazmi, D.G.M. for SSGC.

Abid Zubairi, Advocate Supreme Court for KESC.

Rashideen Nawaz Qasuri, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record and Kh. Muhammad Naeem, Acting Chairman for NEPRA.

Barrister Asghar Khan, Senior Law Officer for PPIB.

Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for IRSA.

Nemo for AEDB.

Saqib Mushtaq, Assistant Director for PHYDO.

Muhammad Ilyas Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for DISCO's.

Nazir Malik, Dir (L) for M/o Petroleum.

Javaid Iqbal Jadoon, G.M. (Operations) for Mari Petroleum Co.

Khalid Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Pak Arab and Fatima Fertilizer.

Muhammad Munir Peracha, Senior Advocate Supreme Court and Sheraz Ahmed, Manager (Legal) for Fauji Fertilizer Co.

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Iqbal Hashmi, Legal Advisor for Fauji Fertilizer Bin Qasim.

Feisal Naqvi, Advocate Supreme Court and Andaleeb Alvi, Legal Advisor for DH Fertilizer and Engro.

Abrar Hassan, Senior Advocate Supreme Court and Masood Ahmad Alvi, Advocate Supreme Court for KW and SB.

Nemo for FIA.

Nemo for FBR.

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).

Dr. Rana M. Shamim, Advocate Supreme Court for Applicant (in C.M.A. 5962 of 2013).

Muneer A. Malik, Attorney-General for Pakistan, Raja Abdul Ghafoor, Advocate-on-Record assisted by Faisal Siddiqui for the Federation.

Shakeel ur Rehman, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for FBR.

Salman Akram Raja, Advocate Supreme Court, Saeed Ahmad Khan, Chairman, Abdul Basit, Law Officer and Ms. Misbah Yaqoob, JED(F) for OGRA.

Ch. Akhtar Ali, Advocate-on-Record for M/o. Petroleum.

Nemo for M/o Finance.

Dilawar Khan, Dy. Director for M/o Climate Change.

Nemo for OCAC.

Dates of hearing: 6th, 7th, 11th, 12th, 13th, 19th, 20th November, 2nd and 3rd December, 2013.

2014 S C M R 287

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

HUMAN RIGHTS CASE NO.20107-G OF 2013: In the matter of

Human Rights Case No.20107-G of 2013, decided on 9th December, 2013.

(Action on News clipping in the daily "Dawn" dated 26-5-2013 regarding incident of burning of school van in Gujrat.)

(a) Provincial Motor Vehicles Rules, 1969---

----Rr. 35 & 199(3)---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss.23(2)(b) & (d)---Mineral Industrial Gases Safety Rules, 2010, Rr. 80 & 143---Petroleum Rules, 1985, R. 21---Penal Code (XLV of 1860), Ss. 300 & 301---Constitution of Pakistan, Art.184(3)---Human rights case under Art. 184(3) of the Constitution---Action taken by the Supreme Court on a news clipping regarding incident of burning of a school van in which sixteen (16) children and one school teacher lost their lives, cause of incident being the spillage of petrol from the petrol cans kept on the floor of the vehicle which ignited a fire due to contact with hot engine surface, short circuiting of wiring and the fact that the driver was smoking---Fitness Certificate of the vehicle had expired---Criminal negligence---Culpable homicide---Grievous bodily harm---Use of unauthorised and unapproved Compressed Natural Gas (CNG) cylinders---Liability of concerned Motor Vehicle Examiner and Secretary, District Regional Transport Authority (DRTA) in regard to the present incident was apparent in terms of R.35 of Provincial Motor Vehicles Rules, 1969, which dealt with the issue and renewal of fitness certificate of vehicles---Motor Vehicle Examiner was responsible to inspect and ensure that Public Service Vehicles in particular were roadworthy; and as was apparent from said R.35, the Secretary, DRTA oversaw the functions of the Motor Vehicle Examiner---Secretary, DRTA was admittedly responsible for issuing route permits---Omissions by Motor Vehicle Examiner and Secretary, DRTA were numerous: Firstly, the petrol cans inside the van in question constituted a violation of R.199(3) of the Motor Vehicles Rules, 1969---Not only did the Motor Vehicle Examiner fail to take action, but violations of the Motor Vehicles Rules, 1969 with regard to present incident were not even in his notice; Secondly, the van involved in the incident had an expired fitness certificate and was utilising unauthorised and unapproved Compressed Natural Gas (CNG) cylinders; Thirdly, Secretary DRTA, admittedly neglected to visit, even once, the road (where the incident occurred) during the month in which the incident occurred and fourthly, the van in question was on the roads despite the fact that it had not been issued a route permit by the DRTA---Motor Vehicle Examiner and Secretary DRTA abjectly failed to perform their duties by allowing a dangerous van to ply the roads and lives of sixteen children and a teacher could have been saved had they performed their duties to even the bare minimum as mandated by law---Gross omissions of said officials were criminal in nature and had to be dealt with under the Pakistan Penal Code, 1860 (P.P.C.)---Oil and Gas Regulatory Authority (OGRA) and the Chief Inspector of Explosives, were also responsible for the present incident---Under S.23(2)(b) & (d) of the Oil and Gas Regulatory Authority Ordinance, 2002, OGRA had to ensure that CNG was safely stored in cylinders which had been manufactured in Pakistan---Rule 80 of the Mineral Industrial Gases Safety Rules, 2010 provided for obtaining a licence for importing gas cylinders---Both OGRA and Chief Inspector of Explosives were criminally negligent with regard to the use of unauthorised CNG cylinders---OGRA had admittedly taken responsibility to tackle the proliferation of unauthorised CNG cylinders---Chief Inspector of Explosives had the responsibility, to test and condemn cylinders; to ensure that owners of cylinders kept record of maintenance of cylinders; to periodically re-test cylinders and to cancel or suspend licences where there was imminent public danger under the Mineral Industrial Gases Safety Rules, 2010---Rule 143 of the said Rules provided that filling of cylinders had to be overseen by a competent person appointed by the Chief Inspector of Explosives---Observance of said rule could have saved the lives that were lost in the present incident---Driver of the van kept cans of petrol in the vehicle, which highlighted the illegal availability of open petrol, which was a violation of R.21 of the Petroleum Rules, 1985, and had to be checked by OGRA---OGRA and the Chief Inspector of Explosives completely failed to fulfil their obligations under the relevant laws and were thereby liable for criminal action under the Pakistan Penal Code, 1860 (P.P.C.)---Excise and Taxation Department was also responsible for failing to register the change in ownership and fuel setting of the van in question---Punjab Education Department was also liable as it registered the school, which owned the van, without conducting proper inspections---Present incident was a case of criminal negligence on the part of responsible authorities---Responsible parties had to be dealt with under the provisions of the Pakistan Penal Code, 1860 (P.P.C.) relating to culpable homicide and grievous bodily harm depending on the facts and circumstances of the case---Supreme Court directed that all public carrying vehicles, including buses, vans, trucks, taxies, rikshaws, etc., which were not worthy of roads and were being driven throughout the country contrary to the provisions of Provincial Motor Vehicles Ordinance, 1965, without obtaining fitness certificates and route permits, must be kept off roads forthwith; that all Regional Transport Authorities in the Provinces should issue fitness certificates strictly in accordance with the rules and should not allow any vehicle not roadworthy to come on roads; that Chief Inspector of Explosives, in exercise of powers conferred upon them under the Mineral Industrial Gases Safety (MIGS) Rules, 2010 read with relevant Petroleum Rules, should ensure action against decanting of Liquefied Petroleum Gas (LPG), illegal sale of petrol and unfit vehicles, by carrying out inspection from time to time; that OGRA should ensure strict action against license holders running petrol pumps and CNG stations, who were found selling open petrol or provided CNG to vehicles which had either unbranded cylinders or cylinders of substandard brands not approved by concerned authorities; that owners of all commercial vehicles should remove CNG cylinders from their vehicles, which had not been fitted by the approved companies/authorized dealers; that Provincial Inspector General Police should take appropriate action against persons who were responsible for letting the present incident happen, and that the Provincial Government should provide compensation, if not already paid, to the aggrieved families of the children and the teacher, who lost their lives in the present incident---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 9--- Protection of life of citizens--- Duty of State--- Scope---Article 9 of the Constitution, guaranteed the protection of lives of citizens--- State had the duty to ensure such protection by following relevant laws which were made to protect and preserve life.

Suo Motu Action regarding law and order situation in Karachi PLD 2011 SC 997 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

Dil Muhammad Khan Alizai, DAG for the Federation on Court's Notice.

Irshad Ali Khokhar, DG and Mansoor Ahmad Raja, Chief Engineer (HDIP) for M/o Petroleum on Court's Notice.

Muhammad Hussain Channa, Chief Inspector of Explosives for Department of Explosives on Court's Notice.

Afnan Karim Kundi, Advocate Supreme Court, Saeed Ahmed Khan, Chairman, Farrukh Nadeem, ED (Enforcement) and Rizwan ul Haq, ED (Law) for OGRA on Court's Notice.

Jawwad Hassan, Additional A.-G., Salahuddin Khan, Secretary RTA and Asif Bilal Lodhi, DCO Gujrat for Government of Punjab on Court's Notice.

Asjad Javaid Ghurral, Additional P.-G., Dar Ali Khattak, DPO, Gujrat and Ijaz, SHO, Police Station Kunjah for the State on Court's Notice.

Aftab Ahmed Bajwar, Advocate Supreme Court for Motor Vehicle Examiner on Court's Notice.

Date of hearing: 13th June, 2013.

2014 S C M R 304

[Supreme Court of Pakistan]

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

MUHAMMAD SIDDIQUE---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.896-L of 2012, decided on 3rd January, 2013.

(On appeal from the order dated 19-11-2012 in Criminal Appeal No.1082 of 2011 (Criminal Miscellaneous No.3 of 2012) passed by the Lahore High Court, Lahore.)

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Application for suspension of sentence dismissed as withdrawn or dismissed for non-prosecution---Subsequent application for suspension of sentence filed before the same court---Fresh grounds---Scope---Accused and co-accused were convicted and sentenced by Trial Court under S. 302(b), P.P.C., against which they filed appeals before the High Court---Co-accused filed application for suspension of his sentence, which was allowed and he was enlarged on bail---Accused filed his first application for suspension of sentence on the ground that role ascribed to him was similar to that of co-accused, however said application was dismissed for non-prosecution---Accused filed second application for suspension of his sentence on the same ground of similarity of role and rule of consistency, but it was dismissed as withdrawn---Accused filed his third application for suspension of sentence which was allowed by the High Court on the rule of consistency since role ascribed to accused was similar to that of co-accused---Legality---Ground of similarity of role and rule of consistency was available to accused at the time of filing his first application for suspension of sentence---High Court while suspending sentence of accused had not exercised discretion in a proper and judicious manner and passed impugned order in violation of the law laid down in the case "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173)", which provided that subsequent bail application to the same court shall lie only on a fresh ground which did not exist at the time when first application was made; that if a ground was available to accused at the time when first bail application was filed and was not taken or was not pressed, it could not be considered a fresh ground and made the basis of any subsequent bail application---Impugned order passed by High Court was set aside and bail granted to accused was cancelled.

The State through Advocate-General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

Ch. Muhammad Riaz Ahmad, Advocate Supreme Court for Petitioner.

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

Muhammad Ahsan Bhoon, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2.

Date of hearing: 3rd January, 2013.

2014 S C M R 308

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Jawwad S. Khawaja, J

JEHANGIR KHAN TAREEEN---Petitioner

Versus

MUHAMMAD SIDDIQUE KHAN BALOCH and others---Respondents

Civil Petition No.1729 of 2013, decided on 18th November, 2013.

(On appeal against the order dated 4-10-2013 of the learned Single Judge-in-Chambers of the Lahore High Court, at Multan passed in Writ Petition No.11981 of 2013.)

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

----S. 67(1A)---Constitution of Pakistan, Art. 185(3)---Proceedings of election petition before the Election Tribunal---Grant of general adjournment by Election Tribunal---Legality---During proceedings of election petition before the Election Tribunal counsel for respondent requested general adjournment on the ground that he intended to proceed to perform Hajj---Election Tribunal refused such request of counsel for respondent, however High Court in its constitutional jurisdiction stayed the proceedings before the Election Tribunal and granted general adjournment from 2-10-2013 to 20-11-2013---Plea of petitioner that High Court should not have granted open-ended stay i.e. for an indefinite period in view of provisions of S. 67(1A) of Representation of the People Act, 1976 read with the law laid down by the Supreme Court in the case of Malik Muhammad Usman Achakzai v. Election Tribunal Balochistan (PLD 2010 SC 943) and judgment passed in Civil Appeal No. 669-L of 2013 titled Malik Umar Aslam v. Mrs. Sumaira Malik and others dated 28th October, 2013 reported as 2014 SCMR 45---Validity---Plea raised by petitioner required consideration, therefore leave to appeal was granted to consider the same with the directions that operation of order of High Court would stand suspended; that Election Tribunal should proceed with the case strictly in accordance with law and the judgments referred to by the petitioner, and that Election Tribunals' working all over the country should decide election matters expeditiously strictly in accordance with law.

Malik Muhammad Usman Achakzai v. Election Tribunal, Balochistan PLD 2010 SC 943 and Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45 ref.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos. 1 and 4 to 22.

Abdul Rehman Khan, Additional DG(L) for Respondents Nos.2 and 3.

Date of hearing: 18th November, 2013.

2014 S C M R 314

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

MUHAMMAD TAYYAB and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.96 and 97 of 2005, decided on 18th September, 2013.

(On appeal against the judgment dated 17-4-2003 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos.1759 and 1764 of 2002 and Murder Reference No.86-T of 2002.)

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

----S. 7(e)---Constitution of Pakistan, Art. 185(3)---Kidnaping for ransom---Leave to appeal was granted by Supreme Court to reappraise evidence in the interest of safe administration of criminal justice.

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

----S. 7(e)---Kidnapping for ransom---Reappraisal of evidence---Benefit of doubt---Payment made without assurance of release of abductee---Conviction and sentence of death awarded to both the accused by Trial Court was maintained by High Court---Validity---At the time of payment, no inquiry was made with regard to welfare and whereabouts of abductee which was very strange and confusing and boggled human mind---Any prudent man, who was making payment of Rs.500,000 without any arrangement of any sort, in circumstances, could not make payment of huge amount in absence of any assurance of release of abductee on making payment---Ransom amount was paid on 5-11-2001 and abductee was released on 6-11-2001, a doubt was created in prosecution case and benefit of the same could not be denied to accused persons---Even when abductee was summoned by police to take part in identification parade in jail, an objection was raised that he was a small boy as such what prevailed upon them to name accused persons and how names of accused persons were identified and how their actual names came to the knowledge of prosecution witness, which facilitated prosecution to implicate accused persons and also facilitated investigating officer to bring accused from police station---Such was mystery and prosecution did not produce any substantial evidence, in absence whereof, accused could not be connected with commission of crime---Prosecution failed to prove its case beyond any reasonable doubt, which could entail awarding of capital punishment---Both the courts below, while imparting their respective judgments, had fallen into error by not properly appraising evidence, therefore, the same could not sustain---Supreme Court set aside conviction and sentence awarded to accused persons and acquitted them of the charge---Appeal was allowed.

Akhtar Ali and others v. The State 2008 SCMR 6 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.96 of 2005).

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.97 of 2005).

Ch. Zubair Ahmed Farooq, Additional P.-G. for the State (in both cases).

Date of hearing: 18th September, 2013.

2014 S C M R 320

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ, Jawwad S. Khawaja and Amir Hani Muslim, JJ

ASAD I. A. KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No.1644 of 2013, decided on 6th November, 2013.

(On appeal from order dated 6-9-2013 of the Islamabad High Court, passed in W.P. No.3275 of 2013.)

Constitution of Pakistan---

----Arts. 199 & 185(3)---Interim relief by High Court in a constitutional petition filed under Art. 199 of the Constitution---Scope---Petitioner instituted a constitutional petition before the High Court challenging appointment of Managing Director, NESPAK along with an application for interim relief with the prayer that notification of appointment of Managing Director in question may be suspended till decision of the constitutional petition---High Court refused to grant interim relief to the petitioner on the principle that relief sought was leaning towards a final assessment, therefore such relief should not be granted---Validity---Adjudication on merits by the High Court, in the present case, would have necessarily led to decision of the constitutional petition pending before it, which was not the object of the law---No interference was called for in the impugned order of High Court---Petition for leave to appeal was dismissed, in circumstances.

Anwar Kamal, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Dr. Parvez Hassan, Senior Advocate Supreme Court and Sardar Iqbal Shahid, Advocate Supreme Court for Respondents Nos.2 and 6.

Hafiz S. A. Rahman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos.3 and 4.

Date of hearing: 6th November, 2013.

2014 S C M R 322

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

HABIB BANK LIMITED---Appellant

Versus

Mst. PARVEEN QASIM JAN and others---Respondent

Civil Appeal No.1851 of 2002, decided on 29th October, 2013.

(On appeal from the judgment dated 22-7-2002 of the High Court of Balochistan, Quetta passed in High Court Appeal No.17 of 2001.)

Civil Procedure Code (V of 1908)---

----S. 47---Jurisdiction of Executing Court to refuse to execute decree---Scope.

In the proceedings of the execution of decree, the executing Court, while exercising jurisdiction under section 47, C.P.C., can question the executability of a decree, if it is satisfied that the decree is a nullity in the eyes of law or it has been passed by a Court having no jurisdiction or the non-execution of the decree would not infringe the legal rights of the decree-holder or the decree has been passed in violation of any provision of law, only then executing Court can refuse to execute the decree.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Fakir Adbullah and others v. Government of Sindh and others PLD 2001 SC 131 and Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Appellant.

M. Bilal, Senior Advocate Supreme Court for Respondent.

Date of hearing: 29th October, 2013.

2014 S C M R 329

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

REGARDING ENORMOUS INCREASE IN THE PRICE OF FLOUR: In the matter of

Constitutional Petition No.52 of 2013, decided on 2nd December, 2013.

Price Control and Prevention of Profiteering and Hoarding Act (XXIX of 1977)---

----S. 6---West Pakistan Foodstuffs (Control) Act (XX of 1958), S. 3---Constitution of Pakistan, Arts. 38 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding increase in the price of flour---Food security---Availability of wheat/flour at controlled/ subsidized rates---Controlling/fixing price of wheat---Duty of Federal and Provincial Governments---Scope---Food security had to be ensured by the Federal Government and for such purpose a Ministry in the name of National Food Security and Research had been created, which Ministry fixed the price of wheat as Rs.1,200 per 40 k.g for the year 2012-2013---Provincial Governments were also duty bound to ensure that wheat/flour was supplied and being sold at subsidized rates---Provincial Governments were duty bound to control all prices of foodstuffs without any discrimination---Section 3 of Foodstuffs (Control) Act, 1958 conferred powers upon the Government to control supply, distribution etc. of foodstuffs, however said provision was not being adhered to by the present Government---Fixation of prices was to be dealt with by the Federal and Provincial Governments under the Price Control and Prevention of Profiteering and Hoarding Act, 1977, however no exercise of such nature had been undertaken by the present Federal and Provincial Governments---Under Art.38 of the Constitution it was the responsibility of State to secure well-being of the people by raising their standard of living; by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest, and by providing facilities for adequate livelihood with reasonable rest and leisure---Article 38(d) of the Constitution provided that State should make available basic necessities of life, such as food, clothing, housing, education and medical relief for all citizens irrespective of their sex, caste, creed or race---Prima facie, no such mechanism had been adopted so far by the present Government---Ministry for Industries and Production was responsible for keeping a watch over general price trends, supply of essential commodities, and price and distribution control over items that were to be distributed by statutory orders between the Provinces---Supreme Court observed that presently there was a loose check on profiteers and hoarders, and checking of such persons would only be possible if Provincial Governments adopted a mechanism by taking stringent steps---Supreme Court directed the Federal Government to take necessary measures to ensure availability of wheat/flour and other foodstuffs to the public at controlled/subsidized rates; to curb hoarding and profiteering, and to make efforts for alleviating difficulties of citizens/general public by ensuring application of Art. 38 of the Constitution---Constitutional petition was disposed of accordingly.

Taufiq Asif, Advocate Supreme Court, Amir Malik, Advocate Supreme Court assisted by Saifullah Gondal, Advocate for Petitioners.

Syed Attique Shah, Additional A.-G., Altaf Hussain, Assistant Chief, M/o Commerce, Dr. Muhammad Aslam, Food Security Commissioner-I, M/o National Food Security and Research on Court's Notice.

Mustafa Ramaday, A.-G., Punjab, Qasim Mirjat, Additional A.-G., Sindh, Zahid Yousaf, Additional A.-G., KPK and M. Fareed Dogar, A.A.-G., Balochistan on Court's Notice.

Date of hearing: 2nd December, 2013.

2014 S C M R 334

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sarmad Jalal Osmany, JJ

MUHAMMAD SHARIF through L.Rs---Appellant

Versus

PROVINCE OF PUNJAB through District Officer Revenue Pakpattan---Respondent

Civil Appeal No.563 of 2006, decided on 22nd November, 2013.

(On appeal against the judgment dated 22-2-2006 passed by Lahore High Court, Lahore in C.R. No.2038 of 2005.)

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 19 & 10---Punjab Government Notification No.3215-79-3973-C-II, dated 3-9-1979, Condition No.13---Land allotted by Provincial Government---Conditions---Purported sale of allotted land by original allottee---Legality---Suit land was allotted to original allottee in the year 1971 under a scheme---Subsequently plaintiff became tenant of original allottee and later on agreed to purchase the land but the transaction could not be completed since land was resumed by the Provincial Government through an order in the year 1977---Said order was assailed by plaintiff before Revenue authorities but without success, whereafter he filed a civil suit for his remedy, which was ultimately withdrawn by the plaintiff---Plaintiff again moved an application before Revenue authorities on basis of Notification No. 3215-79-3973-C-II, dated 3-9-1979 for getting proprietary rights in suit land, but his application was dismissed on the ground that he did not qualify under the said notification as he already owned land measuring 100 kanals---Appeal and revision against said order of Revenue authorities were also dismissed---Plaintiff once again filed a fresh civil suit against decision of Revenue authorities, which was dismissed by civil court as being devoid of any cause of action---Validity---Under Punjab Government Notification No. 3215-79-3973-C-II, dated 3-9-1979, proprietor rights were to be given to those eligible lessees who had a temporary cultivation lease---Eligible lessees had been defined as either landless persons or owners of less than a substance holding i.e. 12.5 acres and had been in continuous cultivating possession of leased land since before Kharif season 1977---Plaintiff owned more land than the substance holding and it did not matter that he had transferred his land to his wife and son prior to the notification in question---Plaintiff could not establish that he was a temporary lessee of the Government, since according to his own contention he had agreed to purchase land from the original allottee---One of the conditions of the notification in question was that land could not be allotted to a person who had occupied the same without consent of the lessee and/or the previous permission of the competent authority---Plaintiff failed to show as to how he came under possession of the suit land, which he had been cultivating for his benefit---Conduct of plaintiff also had to be examined as he firstly tried to obtain the land based on a consent decree in the suit filed by him against the original allottee, which decree was passed without impleading the Provincial Government, which was owner of the suit land---Second suit filed by plaintiff was withdrawn by him as not pressed and thereafter he approached Revenue authorities, which also denied him his remedy---Finally claimant once again approached the civil court for his remedy---Suit of plaintiff had been rightly dismissed by courts below---Supreme Court observed that proceedings should be initiated against the plaintiff for recovery of Government land for having illegally occupied the same---Appeal was dismissed accordingly.

Muhammad Aslam Baloch v. Member, Board of Revenue (Colonies) Punjab and 2 others 1988 CLC 356 distinguished.

Ch. Muhammad Ashraf, Senior Advocate Supreme Court for Appellant.

Muddassar Khalid Abbassi, Assistant A.-G., Punjab along with Rana Hameed, AC Pakpattan, Nourez Hamayun, Tahsildar and Noor Ahmed, Colony Clerk Pakpattan for Respondent.

Date of hearing: 7th November, 2013.

2014 S C M R 338

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

MUHAMMAD ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.713 of 2006, decided on 16th September, 2013.

(On appeal against the judgment dated 13-2-2006 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.259 of 2001 and Murder Reference No.33 of 2001.)

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider question regarding legality of conviction and sentence awarded to accused.

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

----S. 302(b)---Constitution of Pakistan, Art. 13---Qatl-e-amd---Double jeopardy, principle of--- Applicability--- Custody exceeding life imprisonment---Accused was convicted and awarded death sentence by Trial Court which was maintained by High Court---Plea raised by accused was that he had already undergone more than life imprisonment---Validity---Accused had been in death cell for more than 16 years, regarding which due verification had also been obtained from jail authorities---Accused was substantially entitled to reduction in quantum of his sentence---Supreme Court maintained conviction but converted death sentence into imprisonment for life with benefit of S.382-B, Cr.P.C.---Appeal was allowed accordingly.

Dilawar Hussain v. The State 2013 SCMR 1582; Hassan and others v. The State and others PLD 2013 SC 793; Muhammad Iqbal and others v. The State and others Criminal Appeals Nos.119 and 120 of 2005; Ghazanfar Abbas and others v. The State Criminal Appeal No.193 of 2002 and Mazhar Shah alias Mundri v. The State Criminal Appeal No.393 of 2002 fol.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 16th September, 2013.

2014 S C M R 343

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SHABANA NAZ---Appellant

Versus

MUHAMMAD SALEEM---Respondent

Civil Appeal No.738 of 2009, decided on 10th June, 2013.

(On appeal from the judgment dated 26-2-2009, passed by the High Court of Balochistan, Quetta in C.P. No.541 of 2003.)

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 25---Constitution of Pakistan, Art. 185(3)---Guardianship and custody of minor---Contest between father and mother---Supreme Court granted leave to appeal to consider question as to whether father would not be entitled to custody of minor for not providing him/her maintenance; and that rule of Hizanat would not be an absolute right.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 25---Mother's claim for guardianship of minor daughter---Second marriage by mother with a person not related to minor within prohibited degree--- Father having three children from second marriage---Validity---Mere second marriage by father would not disentitle him from getting custody of his minor daughter---Mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus, custody of minor in such case would belong to her real father---Nothing on record to show any exceptional circumstance disentitling father to custody of minor daughter---Custody of minor daughter was directed to be handed over to her father in circumstances.

Paras 352, 355 and 357 of the Muhammadan Law rel.

(c) Guardians and Wards Act (VIII of 1890)---

----S. 7---Guardian of minor, appointment of---Factors disqualifying father stated.

In terms of section 7 of the Guardians and Wards Act, 1890, the paramount consideration for the court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children, but indeed the court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor.

(d) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 25---Custody (Hizanat) of minor daughter---Factors disqualifying mother stated.

Under Islamic Law though the mother is entitled to the custody (Hizanat) of her minor child, but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. This may not be an absolute rule, but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact which the court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.

Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200 rel.

Tariq Mehmood, Advocate Supreme Court for Appellant.

Ex parte for Respondent.

Date of hearing: 10th June, 2013.

2014 S C M R 348

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Tariq Parvez and Ejaz Afzal Khan, JJ

ROOHUL AMIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.15-P and 16-P of 2010, decided on 6th December, 2012.

(On appeal against the judgment of 20-5-2009 passed by Peshawar High Court, Peshawar in Criminal Appeal No.230 of 2006 and Criminal Revision No. 95 of 2006.)

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether prosecution succeeded in establishing guilt against accused or otherwise and if guilt was established against accused, what were the circumstances on the basis of which normal penalty of death had not been awarded to him.

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

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Identification of accused---Proof---Sentence, quantum of---Principle---Accused was convicted and was awarded imprisonment for life by Trial Court, which was maintained by High Court---Plea raised by accused was that time of occurrence was so that it made identification of assailant doubtful---Validity---Time mentioned was reigned by twilight and could not be termed as dark by any attribute---Prosecution witnesses and assailants were from the same village and the same vicinity and were known to each other, therefore, there could be no difficulty in identifying the assailants in such state of light---Prosecution witnesses were related to deceased but it alone would not make their testimony incredible when they had no interest or motive to falsely implicate the accused---Time of report coincided with that of postmortem examination of deceased according to entries made in respective documents but the same could not furnish justification for discarding testimony of prosecution witnesses as neither time of report nor that of conducting postmortem examination was written with mathematical exactitude---Recovery of ten empties from the spot would not have any adverse bearing on the testimony of prosecution witnesses when shot turning effective, according to medical evidence, was one---Charge against accused was proved beyond any shadow of reasonable doubt and that he had rightly been convicted---Reasons recorded by Trial Court and High Court for awarding imprisonment for life were also correct and tenable, therefore, Supreme Court maintained conviction and sentence awarded to accused---Appeal was dismissed.

Ghulam Mohyuddin Malik, Advocate Supreme Court for Appellants (in Criminal Appeal No. 15-P of 2010).

Noor Alam Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No. 16-P of 2010).

Noor Alam Khan, Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No. 15-P of 2010).

Ghulam Mohyuddin Malik, Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No. 16-P of 2010).

M. Siddique Khan Baloch, Advocate Supreme Court for the State (KPK) (in both cases).

Date of hearing: 6th December, 2012.

2014 S C M R 353

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

ACTION AGAINST GIVING OF DIRECT OUTLETS FROM NASEER BRANCH ROHRI CANAL BY CHIEF MINISTER SINDH: In the matter of

Constitutional Petition No.59 of 2013, decided on 3rd December, 2013.

Sindh Irrigation Act (VII of 1879)---

----S. 28(d)---Penal Code (XLV of 1860), S. 430---Constitution of Pakistan, Arts. 9 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution against sanctioning of direct water outlets from Naseer Branch Rohri Canal on the orders of the Chief Minister---Equal share in canal water---Tampering of water outlets of canal---Water theft---Grievance of petitioners was that water outlets from the canal in question were sanctioned in favour of influential and interested persons without acknowledging that due to such act, land of farmers situated at tail end of the canal did not get water equal to their share because before reaching the tail most of the water was taken by upper riparians---Provisions of Sindh Irrigation Act, 1879 were required to be strictly followed so that nobody could encroach upon the rights of others, as farmers were earning their livelihood to protect and secure their own life and that of their families, which was a fundamental right guaranteed under Art. 9 of the Constitution---Provincial Secretary for Irrigation submitted a report in court wherein he stated that he had visited all the water outlets; that all possible measures were being taken to redress the grievance of petitioners; that tampering of water outlets had been stopped, and that there would be strict supervision to ensure that no violation of Sindh Irrigation Act, 1879 was committed---District Police Officer (DPO) informed the court that fresh F.I.R. under S. 430, P.P.C. had been registered, and instructions were passed onto police officials to fully cooperate with the staff of irrigation department and take prompt action on their complaints---Petitioners stated in court that after passing of orders by the Supreme Court in relation to present petition, farmers whose lands were situated at the tail of the canal were also getting their share in canal water---Supreme Court directed that concerned Deputy Inspector General of Police and District Police Officers should take action against persons involved in water theft etc., and that before approaching the police, irrigation authorities should satisfy themselves that there was a violation of law---Constitutional petition was disposed of accordingly.

Fayyaz Hussain Shah, Tauqir Ahmed and Qazi Faizullah for Petitioner.

Abdul Malik Leghari for Applicant (in C.M.A. No.892-K of 2013).

Muhammad Khan Panhwar for Applicant (in C.M.A. No.893-K of 2013).

Adnan Karim, Additional A.-G. on Court's Notice.

Mujeeb Pirzada, Senior Advocate Supreme Court (Voluntary appearance).

Babar Hussain Afindi, Secy., Ahmed Junaid Memon, Chief Engineer, Saeed Ahmed, SE and Ikramullah Qureshi, XEN for Irrigation Department.

Ali Sher Jakhrani, AIG (Legal) and Sarfraz Nawaz, SSP Badin for Hyderabad Police.

Date of hearing: 3rd December, 2013.

2014 S C M R 358

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

HAROON MUHAMMAD KHAN and others---Appellants

Versus

RUKHSANA YASMEEN and others---Respondents

Civil Appeals Nos.420 to 430 of 2012, decided on 18th February, 2013.

(On appeal from judgment of Federal Service Tribunal, Islamabad dated 2-12-2011 passed in Appeals Nos.1531(R)CS/2011, 1532(R)CS/2011, 1550(R)CS/2011, 1562(R)CS/2011, 1626(R)CS/2011, 1640(R)CS/2011 to 1642(R)CS/2011, 1658(R)CS/2011, 1807(R)CS/2011 and 312(P)/CS/2011.)

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---Civil Servants (Seniority) Rules, 1993, R.4 (b)---Service Tribunals Act (LXX of 1973), S.4 (1) proviso (b)---Tribunal Office Memorandum No.6/2/2009-CP-II, dated 12-9-2009 (O.M.), Establishment Division---Seniority list---Length of service---Creation of new group---Condemned unheard, principle of---Government created Inland Revenue Service by inducting officials by way of transfer from other service groups---Appellants were aggrieved of seniority list prepared in newly created service group and contended that seniority had not been fixed on the basis of length of service and they were condemned unheard---Appeal to Service Tribunal was dismissed and seniority list was maintained---Validity---Appellants were party to proceedings before Service Tribunal, notices were duly issued to them and there was strong presumption against appellants that they were well aware about such proceedings---Appellants were afforded full opportunity of hearing in appeals before Service Tribunal, wherein they had already agitated all their grievances, which had been discussed and were answered in judgment of Service Tribunal, therefore, due opportunity of hearing was provided to appellants before passing of judgment by Service Tribunal---Mere length of service was no criteria for determining seniority of a government servant---Promotion and seniority was not a vested right in line with the language of Ss.8 & 9 of Civil Servants Act, 1973, read with S.4(1) proviso (b) of Service Tribunals Act, 1973---Supreme Court declined to interfere in seniority list prepared by authorities and judgment passed by Service Tribunal---Appeal was dismissed in circumstances.

Muhammad Nadeem Arif v. Inspector-General of Police 2010 PLC (C.S.) 924 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 rel.

Abdur Rahim Bhatti, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 420 to 430 of 2012).

Appellant No.2 in person (in Civil Appeals Nos.420, 421 and 430 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondent No. 1 (in Civil Appeals Nos. 421 to 423, 425 and 429 of 2012).

Athar Minallah, Advocate Supreme Court for Respondent No.1 (in Civil Appeals Nos.421, 422 and 427 of 2012).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Majid, Secretary, FBR for Respondent No.4 (in Civil Appeals Nos.425, 427 and 430 of 2012).

Nemo for other Respondents (in all cases).

Dates of hearing: 22nd, 23rd, 31st January and 1st February, 2013.

2014 S C M R 378

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

MUHAMMAD ASLAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.842-L of 2013, decided on 26th November, 2013.

(On appeal against the order dated 7-6-2013 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.5422-B of 2013.)

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 426---Constitution of Pakistan, Art. 185(3)---First bail application dismissed as withdrawn---Second bail application, filing of---Competence---Scope---Supreme Court constituted a larger Bench to examine as to whether in view of the ratio decidendi of the cases Ali Hassan v. The State (2001 SCMR 1047) and Muhammad Riaz v. The State (2002 SCMR 184), the view taken in the cases of Muhammad Siddique v. The State (2014 SCMR 304) and Amir Masih v. The State and another (2013 SCMR 1059) was required to be re-examined by a larger Bench of the Supreme Court to settle the proposition about competency of second bail application if the first one had been withdrawn and no decision on merits had been given or the facts had also not been adjudicated upon; that as to whether the same principle would not be applicable in the case relating to suspension of sentence; that as to whether the judgment in the case of Muhammad Siddique v. The State (2014 SCMR 304) whereby suspension of sentence had been declined as the earlier application was dismissed, was in consonance with the law laid down in the judgments of Ali Hassan v. The State (2001 SCMR 1047) and Muhammad Riaz v. The State (2002 SCMR 184), and that if so then to what effect---Leave to appeal was granted accordingly.

Amir Masih v. The State and another 2013 SCMR 1059; Ali Hassan v. The State 2001 SCMR 1047; Muhammad Riaz v. The State 2002 SCMR 184 and Muhammad Siddique v. The State 2014 SCMR 304 ref.

Rai Bashir Ahmad, Advocate Supreme Court for Petitioner.

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

Shah Abbas, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for the Complainant.

Date of hearing: 26th November, 2013.

2014 S C M R 396

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

PETITION REGARDING MISERABLE CONDITION OF THE SCHOOLS: In the matter of

Constitutional Petition No.37 of 2012, decided on 22nd November, 2013.

(a) Constitution of Pakistan---

----Art. 25A---Right of children to receive education---Scope---Receiving education was a Fundamental Right of every child particularly in view of Art.25A of the Constitution.

(b) Constitution of Pakistan---

----Arts. 25A & 184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution regarding condition of Government schools in different provinces of Pakistan and Islamabad Capital Territory---Untrained teachers---Under-staffed/over-staffed schools---Absenteeism of teachers from duty --- Recruitment and posting of teachers on political and monetary basis---Illegal occupation/encroachments upon school properties---Lack of basic amenities in schools---Existence of ghost/non-functional schools---Financial mismanagement and lack of audit in Education Department---District and Sessions Judges and District Education Officers after conducting a survey submitted reports to the Supreme Court regarding condition and functioning of schools in their respective districts---Observations of the Supreme Court on issues, challenges and problems confronting schools throughout the country, in view of the said reports, recorded.

Supreme Court observed that reports submitted in court by District and Sessions Judges and District Education Officers regarding condition and functioning of Government schools in their respective districts brought out the following issues, challenges and problems confronting schools throughout the country:--

(i) Staff/teachers were not recruited on merit, rather on political and monetary considerations. Untrained and uneducated persons were working as teachers. Similarly, transfers and postings of teachers as well as officers of the Education Department were made under political considerations and under influence of pressure groups of teachers associated with Unions;

(ii) Some of the schools were under-staffed whereas others were over-staffed;

(iii) Due to absence of fresh recruitments, there was shortage of teachers. Besides, the school teachers were attached with the health department for the purposes of polio campaign, particularly female teachers, and were also deployed on election duty;

(iv) No record of daily attendance of teachers existed and no yardstick was available to measure the level of efficiency and performance of teaching staff. Teachers, in collusion with the concerned supervisory staff, either manage to mark proxies or engage local substitutions on payment of money;

(v) Teachers regularly obtained leaves for no reason or were absent from duty, and in some cases, even head of the school was found absent;

(vi) Teachers did not give the appearance to serve as a role model for students, which was unbecoming of a teacher.

(vii) Most officials of the Education Department did not visit schools, and had no control over the teachers/staff due to frequent political intervention, or blackmailing through anti-corruption department;

(viii) In some areas, the head teacher of the school, without any documentary proof and observance of codal formalities was paid Rs.7,000 per annum per room as maintenance charges, but there was no solid proof and record either in office of the concerned head teacher, the District Education Officer concerned or the head at district level to show as to how and under what criteria such public fund was being used;

(ix) Funds were not being utilized properly by the Education Department, which was indicative of lack of proper financial management and absence of any checks and balances within the said Department;

(x) Encroachments existed upon a large number of schools buildings/properties, however, no concrete steps were being taken by the Education Department against the encroachers;

(xi) In some of the schools under encroachment, the premises had not been legally handed over to the Education Department, as such the premises were not on record of Education Department. In absence of proper handing over and taking over by the Education Department, sanctioned strength of the staff could not be ascertained;

(xii) Most of the primary schools were sanctioned/built on political considerations and owners of the land were using the same as their houses/baithaks;

(xiii) Some schools were found closed due to floods and consequential migration of people of the locality;

(xiv) During (survey) visits of judicial officers, it was observed that many of the schools were either ghost/non-functional or were encroached upon. Besides, a number of schools were found temporarily closed during working hours;

(xv) Some of the school buildings were in occupation of the Army or security forces for operational purposes against militants;

(xvi) Large number of schools were found without electricity, drinking water, washrooms and proper furniture. Maintenance and repair work of school buildings was not done since long and most of the school buildings were found in dilapidated condition, which showed that funds allocated for the said purpose were not being utilized properly; and

(xvii) Number of non-enrolled students was not ascertained either due to lack of interest/resources or due to non-cooperation of the executive agencies of the district.

(c) Constitution of Pakistan---

----Arts. 25A, 184(3) & 199---Right to education, enforcement of---Scope---Right to education was a Fundamental Right, enforceable by the superior courts in exercise of jurisdiction vested in them under Arts. 199 & 184(3) of the Constitution.

(d) Constitution of Pakistan---

----Art. 25A---Right to education---Education, importance of---Role of teachers in educating children---Education played an important role in the successful life of an individual---Absence of education impeded progress of the society---Education played an important role to promote knowledge and understanding of rural communities---Educated person was in a better position to contribute in the development of the society---Education was a key to move forward and achieve success in life, and in such regard, teachers played the most important role in educating children and developing their capabilities and skills to meet the challenges of future life.

(e) Constitution of Pakistan---

----Arts. 25A & 184(3)---Constitutional petition under Art.184(3) of the Constitution regarding condition of Government schools in different provinces of Pakistan and Islamabad Capital Territory---Statistical data/information relating to the overall educational system in Pakistan presented before the Supreme Court during the hearing of present petition stated.

(f) Constitution of Pakistan---

----Art. 9---Security of person---Right to life---Scope---Word "life" occurring in Art. 9 of the Constitution could not be assigned limited meaning and its scope was large enough to encompass almost each and every aspect of human life.

Munn v. Illinois (1876) 94 US 113; Kharak Singh v. State of U.P. AIR 1963 SC 1295 = (1964) 1 SCR 332; Board of Trustees, Port of Bombay v. Dilip Kumar AIR 1983 SC 109 = (1983) 1 SCR 828; Delhi Transport Corporation v. DTC Mazdoor Congress AIR 1991 SC 101; Dr. Mehmood Nayyar Azam v. State of Chhattisgarh (2012) 8 SCC 1 = 2013 SCMR 66; Francis Coralie Mullin v. Administrator, Union Territory of Delhi AIR 1981 SC 746 = (1981) 1 SCC 608; D.K. Basu v. State of W.B. AIR 1997 SC 610; Shehla Zia v. WAPDA PLD 1994 SC 693; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; In Re: Human Rights Case regarding fast food chain in F-9 Park PLD 2010 SC 759; Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109; In Re: SMC No.13 of 2009, case regarding Multi-Professional Housing Schemes PLD 2011 SC 619; Fiaqat Hussain v. The Federation of Pakistan PLD 2012 SC 224; Watan Party v. Federation of Pakistan PLD 2011 SC 997 and Abdul Wahab v. Habib Bank Ltd. 2013 SCMR 1383 ref.

(g) Constitution of Pakistan---

----Arts. 25A & 184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution regarding condition of Government schools in different provinces of Pakistan and Islamabad Capital Territory---District and Sessions Judges and District Education Officers submitted reports in the Supreme Court regarding condition and functioning of Government schools in their respective districts---Summary of statistical data/information based on said reports relating to issues, challenges and problems confronting Government schools throughout different districts of Pakistan stated.

(h) Constitution of Pakistan---

----Art. 25A---Right to education---Provincial Governments, duty of---Scope---After devolution of the subject of education to the Provinces (by way of 18th Amendment to the Constitution), it was obligatory on the Provincial Governments to ensure that children of respective areas received education as a Fundamental Right at all tiers of the education system; and this was only possible if all the Provincial Governments as well as the Federal Government assigned top most priority to the subject of education because by imparting good education to children progress could be made and prosperity of the country could be ensured.

(i) Constitution of Pakistan---

----Arts. 9, 25A & 184(3)---Constitutional petition before Supreme Court under Art. 184(3) of the Constitution regarding condition of Government schools in different provinces of Pakistan and Islamabad Capital Territory---Untrained teachers---Under-staffed/over-staffed schools---Absenteeism of teachers from duty---Recruitment and posting of teachers on political and monetary basis---Illegal occupation/encroachments upon school properties---Lack of basic amenities in schools---Existence of ghost/non-functional schools---Financial mismanagement and lack of audit in Education Department---District and Sessions Judges and District Education Officers submitted reports in the Supreme Court regarding condition and functioning of Government schools in their respective districts---Supreme Court, in light of the said reports, observed that the most important aspect of human life, viz., imparting of education to future generations was being ignored; that education was not being accorded the priority it deserved, which was non-compliance with Islamic Injunctions and non-enforcement of the Constitutional provisions, particularly Art.25A of the Constitution; that physical inspection of Government schools throughout the country conducted under the supervision of judicial officers brought to limelight the miserable conditions and numerous problems that afflicted schools both in urban and rural areas; that reports submitted before the Supreme Court during hearing of present petition revealed that some of the Government schools in urban areas of Province of Sindh had been forcibly occupied by influential persons, who were using the same as cattle sheds; that the educational system was facing problems of existence of ghost schools and absenteeism of teachers; that teachers' absenteeism, was one of the most serious forms of corruption in the education sector; that absenteeism of teachers could be a result of number of reasons including non-availability of transport, lack of residential accommodation, absence of infrastructure like classrooms, etc.; that causes of ever deteriorating educational standards included, inter alia, appointments/transfers (of teachers) on considerations other than merit, lack of public recognition of teachers in contrast to other professionals, e.g., doctors, engineers, lack of motivation, especially at primary school level, etc.; that a number of Commissions were appointed by the Government from time to time to suggest reforms in the educational system of the country, but it seemed that no serious effort had been made to implement the recommendations of said Commissions and achieve their object; that spirit of commitment and dedication on the part of teachers was urgent need of the hour to advance the cause of education; that system of inspection of Government schools by the Education Department needed to be revived because system of checks and balances in some form was essential for good governance in any public institution; that it was imperative for State functionaries at the district level to sit together and spend their time and energy in finding out ways and means whereby the mandate of Art.25A of the Constitution could be fulfilled in the best interests of the nation---Supreme Court directed that Accreditation Boards should be established in all Provinces and Islamabad Capital Territory with an authority, inter alia, to improve current miserable condition of the institutions and also to ensure removal of ghost schools immediately with penal action against responsible persons who had been receiving salaries and other perks without performing their duties; that such Accreditation Boards should continue to strive for achieving the objects and purposes for which they had been established; that recommendations of such Boards should be implemented forthwith by the competent authority so that improvement in conditions of schools was made visible; that Accreditation Boards may also consider approaching the respective Governments with the plea that teachers be allowed to perform their task of imparting education, and respective institutions may make alternate arrangements of manpower from other departments to achieve the objects for which teachers were engaged; that Provincial Governments should be bound to enforce Fundamental Rights enshrined in Arts.9 & 25A of the Constitution as in some of the Provinces legislation had already been made to enforce Art.25A, therefore, same might be acted upon strictly; that Provincial Governments and Islamabad Capital Territory must enhance budgetary allocations for improvement of education system and should also provide mechanism to ensure presence of students at primary, middle and high schools levels; that Provincial Governments through concerned authorities must ensure recovery of possession of school buildings, which had been illegally occupied by influential persons and if there was any litigation pending, the Registrars of respective High Courts should ensure the decision of such cases expeditiously, and that cases pending before the High Courts and Supreme Court concerning school properties should be disposed of expeditiously.

Fiaqat Hussain v. Federation of Pakistan PLD 2012 SC 224 ref.

Nazir Ahmed Bhutta, Advocate Supreme Court for Applicants (in C.M.A. 1386 of 2013).

Nemo for Applicants (in C.M.A. 300 of 2013).

Saleem Tariq Lone for Applicants (in C.M.A. 11 of 2013).

Zulfiqar Hussain Noon for Applicants (in C.M.A. 14 of 2013).

Babar Ali, DAG, Muhammad Shahid Khan, Miraj Muhammad Khan, AEA, CADD and Director Admn. FDE for ICT and Secretary CADD on Court's Notice.

Abdul Aziz Khan Khiljee, Additional AG, Syed Nazir Shah, Dy. Secretary and Seleem Akhtar Ansari, Dir. Education for Government of Balochistan on Court's Notice.

Naveed Akhtar, Additional AG and Hidayat Ullah, SO (Litigation) for Government of KPK on Court's Notice.

Muhammad Qasim Mirjat, Additional AG and Pervaiz Ahmad, Special Secretary Education for Government of Sindh on Court's Notice.

Jawad Hassan, Additional A.-G., Abrar Ahmad Mirza, Additional Secretary, Rana Abdul Qayyum, Director and Raja Ikram Abbasi, Law Officer for Government of Punjab on Court's Notice.

Date of hearing: 12th June, 2013.

2014 S C M R 474

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

Raja KHURSHID AHMED---Petitioner

Versus

MUHAMMAD BILAL and others---Respondents

Civil Petition No.484 of 2013, decided on 13th September, 2013.

(Against the judgment dated(sic.) of the Lahore High Court, Lahore.)

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

----S. 173---Police Order (22 of 2002), Art. 18---Re-investigation of case by police after filing of final Challan in Trial Court---Not barred---Exception stated.

There is no bar to the reinvestigation of a criminal case, and the police authorities are at liberty to file a supplementary Challan even after submission of the final report under section 173, Cr.P.C. However, this cannot be done after the case has been disposed by the Trial Court.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

(b) Criminal trial---

----Ipsi Dixit of police---Not binding on Court---Principles.

A Court of law is not bound by the Ipsi Dixit of police authorities, and rather should formulate its own independent views irrespective of the investigation whether or not to charge the accused with a particular crime.

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

----Ss. 173 & 227---Penal Code (XLV of 1860), Ss. 308, 448 & 506---Police Order (22 of 2002), Art. 18(6)---Re-investigation of case after Trial Court upheld deletion of S. 308, P.P.C. from F.I.R. by Investigation Officer---Scope---Charge under S. 308, P.P.C. could be framed against accused in case sufficient material was brought on record to prove commission of such offence and convinced Trial Court to do so---Police in such case would not be debarred from carrying out further investigation in case---Trial Court, after filing of supplementary challan including S.308, P.P.C. therein during re-investigation, would again apply its mind as to whether to charge accused with such crime or not.

(d) Police Order (22 of 2002)---

----Art.18(6)---Change of first investigation for passing of final order---Scope---Capital City Police Officer would have nothing to do with such change, rather his role would come into play at stage of second change of investigation---Head of Investigation in general Police would pass such order after applying his mind to facts and circumstances of case and his role was not that of a Post Office.

Anis Muhammad Shahzad, Advocate Supreme Court for Petitioner.

Malik Jawwad Khalid, Advocate Supreme Court along with Tanvir Iqbal, Advocate Supreme Court for Respondent No.1.

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

Atif Hussain, I.O. and Tariq Ilyas, S.-I. on Court Notice.

Date of hearing: 13th September, 2013.

2014 S C M R 478

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUHAMMAD SADIQ KHAN---Petitioner

Versus

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

Civil Petition No.1292 of 2013, decided on 12th August, 2013.

(On appeal from the judgment dated 4-10-2011, passed by the Peshawar High Court, D.I. Khan Bench, D.I. Khan in W.P. No.208 of 2006.)

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

----Ss. 8 & 10---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10---Constitution of Pakistan, Art.185(3)---Evacuee Trust Property---Determination---Permanent Transfer Deed, cancellation of---Petitioners assailed order passed by Chairman Evacuee Property Trust Board, declaring shop in question as Evacuee Trust Property resultantly Permanent Transfer Deed was cancelled---Validity---Transfer or utilization bona fide in satisfaction of claim of certain class of immovable properties were valid where it had satisfied condition laid down in S.10 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, that it was utilized bona fide and transfer was against satisfaction of verified claim and that in respect of such property a Permanent Transfer Deed had been issued prior to June, 1968---If any one of such conditions were missing, transfer of such property could not be validated under S.10 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Two conditions of property being utilized bona fide and was transferred against satisfaction of verified claim, was missing and auction of the shop was not in accordance with S.10 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Concurrent findings of three forums below, where it had been concluded that shop in question was an evacuee trust property and could not have been auctioned or sold under the law and findings were based on proper appreciation of evidence and applicable law---Supreme Court declined to interfere with concurrent findings so reached by lower forums, which were without exception---Petition was dismissed.

Assistant Administrator, Evacuee Trust Property v. Muhammad Ayub and others 2003 SCMR 841; Mst. Mariam Bi and 2 others v. The Islamic Republic of Pakistan through Secretary, Ministry of Religious and Minority Affairs and 4 others PLD 1990 Kar. 427 and Mst. Mariam Bi and others v. The Islamic Republic of Pakistan and 5 others 1993 SCMR 515 ref.

Khawaja Hassan Riaz, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 12th August, 2013.

2014 S C M R 484

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

SUO MOTU CASE NO.24 OF 2010: In the matter of

(Regarding Corruption in Hajj Arrangements in 2010.)

CRIMINAL ORIGINAL PETITIONS 68 AND 93 OF 2012

(Muhammad Mushtaq and another v. Federation of Pakistan and Khushdil Khan Malik v. Sohail Ahmed and others.)

And

HUMAN RIGHTS CASE NO.42130-G OF 2012

(Complaint of Dr. M. Naeed Akhter against re-employment of Dr. Pakeeza Haider.)

Suo Motu Case No. 24 of 2010, Criminal Original Petitions Nos.68, 93 of 2012 and Human Rights Case No. 42130-G of 2012, decided on 6th December, 2013.

(a) Islamic jurisprudence---

----"Hajj"---Meaning and connotation---Word "Hajj" (the holy pilgrimage) meant "to intend a journey" which connoted both the outward act of a journey and the inward act of intentions.

(b) Islamic jurisprudence---

----"Hajj"---Significance and reward of performance of "Hajj" in Islam stated.

(3:97); Darmi No.1792; Muslim, No.8; Bukhari, No.7 and Bukhari, No.1421 ref.

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

----S. 10---Posting of a civil servant as an Officer on Special Duty (OSD)---Legality---Placing an officer as OSD was tantamount to penalizing him because the expression 'OSD' was not known to either the Civil Servants Act, 1973 or the Civil Servants (Appointment Promotion and Transfer) Rules, 1973.

(d) Extradition Act (XXI of 1972)---

----S. 15---Requisition for surrender of persons to Pakistan---Scope---Pakistan being a sovereign State, Government was bound to exercise its authority to ensure that any person involved in a criminal case should be brought to Pakistan to face the law under the principle of rule of law.

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

----S. 14---Re-employment of a retired civil servant---Scope---Public interest---Re-employment of retired civil servants in services must be made in public interest because re-employment against a sanctioned post was likely to affect the junior officers, who were waiting for promotion to the next higher rank as their right of promotion was blocked---Junior officers had to wait till such re-employed officer completed his contract, and in the meanwhile, they had to face difficulties in maintaining their seniority, etc.---Promotion of an employee was not to be blocked to accommodate a retired officer, however, if the right of promotion was not blocked by re-employment, then such powers could be exercised, in an exceptional case.

Esta Code, Volume-1, Edition 2007; Suo Motu Case No.24 of 2010 PLD 2011 SC 277 and Suo Motu Case No.16 of 2011 PLD 2013 SC 443 ref.

(f) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction by the Supreme Court under Art. 184(3) of the Constitution regarding corruption and embezzlement in the arrangements of Hajj for the year 2010---Over-charging the Hajj pilgrims---Failure to provide accommodation---Investigation, hampering of---Corruption was done by political persons as well as government officers due to which Hajj pilgrims were robbed as not only extra money was charged from them but accommodation was not provided to them at one of the places---During investigation of the cases arising out of the Hajj scam, many officers/officials, who succeeded in collecting evidence against politicians/government officers involved in corruption/looting of money, were disassociated from the investigation and transferred to other positions---Hajj tour operators charged Rs.5,000 extra from each Hajj pilgrim in the name of security, which was in excess of the actual amount---Such conduct on part of Hajj tour operators was tantamount to looting the pilgrims, who were performing a sacred religious duty---Supreme Court directed that the Federal Government should expedite the matter of extradition of one of the accused of the present case from a foreign country and ensure his return to Pakistan as early as could be possible by taking all the necessary steps required in such regard; that concerned authorities should complete investigation of the cases against all the accused persons within shortest possible time and ensure completion of their trials as early as possible; that Secretary, Ministry of Religious Affairs should refer cases of Hajj operators who had been charging extra amount of Rs.5,000 from each pilgrim to Federal Investigation Agency; that all possible efforts should be made to ensure refund of said amount of Rs.5,000 to each pilgrim; that Secretary, Religious Affairs should ensure that in future no extra amount in the name of security etc. was received by Hajj operators; that strict measures should be adopted in future in order to avoid incidents of corruption in Hajj arrangements; that the Government should issue guidelines regarding Hajj arrangements including hiring of buildings for providing accommodation to pilgrims as well as transportation and other facilities during Hajj and that Federal Investigation Agency should take strict action against all those persons including politicians, officers and others in echelons of power, who interfered with and hampered the investigation of the present case---Constitutional petition was disposed of accordingly.

Qazi Ahmed Qureshi, Advocate Supreme Court for Petitioner (in Criminal Original Petition No.68 of 2012).

Nemo for Petitioner (in Criminal Original Petition No.93 of 2012).

Shah Khawar, Additional Attorney-General for Pakistan on Court Notice.

Hussain Asghar, Director, Khalid Rasool, Additional Director, Ghazanfar Abbas, Adnan and Zia-ul-Hassan, Inspectors for FIA.

Mian Khalid Habib, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Hamid Saeed Kazmi former Minister Religious Affairs.

Amjad Iqbal Qureshi, Advocate Supreme Court for Syed Yousaf Raza Gillani, former Prime Minister.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court (not present) for Abdul Qadir Gillani and Zain Iftikhar Sukheira (in C.M.As.56-57 of 2013).

Hasnat Rasool, Joint Secretary and Farid Islam Khattak, Dy. Secy. for M/o Religious Affairs.

Nemo for M/o Interior.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court (not present) and Shahbaz Kirmani, SO for Establishment Division.

Fauzi Zafar, ADPG for NAB.

M. Ikram Chaudhry, Advocate Supreme Court in C.M.A. No.218 of 2011.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Tour Operators.

Afnan Karim Kundi, Advocate Supreme Court (on behalf of Prof. Ghazala Mehmood), Abdul Hafeez Amjad, Advocate Supreme Court (in Criminal Original Petition No.68 of 2012), Air Vice Marshal (R) Aftab Hussain in person, Dr. Pakeeza Haider in person and Iftikhar Ahmed, NSPP in person for Officers on Contract.

Date of hearing: 20th November, 2013.

2014 S C M R 513

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Gulzar Ahmed and Iqbal Hameed-ur-Rahman, JJ

NOOR DIN and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No.1582 of 2013, decided on 21st November, 2013.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 26-6-2013 passed in W.P. No.16118 of 2013.)

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

----S. 3---Civil suit challenging validity of gift mutation---Limitation---Owner of property died in the year 1951 and his daughters transferred their inheritance share along with possession to their brother by a gift mutation dated 16-11-1971---Said gift mutation was challenged by legal heirs of the daughters by way of a civil suit forty (40) years after the gift mutation---Effect---Such suit on the face of record was barred by time and there was no need for recording evidence---Concerned revenue officer and patwari confirmed in court that brother and his legal heirs were enjoying possession of suit property since the year 1971---Revenue record showed that neither the daughters nor their legal heirs had received any share in the produce of the suit property---Petition for leave to appeal was converted into appeal and allowed, and suit challenging validity of gift mutation was dismissed as barred by time.

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

----O.VII, R.11---Rejection of plaint---Object and purpose---Object of powers conferred upon Trial Court under O.VII, R.11, C.P.C. was that the courts must put an end to litigation at the very initial stage, when on account of some legal impediments full-fledged trial would be a futile exercise.

Tariq Masood, Advocate Supreme Court for Petitioners.

Qamar-uz-Zaman Qureshi, Advocate Supreme Court for Respondents Nos.3 to 18.

Nazir Ahmed, Patwari Halqa Guru Mangat Nau Abad and M. Naeem Akhtar, Revenue Officer, Official present in Court.

Date of hearing: 21st November, 2013.

2014 S C M R 515

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

HUMAN RIGHTS CASE NO.42389-P OF 2013: In the matter of

Human Rights Case No.42389-P of 2013, decided on 20th November, 2013.

(Action taken on news clipping from 'Daily Dunya' dated 4-11-2013 regarding rape on a deaf and mute lady at Nankana Sahib.)

Constitution of Pakistan---

----Art. 184(3)---Human rights case under Art. 184(3) of the Constitution---Action taken by the Supreme Court on a news clipping regarding rape of a deaf and mute lady---Criminal negligence of police authorities in investigation of the case---Prima facie, it appeared that the concerned District Police Officer, being in supervisory position did not probe diligently into the inquiry conducted by his juniors and exonerated the culprits on the ground that there was contradiction in the statements of the victim and her brother (complainant) as to number of the accused; as according to the victim, rape was committed by three accused whereas her brother (complainant) stated that they were six in number---One of the culprits who was prima facie found to be involved was allowed to go scot free by the police in view of (exoneration) affidavit obtained from the complainant---Complainant had stated in court that he had given such affidavit under influence---Happening of the incident could not be denied in view of the medical report of the victim---On account of criminal negligence of concerned District Police Officer a poor lady who was deaf and dumb was subjected to criminal act and the police knowing well about their negligence tried to cover up their defects---Supreme Court directed that Provincial Inspector General of Police should initiate criminal proceedings against all concerned delinquent police officers/officials including the concerned District Police Officer as early as could be possible and should ensure an independent investigation without being influenced by anyone who was allegedly involved in the case; that for the purpose of initiating disciplinary proceedings against the concerned District Police Officer and other delinquents, the matter should be referred to the concerned authority in accordance with law---Human rights case was disposed of accordingly.

Nemo for Complainant.

Malik Faisal Rafique, Additional A.-G., Punjab, Irfan Ullah Khan, SP (Ivs.), Muhammad Ashraf, DSP, Legal and Farmaish Ali, SHO, P.S. Nankana Sahib on Court's Notice.

Date of hearing: 20th November, 2013.

2014 S C M R 522

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

SENATE SECRETARIAT through Chairman and another---Petitioners

Versus

Miss FAIQA ABDUL HAYEE---Respondent

Civil Petition No.1127 of 2013, decided on 7th November, 2013.

(On appeal against the judgment dated 27-6-2013 of the Islamabad High Court, Islamabad passed in I.C.A. No.593 of 2013.)

(a) Civil service---

----Deputation---Permanent absorption, right to---Scope---Absorption was not a vested right of an employee and the employer had the right and authority to terminate the deputation period or repatriate the employee back to his/her parent department.

Nazir Ahmed Rana v. Chairman, Board of Intermediate and Secondary Education and others 1998 SCMR 1172; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others 2010 SCMR 378; Contempt proceedings against Chief Secretary Sindh and others 2013 SCMR 1752; Asma Shaheen and 19 others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and 3 others 2013 PLC (C.S.) 391 and Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2013 PLC (C.S.) 915 ref.

(b) Civil service---

----Deputation---Permanent absorption of an employee on deputation---Departmental Promotional Committee, recommendations of---Legality---Performance Evaluation Report of an employee prepared by an officer, who subsequently was promoted and sat as Chairman of Departmental Promotional Committee at the time of considering said employee's permanent absorption---Effect---By sitting in the Promotional Committee and chairing it, such officer would render the recommendations of the Promotional Committee illegal---Illustration.

(c) Civil service---

----Deputation---Permanent absorption, right to---Scope---Mala fides, bias and discriminatory treatment showed by competent authority in not selecting employee for permanent absorption---Employee was transferred to Senate Secretariat on deputation basis, and during her service her permanent absorption was initiated and in such regard a NOC was also sought and accordingly granted by her parent department---Subsequently vide impugned notification she was repatriated back to her original department on the basis that Departmental Promotional Committee reviewed her Annual Confidential Reports sent from her parent department and found adverse remarks therein and her conduct and work in Senate Secretariat also remained unsatisfactory---Plea of employee that her absorption was refused because of personal mala fides of a person who initially served as Special Secretary and then was promoted as Secretary of the Senate; that said person reported about her work in his capacity as Special Secretary, and subsequently same person after becoming Secretary of Senate, sat as Chairman of Departmental Promotional Committee and considered his own reports; that Departmental Promotional Committee recommended permanent absorption of one of her colleagues despite the fact that no NOC was received from his parent department; that another of her colleague was appointed on deputation much after her but was still permanently absorbed much before the expiry of his deputation period, which showed mala fide and discrimination against her---Validity---Employee in question was recommended for promotion even in her Annual Confidential Reports, which contained adverse remarks---Such remarks reflected that employee was in a habit of expressing her opinion to the discomfort of her superiors, and in most cases such remarks would not be considered adverse remarks---Former Secretary of Senate had countersigned a Performance Evaluation Report of the employee observing that her performance was up to the mark and she was better than most officers---Many eminent senators had issued certificates to the employee wherein they had commended her work and considered her to be a true professional, but neither the Special Secretary nor the Departmental Promotional Committee considered such certificates---Chairman of Departmental Promotional Committee, who was Special Secretary at the time of preparing detrimental reports of employee, should have excused himself from sitting on the Promotional Committee when case of employee was being considered---Absorption case of one of employee's colleagues was taken up by the Departmental Promotional Committee despite the fact that no NOC was received from his parent department, while another colleague was permanently absorbed within less than two years of his deputation period---Employee in question had been discriminated against---Impugned notification whereby employee was sent back to her original department, was issued without any cogent and valid reasons and on the basis of personal bias, mala fide and discrimination---Impugned judgment of Division Bench of High Court was correct, whereby impugned notification was set aside, and case of employee's permanent absorption was remanded to the Senate Secretariat with the direction to pass a speaking order ignoring derogatory remarks in her Personal Evaluation Reports and taking into account NOC issued by her parent department, and allowing her to resume her duties from the date she was refused permission to attend office and also pay her salaries---Petition for leave to appeal was dismissed in circumstances.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 7th November, 2013.

2014 S C M R 531

[Supreme Court of Pakistan]

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

SYNTRON LIMITED---Petitioner

Versus

HUMA IJAZ and others---Respondents

C.P.L.A. No. 857 of 2007, decided on 25th August, 2009.

(On appeal from order of Lahore High Court, Lahore dated 4-10-2007 passed in Civil Miscellaneous Application No.1836 of 2007 in Writ Petition No.4384 of 2007.)

(a) Constitution of Pakistan---

---Arts. 199 & 184(3)---Civil Procedure Code (V of 1908), O. I, R.10(2)---Public interest litigation---Impleadment of a party to such litigation---Principles---More liberal stance was needed to be taken by the courts for impleadment of parties to such litigation, to enable it to hear all the parties concerned, who were likely to be affected by any judgment in such proceedings.

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

----O. I, R. 10(2)---Constitution of Pakistan, Art. 199---Public interest litigation---Impleadment of a party to such litigation---Principles---Necessary and proper party---Scope---Party whose "interest was likely to be prejudiced"---Constitutional petition was filed before the High Court in the nature of public interest litigation questioning the manufacturing and marketing of Woven Poly-Propylene ("WPP") bags and in such context direction was sought to stop any further procurement of such bags or any plans to store any essential daily use item like wheat in such bags---Applicant -company, which claimed to be manufacturer and supplier of WPP bags moved an application before the High Court under O.I, R. 10(2), C.P.C. to be joined as a respondent in the constitutional petition since decision of the petition was likely to affect their interest, and since it could render proper technical assistance to the court about the technical aspects of process of manufacturing of WPP bags---High Court refused said application---Validity---Held, in case constitutional petition was granted in terms of the prayer made therein, the interest of applicant-company was likely to be prejudiced considering the fact that it manufactured WPP bags---Joining of applicant-company as a respondent to the constitutional petition was not only proper but also necessary in such circumstances--- Even otherwise in cases involving issues of public interest litigation, more liberal stance was needed to be taken by the courts for impleadment of parties to such litigation, to enable it to hear all the parties concerned, who were likely to be affected by any judgment in such proceedings---Order of High Court was set aside and applicant-company was allowed to be joined as a respondent to the constitutional petition---Appeal was allowed accordingly.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos.1 and 2.

Habib-ur-Rehman, Storage and Enforcement Officer, Divisional Office Food, Rawalpindi for Respondent No.3.

Date of hearing: 25th August, 2009.

2014 S C M R 535

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant

Versus

MEMBER NIRC and others---Respondents

Civil Appeal No.407 of 2013, decided on 17th February, 2014.

(On appeal from the judgment of Lahore High Court, Lahore dated 26-11-2012 passed in W.P. No.22454 of 2012.)

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

----Ss. 53, 54 & 2(xxxii)---National Industrial Relations Commission (NIRC), jurisdiction of---Scope---Industrial dispute relating to a "trans-provincial employer"---Forum---Question as to whether a Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction in relation to such an industrial dispute---Status of employer or group of employers determined as to whether a Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction, and not the nature of the dispute---Once it was established through any means that the employer or group of employers had an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of over-riding and super imposing effect over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc.---When employer had its establishment or branches or industrial units in more than one Province, then recourse had to be made by the aggrieved party to the NIRC and not the Provincial Labour Court.

(b) Constitution of Pakistan---

----Art. 143---Inconsistency between Federal and Provincial law---Under provisions of Art. 143 of the Constitution, laws enacted by Parliament had been given over-riding and superimposing effect over laws enacted by a Provincial Assembly of any of the Provinces, and in case of any clash or repugnancy between the two, the laws enacted by the Parliament prevailed---On the touchstone of Art. 143 of the Constitution, an Act of Parliament had been placed on a higher pedestal and any Provincial law enacted by a Provincial Assembly shall give way to the Federal law enacted by Parliament, if the former was inconsistent or repugnant to the latter.

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

----Preamble---Provisions of Industrial Relations Act, 2012 had over-riding effect on all Provincial Labour laws.

Syed Naeem Bukhari, Advocate Supreme Court for Appellant.

Sheikh Riaz ul Haq, Advocate Supreme Court for Respondents Nos.1 and 3 to 6.

Syed Shahid Hussain, Advocate Supreme Court for Respondent No.2.

Ex parte Respondents Nos.7 and 8.

Date of hearing: 4th February, 2014.

2014 S C M R 541

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, HCJ, Jawwad S. Khawaja and Gulzar Ahmed, JJ

SUO MOTU CASE NO.16 OF 2011 ETC.: In the matter of

Suo Motu Case No.16 of 2011, decided on 1st November, 2013.

(Implementation proceedings of judgment of Supreme Court reported as PLD 2011 SC 997.)

Constitution of Pakistan---

----Arts. 9, 14, 25 & 184(3)---Suo motu action under Art. 184(3) of the Constitution regarding law and order situation in Karachi---Implementation proceedings of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan reported as PLD 2011 SC 997---Smuggling of illegal arms, ammunition, narcotics and goods into Karachi---Narcotics/drug trafficking---Generation of black money used for carrying out unlawful activities---Restoring writ of Government in Karachi---Law enforcing agencies, duty of---Scope---Supreme Court observed that it was important to provide complete protection to all the stake-holders in terms of constitutional provisions so that they may feel secure in earning their livelihood and participate in socio-economic activities; that for good governance and financial developments, existence of complete peace free from any threat to the lives and properties of the inhabitants was necessary because without adopting such measures, it was impossible to improve or make developments in socio-economic lives by making investments freely enabling persons to enjoy a free life in the society; that law had cast duty upon police and Rangers to discharge their functions as required under the relevant provisions which bound them to protect the lives and properties of the citizens; that persons who were made responsible or had been posted to discharge their functions were bound to expose themselves before all risks on account of their legal obligations and commitment notwithstanding having expectations of appreciation or otherwise; that Karachi was a port city, and extraordinary efforts were required by all the law enforcing agencies to restore the writ of the Government without extending any concession or relaxation to the culprits who had created not only law and order situation but at the same time were responsible for disturbing the economic lives of the inhabitants; that culprits were not committing crimes individually but had ganged up to indulge in nefarious activities as a result whereof the citizens of Karachi always felt threatened and nobody considered himself to be secure; that goods were being imported through ports in Karachi by evading duties and this money was being used for indulging in unlawful activities etc.; that it was the duty of the customs authorities, police, Rangers, Pakistan Coast Guards and Pakistan Maritime Security Agency posted at ports or different spots to curb such pilferage of taxes; that arms, ammunition as well as drugs were being smuggled into Karachi and despite availability of law enforcing agencies, as well as Anti-Narcotics Force, drugs/narcotics reached Karachi and the money being generated from such un-authorized and illegal resources was being spent in Karachi; that forces like Customs, Pakistan Coast Guard, Maritime Security Agency etc. were not willing to deliver and ensure that Karachi had to be cleansed from illicit arms and ammunition; that Anti-Narcotics Force should not feel any hesitation in controlling narcotics trafficking including matters related thereto under the scheme of Control of Narcotic Substances Act, 1997, as said Act equipped Anti-Narcotics Force with vast powers, including freezing assets of drug traffickers and bringing them to the book; that accused persons or their protectors were getting extraordinary financial help in the shape of managing flow of black money or funds; that Customs authorities had not shown any seriousness to ascertain contents of goods which had been brought into Pakistan in the name of Afghan Trade; that law enforcing agencies including Customs department were bound to discharge their duties to ensure that any import of goods was not being carried out contrary to law; that according to the reports filed by all concerned functionaries one could prima facie, infer that serious efforts were being made by the police, Rangers and civil administration to establish rule of law in Karachi, but it was too early to express complete satisfaction that law enforcing agencies had achieved maximum results to ensure enforcement of Arts.9, 14, 25 etc. of the Constitution; that the initiatives taken by the police and Rangers through their respective commandants operating in the field demonstrated their spirit and resolve that culprits were not above the law; that unless Karachi was cleansed from illicit arms and ammunition, it would become difficult to sustain the improved situation of law and order---Supreme Court directed that it should be top most priority of all law enforcing agencies to make all possible efforts to ensure rule of law and restoration of the writ of the Government in Karachi; that customs authorities were required to depute customs staff to inspect the record of dealers of arms and ammunition in Karachi to ascertain about their sale within or outside Karachi (during the last three years); that in such respect Deputy Commissioners of all the districts of Karachi shall also provide their cooperation and on completion of such exercise, reports of the same (district wise) shall be handed over to the Inspector-General of Police and the Director General, Rangers so that they may physically undertake exercise about the existence or otherwise about these arms and ammunitions and use of the same under the law; that holders of licensed arms and ammunition shall also be required to explain the purpose of purchasing the same and in such way law enforcing agencies should be in a position to ascertain as to whether the arms and ammunition had been properly used or not; that while physically checking the arms and ammunition, law enforcing agencies may also obtain declarations from the license holders that except the licensed arms etc. they were not in possession of any un-authorized arms and ammunitions, and in case of violation of terms and conditions of the licenses, law enforcing agencies shall proceed against the violators in accordance with law; and that Secretary Interior, Secretary Revenue/Chairman, Federal Board of Revenue, Secretary Finance and the Provincial Chief Secretary shall provide all possible efforts/support to all the law enforcing agencies in order to show the results as per the commitments of both the Provincial and Federal Government.

Ghulam Qadir Jatoi for Petitioners (in Criminal O.P. 96 of 2012).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Applicants (in C.M.A. 2664 of 2013).

Raja M. Irshad, Senior Advocate Supreme Court for Applicants (in C.M.A. 589-K of 2013).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Applicants (in C.M.A. 213 of 2013).

M. Yasin Azad, Senior Advocate Supreme Court for Applicants (in C.M.A. 149-K of 2013).

Dr. Farough Naseem, Advocate Supreme Court for Applicants (in C.M.A. 2033 of 2013).

Jamil Ahmed Virk, Advocate Supreme Court for Applicants (in C.M.A. 2219 of 2013).

Ms. Sofia Saeed Shah, Advocate Supreme Court for Applicants (in C.M.A. 3806 of 2013 etc.).

Mumtaz Ali Deshmukh, Advocate Supreme Court for Applicants (in C.M.A. 2596 of 2013).

Zia ul Haq Makhdoom, Advocate Supreme Court for Applicants (in C.M.A. 322-K of 2013).

K. A. Wahab, Advocate-on-Record for Applicants (in C.M.A. 3019 of 2013 etc.).

Mrs. Shiraz Iqbal Ch., Advocate-on-Record for Applicants (in C.M.A. 3820 of 2013 etc.).

Syed Mehmood Akhtar Naqvi for Applicants (in C.M.A. 2460 of 2013 etc.).

Syed Adil Gillani for Applicants (in C.M.A. 614-K of 2013).

Habib Ahmed Faridi for Applicants (in C.M.A. 3282 of 2013).

Muneer A. Malik, AGP and Muhammad Aslam Butt, DAG for Federation on Court's Notice.

Khalid Javed Khan, AG, M. Sarwar Khan, Additional AG, Adnan Karim, Additional AG, Saleem Akhtar, Additional P.G. and Syed Mumtaz Shah, Home Secretary for Government of Sindh on Court's Notice.

Shahid Hayat, Additional I.-G., Munir Ahmed Sheikh, DIG (East), Ali Sher Jakhrani, AIG (Legal), Capt. (R.) Azfar Hussain, SSP (AVCC) and Junaid Ahmed, SSP (East) for Sindh Police on Court's Notice.

Shahid Anwar Bajwa, Advocate Supreme Court and Major Ashfaque Ahmed, DA, JAG for DG Rangers on Court's Notice.

Yawer Farooqui, Advocate Supreme Court, M.A. Pirzada, Advocate Supreme Court, Nazar Muhammad Leghari, Consultant and Syed Zulfiqar Ali Shah, Member for Board of Revenue and Land Utilization Department on Court's Notice.

Maj. Gen. Zafar Iqbal Malik, DG, Brig. Abu Zar, Force Commander, Karachi, Col. (R) Akhtar Abbas, Director (Legal) and Major Sajjad, Incharge Intelligence for ANF on Court's Notice.

Brig. Shehzad Akhtar, DG and Maj. Shehzad Saleem Khan, DA, JAG for Pakistan Coast Guards on Court's Notice.

Raja Muhammad Iqbal, Advocate Supreme Court, Mrs. Masooda Siraj, Advocate Supreme Court, Muhammad Khalil Dogar, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record, Tariq Bajwa, Chairman, FBR, M. Riaz, DG Customs Intelligence, Muhammad Yahya, Chief Collector Enforcement, Nasir Masroor, Chief Collector of Customs and Khawar Fareed Manika, DG Afghan Transit for FBR/Customs Deptt. on Court's Notice.

Lt. Commander M. Afzaal Director (Legal) for Pakistan Maritime Security Agency on Court's Notice.

Zafarullah Rind, Manager (L) and Ramesh Lal Lund, Manager (S) for PQA on Court's Notice.

Nemo for Frontier Constabulary on Court's Notice.

Shaiq Usmani, Senior Advocate Supreme Court for the KPT on Court's Notice.

Nemo for the AGP on Court's Notice.

Abdullah Hanjra, Law Officer and Niaz Ahmed, Election Officer for the ECP on Court's Notice.

Najaf Mirza, Director Sindh and Syed Israr Ali, Additional Director for FIA on Court's Notice.

Date of hearing: 1st November, 2013.

2014 S C M R 570

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN through Secretary---Appellant

Versus

SULTAN AHMAD SHAMS and 17 others---Respondents

Civil Appeals Nos.581 to 598 of 2012, decided on 7th August, 2013.

(On appeal against a common Judgment dated 22-2-2012, passed by the Federal Service Tribunal, Islamabad, in Appeals Nos.1520(R)CS/2011, 1521(R)CS/2011, 1522-A(R)CS/2011, 1638(R)CS/2011, 1728(R)CS/2011, 1801(R)CS/2011, 1836(R)CS/2011, 1837(R)/CS/2011, 1838(R)CS/2011, 1990(R)CS/2011, 2026(R)CS/2011, 2031(R)CS/2011, 2041(R)CS/2011, 2042(R)CS/2011, 2054(R)CS/2011, 2055(R)CS/2011, 2071(R)CS/2011, 2072(R)CS/2011.)

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

----S. 4---Civil Service Regulations, Regln. 486---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether Special Additional Allowance, Special Relief Allowance, Ad hoc Relief Allowance and Dearness Allowance etc. were liable to be included in pensionable emoluments and were reckonable towards calculation of pension under the law.

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

----S. 4---Civil Service Regulations, Regln. 486---Emoluments---Basis of pension---Respondents were retired civil servants who claimed payment of pension by addition of Special Additional Allowance, Special Relief Allowance and Additional Ad hoc Relief---Service Tribunal allowed appeals filed by retired civil servants and directed to include the same in calculation of their pensionary benefits---Validity---Term "emoluments" was to be calculated upon what the officer was receiving immediately before his retirement i.e. Basic Pay, Senior Post Allowance, Special Pay of all types and nature, Personal Pay, Technical Pay, Indexed Pay, Increments accrued during Leave Preparatory to Retirement and any other emoluments which might be specially classed as pay---Term "emoluments" as defined by Civil Service Regulations 486, apparently seemed to be all inclusive and though word "include" had been used but it did not seem to enlarge the scope from the one that was enumerated in its items (a) to (h)---Term "include" as appearing in Civil Service Regulations 486, did not include alien and extraneous elements for calculation of emoluments rather it would confine itself to the incidence attached to or connected with enumerated items (a) to (h)---Service Tribunal in its judgment, omitted to consider Civil Service Regulations 486, although Federal Government in its para-wise comments had specifically raised defence that Civil Service Regulations 486 did not include allowances claimed by retired civil servants in emoluments reckonable towards calculation of pension---In Office Memorandums by which the allowances were granted, it was specifically noted that such allowances would not be treated as part of emoluments for the purpose of calculation of pension/gratuity and recovery of house rent---Judgment passed by Service Tribunal was not in accordance with law and suffered from legal infirmity and perversity and, therefore, was not sustainable---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Maqsud Ahmad v. The Accountant-General, Pakistan Revenue Islamabad and 2 others 1999 PLC (C.S.) 5; I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Secretary to the Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCMR 1904; Khursheed Latif and others v. Federation of Pakistan and others 2010 SCMR 1081 and N.P.D. Namboodripad v. Union of India AIR 2007 SC 1782 ref.

(c) Constitution of Pakistan---

----Art. 25---Civil servants on duty and retired---Classification---Discrimination---Pensioners have been classified as a separate group/class from the one, who are in service, the question of discrimination or violation of Art. 25 of the Constitution does not arise as the two groups are not to be dealt with in the same manner.

Dil Muhammad Alizai, DAG for Appellant.

Muhammad Munir Piracha, Senior Advocate Supreme Court for Respondents (in C.As. Nos. 581, 582, 584, 589, 591, 594 and 598 of 2012).

Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondents (in C.As. Nos.586 and 588 of 2012).

Respondent in person (in C.A. No.583 of 2012).

Respondent in person (in C.M.A. No.4451 of 2012).

Nemo for Respondents (in other cases).

Date of hearing: 11th February, 2013.

2014 S C M R 585

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

SUO MOTU CASE NO.18 OF 2010: In the matter of

(Suo motu action regarding violation of Public Procurement Rules, 2004 in procurement of billions of rupees of exchequer case by National Insurance Co. Ltd.)

C.M.As. 1710 and 1711 of 2012 in SMC 18 of 2010

(Ch. Shujaat Hussain etc. v. Zafar Ahmed Qureshi etc.)

C.M.As. 2457, 2772 and 3632 of 2012

(For impleadment of Ayyaz Niazi, Amin Fahim and De-freezing of accounts of Messrs Agro Tractors)

H.R.C. No.678-P of 2011

(Application by Syed Zahid Hussain and others)

Crl. O.P. 50 of 2011 in SMC 18 of 2010

(Contempt proceedings against Qamar Zaman Chaudhry, Abdul Rauf Chaudhry and Khushnood Akhtar Lashari)

C.M.A. 4821 of 2011 in SMC 18 of 2010

(In the matter of inquiry as per order dated 8-8-2011 passed in SMC 18 of 2010 regarding NICL Scam)

C.M.A. 2324 of 2012 in SMC 18 of 2010

(Inquiry report by Hon. Justice (R) Ghulam Rabbani in pursuance of order dated 15-11-2011)

Suo Motu Case No.18 of 2010, C.M.As. Nos.1710, 1711 of 2012 in S.M.C. No.18 of 2010, C.M.As. 2457, 2772, 3632 of 2012, H.R.C. No. 678-P of 2011, Criminal O.P. No.50 of 2011 in S.M.C. No.18 of 2010, C.M.A. No. 4821 of 2011 in S.M.C. No.18 of 2010 and C.M.A. No.2324 of 2012 in S.M.C. No.18 of 2010, decided on 22nd November, 2013.

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

----S. 9(a)(vi)---Contempt of Court Ordinance (V of 2003), S. 17(1)---Rules of Business, 1973, R. 5(11-A)---Constitution of Pakistan, Arts.184(3) & 204---Exercise of suo motu jurisdiction by the Supreme Court under Art. 184(3) of the Constitution regarding violation of Public Procurement Rules, 2004 by National Insurance Co. Ltd in procurement of properties and award of contracts causing losses worth billions of rupees to the public exchequer---Misappropriation of public money---Corruption and corrupt practices---Investigation, hampering of---Investigation into the case was carried out by Additional Director General, Federal Investigation Agency (FIA)---Accused officials created hurdles in the investigation process by attempting to transfer said officer from investigation of the case---Persons, who had a stake against fair investigation of the case by Additional Director General, FIA, continued their efforts to keep him away from the investigation and made attempts for the purpose of rendering his efforts ineffective---Indifferent attitude was shown by Federal Investigation Agency and other government functionaries including the then Secretary Interior, Secretary Establishment and Principal Secretary to Prime Minister during investigation of the case---Additional Director General, FIA was kept disassociated, in clandestine manner from investigation of case, and all possible unauthorized tactics were used to create obstacles to prevent him from conducting the investigation transparently---Notification of Establishment Division whereby services of Additional Director General, FIA were withdrawn was issued after Secretary Interior sent a letter to Secretary Establishment in uncalled for haste, who in turn forwarded the same letter to the then Prime Minister for approval, without sending any summary or apprising him that Additional Director General, FIA had been attached with the investigation of the case on the intervention of the Supreme Court in order to investigate the allegations of corruption---On 18-4-2011, during night time at about 9 or 10 p.m., notification withdrawing services of Additional Director General, FIA was issued, in pursuance of a verbal order of competent authority, and subsequently summary for same was allegedly got approved on 20-4-2011---No urgency as such existed to obtain order of transfer of Additional Director General, FIA on 18-4-2011 during night time and in such behalf no explanation had been put forward---Verbal order could only have been obtained and pressed into service in terms of R. 5(11A) of Rules of Business, 1973, if there was acute urgency, and without getting a transfer order there was likelihood of serious threat to national security etc.---Notification dated 18-4-2012 whereby Additional Director General, FIA was transferred from investigation of the case, prima facie, involved, the then Director General, FIA, concerned Director, FIA, Secretary Interior, Secretary Establishment and Principal Secretary to Prime Minister as they created hurdles and hampered the smooth and transparent investigation of the case---Secretary Interior and Secretary Establishment were liable for contempt of court and plea put forward by them in reply to show-cause notices under S.17(1) of the Contempt of Court Ordinance, 2003 read with Art.204 of the Constitution, were turned down and proceedings were postponed to frame charge against them---Supreme Court directed that, prima facie, said persons were required to be dealt with under S.9(a)(vi) of National Accountability Ordinance, 1999 as they wrongly exercised their authority to benefit the accused Chairman, NICL and others from public money, which had been looted through non-transparent transactions from NICL; that Chairman, National Accountability Bureau should take necessary steps to effect recovery of outstanding amounts that were due against different accused persons, and also effect the arrest of all those persons who had still not been arrested---Suo motu case was disposed of accordingly.

(b) National Insurance Company (Reorganization) Ordinance (XXXVII of 2000)---

----S. 12---National Accountability Ordinance (XVIII of 1999), S.9(a)(vi)---Public Procurement Rules, 2004, Rr. 4 & 20---Constitution of Pakistan, Art. 184(3)---Exercise of suo motu jurisdiction by the Supreme Court under Art.184(3) of the Constitution regarding violation of Public Procurement Rules, 2004 by National Insurance Co. Ltd in procurement of properties and award of contracts causing losses worth billions of rupees to the public exchequer---Chairman, National Insurance Company Ltd. (NICL), appointment of--- Legality---Misappropriation of public money---Corruption and corrupt practices--- Lack of open competitive bidding during procurement---Non-acceptance of lowest bid---Accused/Chairman of NICL allegedly engaged in corruption and corrupt practices during procurement of properties and award of contracts which caused losses worth billions of rupees to the public exchequer---Prima facie contractual appointment of accused/Chairman, NICL was made contrary to the Civil Servants (Appointment, Promotions and Transfers) Rules, 1973 because for appointment on contract said Rules were applicable---Summary for appointment of accused was submitted before concerned authorities, wherein three candidates were finalized and name of accused was placed last in the list in terms of priority---Ministry for Commerce approved said summary, whereafter, summary for approval of Prime Minister was prepared wherein name of accused was placed at number one (1) on the list in terms of priority---Principal Secretary to Prime Minister approved said summary and accused was appointed as Chairman, NICL on contractual basis---When the file for appointment of Chairman, NICL was placed before Additional Secretary, Ministry of Commerce for his approval of a name out of panel of three persons, instead of ensuring transparency in appointment through advertisement in newspaper, he forwarded the same for approval of the Minister of Commerce, as a result whereof the process of appointment was tainted with arbitrariness---After approval of the Commerce Minister, the summary was endorsed by concerned authorities and finally by the Prime Minister, despite the fact that name of accused was at serial No.3 of the list in terms of priority and the remaining two persons on the list were already enjoying the status of BS-21 officers--- Appointment of accused as Chairman NICL, was made without forwarding the criteria provided under S. 12 of National Insurance Company (Reorganization) Ordinance, 2000 to the Securities and Exchange Commission of Pakistan (SECP)---Ministry of Commerce got appointment of accused approved without any involvement whatsoever of the Securities and Exchange Commission of Pakistan---Corruption and corrupt practices were committed from day one i.e. when summary was sent for the appointment of accused as Chairman, NICL, which resulted in all the criminal deeds, actions, omissions and commissions---Documents placed on record made it patently clear that open competitive bidding did not take place nor was the lowest bid accepted by NICL in the procurement transactions---Violation of relevant procurement rules was a clear indication of corruption---Corruption, corrupt practices and misappropriation of billions belonging to public exchequer could have been possibly avoided if Ministry of Commerce adhered to Civil Servants (Appointment, Promotion and Transfers) Rules, 1973 and appointment was made through publication and Securities and Exchange Commission of Pakistan had conducted fit and proper test under S.12 of the National Insurance Company (Reorganization) Ordinance, 2000---Appointment of accused as Chairman, NICL was contrary to S. 12 of the National Insurance Company (Reorganization) Ordinance, 2000 and Rules framed thereunder, as non-transparent, illegal and unwarranted, and the then Secretary Interior, Secretary Commerce, Minister for Commerce, Secretary Establishment and Acting Principal Secretary to Prime Minister were involved in such appointment---Supreme Court directed that said persons were prima facie, liable to be dealt with under S.9(a)(vi) of the National Accountability Ordinance, 1999---Suo motu case was disposed of accordingly.

(c) Federal Investigation Agency Act (VIII of 1975)---

----Preamble & S. 4--- Investigation/inquiry by Federal Investigation Agency---Scope---Independence in carrying out investigation/inquiry---Federal Investigation Agency was an independent entity and its affairs were run by the Federal Investigation Agency Act, 1974---Federal Government, except for enjoying superintendence and administration of the said Agency, had not been empowered to interfere in the independent and transparent investigation of cases, particularly when there were allegations against any person(s) of corruption or corrupt practices, or cases which were covered by any of the provisions of the Schedule to Federal Investigation Agency Act, 1974---Any investigation/inquiry was required to be conducted independently without any influence/interference of any third party like the Government.

(d) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Persons involved in corruption and corrupt practices---Fair investigation---Supreme Court (in its jurisdiction under Art. 184(3) of the Constitution) was not debarred from ensuring fair investigation of a case, with the object to bring to book the persons who were involved in corruption and corrupt practices, without any discrimination, whosoever or how so influential they might be.

Vineet Narain v. Union of India AIR 1998 SC 889; Bank of Punjab v. Haris Steel PLD 2010 SC 1109 and Watan Party v. Federation of Pakistan PLD 2012 SC 292 ref.

(e) Words and phrases---

----"Public servant"---Definition stated.

P. V. Narasimha Rao v. State AIR 1998 SC 2120 quoted.

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

----S. 9(a)(vi)--- Corruption and corrupt practices--- Common intention/abetment by public servant---Scope---Section 9(a)(vi) of National Accountability Ordinance, 1999 covered crimes committed with common intention as well as abetment---Public servants who abetted the commission of corruption by allowing acts which it was their duty to stop should be proceeded against under S.9(a)(vi) of National Accountability Ordinance, 1999.

Muhammad Ali v. The State PLD 2004 SC 667; Abdul Khaliq v. The State 2006 SCMR 1886; Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292; In re corruption in Rental Power Plants 2012 SCMR 773; Jawed Iqbal Bokhari v. NAB PLD 2003 Lah. 669; Ashfaq Baig v. The State PLD 2004 Kar. 353; Muhammad Farooq Maan v. Director-General, Anti-Corruption 2010 PCr.LJ 997; Central Bureau of Investigation v. V.C. Shukla AIR 1998 SC 1406 and Krishna Govind Patil v. State of Maharashtra AIR 1973 SC 1388 ref.

(g) Words and phrases---

----"Corruption"---Concept of corruption as a disease for the socio-political system and its adverse effects stated.

Suo Motu Case No.15 of 2010 (Corruption in Pakistan Steel Mills Corporation PLD 2012 SC 610; State of Madhya Pradesh v. Ram Singh AIR 2000 SC 870; Bible, 2 Peter 2:19 and Al-Quran, Surah al-Baqarah, Verse 188 ref.

Anwar Kamal, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants (in C.M.A. No.101 of 2011).

S.M. Zafar, Senior Advocate Supreme Court (absent) for Applicants (in C.M.A. 3378 of 2010).

Wasim Sajjad, Senior Advocate Supreme Court for Applicants (in C.M.As. Nos. 1710 and 1711 of 2012).

Tariq Asad, Advocate Supreme Court (absent) for Applicants (in C.M.A. No.2457 of 2012).

Salman Aslam Butt, Advocate Supreme Court (absent) for Applicants (in C.M.A. No.3632 of 2012).

Arshad Ali Ch. Advocate-on-Record for Applicants (in C.M.A. No.2772 of 2012).

Malik Noor Muhammad Awan, Advocate Supreme Court for Applicants (in C.M.A. No.1575 of 2013).

Syed Safdar Hussain, Advocate-on-Record for Applicants (in C.M.A. No.1707 of 2013).

Anwar Mansoor Khan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Applicants (in C.M.As. Nos.2722-2723 of 2013).

Shah Khawar, Additional AGP on Court's Notice.

Qudratullah Marwat, Director, FIA Lahore, Basharat Shahzad, Additional Director, FIA Lahore, Altaf Hussain, Additional Director, FIA, Karachi, Jamil Ahmad Khan Mayo, Assistant Dir., FIA, Lahore, M. Aftab Butt, Assistant Director, FIA, Lahore, Muhammad Ahmad, Assistant, Director, FIA, Lahore, Khalid Anees, Assistant Director, FIA, Lahore, Mubashar Tirmizi, Assistant Director, FIA, Lahore, M. Sarwar, Inspector, FIA, Lahore and Saraj Inspector, FIA, Karachi for FIA.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Altaf Hussain, Assistant Chief and Umar Hameed, Dy. Secy for M/o Commerce.

Nusrat Hussain, Executive Director (ED), Syed Saad Shah, AED and Imran Arshad, DM for NICL.

Nemo for M/o Finance and SECP.

Nazir Ahmed, DS (FIA) for M/o Interior.

Ch. Shujjat Hussain (Absent) and A. Rehman Malik for Respondents (in C.M.A. No.2324 of 2012).

Qamar Zaman Ch. (in person), Abdul Rauf Chaudhry (in person) and Khushnood Akhtar Lashari (absent) for Alleged contemnor (in Criminal O.P. No.50 of 2011).

Date of hearing: 5th November, 2013.

2014 S C M R 630

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Muhammad Ather Saeed, JJ

MUHAMMAD FAROOQ---Petitioner

Versus

ABDUL WAHEED SIDDIQUI and others---Respondents

Civil Petition No.333-K of 2013, decided on 27th August, 2013.

(On appeal from the judgment dated 22-5-2013, passed by the High Court of Sindh, Karachi in C.P. No.S-1371 of 2011.)

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

----O. XIII, R.4---Document---Admissibility, objection to---Principle---Once any document was exhibited without objection from opposite side such document cannot be termed as inadmissible evidence.

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

----S. 8---Constitution of Pakistan, Art. 185(3)---Fixation of fair rent---Rent Controller after conclusion of evidence allowed application of landlord and fixed fair rent---Validity---Landlord had pleaded that prevailing rental value of premises in question was not less than Rs.25,000 per month---Rent Controller while granting relief was not bound merely by prayer clause but had to look into whole of pleadings and thereafter to grant relief as might be arising from it---Rent matter was in a nature of quasi-judicial proceedings and provision of Civil Procedure Code, 1908, were not strictly applicable---Technicalities could not be allowed to come in the way of granting relief in such proceedings---Supreme Court declined to interfere in the judgment passed by High Court as the same was unexceptionable---Petition was dismissed.

Mst. Muneera Kaleemuddin and 4 others v. Muhammad Mahmood Alam and another 1991 SCMR 1028; Abdul Hamid v. Abdul Ghani 1992 MLD 1588; Abdul Ghaffar and another v. Mst. Noor Jehan Malik 1988 SCMR 1410; Habib Bank AG Zurich v. Nazir Ahmed Vaid and others 2007 MLD 131 and Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152 ref.

Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2011 SC 158 and Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954 distinguished.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Respondent No.1.

Date of hearing: 27th August, 2013.

2014 S C M R 637

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

Syed TAHIR HUSSAIN MEHMOODI and others---Petitioners

Versus

Agha Syed LIAQAT ALI and others---Respondents

Civil Petitions Nos. 24-Q and 22-Q of 2014, decided on 10th February, 2014.

(Against the judgment dated 26-12-2013 of the High Court of Balochistan, Quetta passed in C.R. No.354 of 2012.)

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

----O. XVII, R. 3---Closure of defendant's evidence for failing to produce evidence---Court allowing defendant to record his statement after closure of his evidence---Scope---Plaintiff adduced and completed his evidence, while the evidence of defendants was closed in terms of O. XVII, R.3, C.P.C. as they availed considerable opportunities but failed to adduce evidence---High Court in its revisional jurisdiction allowed defendants to adduce evidence but only to the extent of recording their own statements---Validity---High Court gave defendants an opportunity of appearance/examination as their own witness (or through attorney), after seemingly considering the fact that as the defendants were not marked absent in the order sheet of the Trial Court on the date when O. XVII, R.3, C.P.C. was applied, therefore some margin should be given to them and it should be assumed that they were present---Such approach adopted by the High Court could possibly be a valid approach in the facts of the present case---Probability of the defendants' presence and they offering themselves to be examined as witnesses could not be ruled out from the material available on the record, and the view thus formed by the High Court could not be held to be absolutely illegal and unfounded---Petition was dismissed accordingly.

Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 ref.

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

----O. XVII, R. 3---Court may proceed notwithstanding either party fails to produce evidence---Scope---Provisions of O.XVII, R. 3, C.P.C. were penal in nature and should be strictly construed and applied---Once the case of a delinquent litigant squarely fell within the purview and mischief of O.XVII, R. 3, C.P.C. then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits---If such an approach was liberally followed and resorted to there would be no discipline in the adjudication of civil litigation and the delinquent whose case though was squarely hit and covered by the penal provisions of O.XVII, R. 3, C.P.C would be given a chance to his advantage and to the disadvantage of his opposing side---Where O.XVII, R. 3, C.P.C. was duly attracted, the court had no option except to take action in accord therewith.

(c) Constitution of Pakistan---

----Art.4---Right of individual to be dealt with in accordance with law---Court, duty of---Scope---To apply and to adhere to law was not a mere technicality, rather it was a duty cast upon the court as per Art.4 of the Constitution.

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

----O. XVII, R. 3---Closure of defendant's evidence for failing to produce evidence---Discretion of court to allow defendant to record his statement after closure of his evidence---Scope and procedure---In every case where action against a delinquent party was imperative and his evidence had to be closed because the case squarely and eminently fell within the mischief of O.XVII, R. 3, C.P.C., the court while closing the evidence was not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date---Obviously if the party was present in court and desired to appear as a witness, the court should not decline his request, rather it shall be appropriate that where the party was present, the court while applying O.XVII, R. 3, C.P.C. and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which had not been availed---However, if such fact was not so recorded by the court though the party was present and sought its examination such party should initially move an application to the court for examination if the case had not yet been decided---Where the case was finally decided, a ground should be specifically set in the memo of appeal/ revision as the case might be, about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to such effect.

Riaz Ahmed Khan, Advocate Supreme Court for Petitioners (in C.P. 24-Q of 2014).

Hadi Shakeel Ahmed, Senior Advocate Supreme Court and Ayaz Swati, Advocate Supreme Court for Petitioners (in C.P. No.22-Q of 2014).

Riaz Ahmed Khan, Advocate Supreme Court for Respondents (in C.P. No.22-Q of 2014).

Hadi Shakeel Ahmed, Senior Advocate Supreme Court and Ayaz Swati, Advocate Supreme Court for Respondents (in C.P. No.24-Q of 2014).

Date of hearing: 10th February, 2014.

2014 S C M R 643

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

PROVINCE OF SINDH and others---Petitioners

Versus

GHULAM HASSAN BUGHIO---Respondent

Civil Petition No.302-K of 2013, decided on 13th November, 2013.

(On appeal from the judgment dated 15-5-2013 of the High Court of Sindh, Karachi passed in C.P. No.D-3506 of 2011.)

(a) Constitution of Pakistan---

----Arts. 212 & 199---Constitutional petition before High Court under Art. 199 of the Constitution by a civil servant, before joining service, challenging his allocation to a particular post/group despite availability of a seat in the group chosen by him as his first choice---Maintainability---Such petition did not relate to terms and conditions of service of civil servant but his claim for allocation to a particular post/department before joining service---Constitutional petition in question was not barred by Art. 212 of the Constitution and was maintainable.

(b) Sindh Public Service Commission Recruitment Management Regulation 2006---

----Reglns. 0329 & 1108---Constitution of Pakistan, Art. 185(3)---Re-allocation of post to candidate next on the merit list after non-occupation of such post---Scope---Post "falling vacant" and post "not occupied at all"---Difference---Provincial Government advertised combined competitive examination to fill posts of Deputy District Officer (Revenue) and Section Officers---Candidate/respondent sat for said examination and indicated post of Deputy District Officer (Revenue) as his first priority---After successfully passing the examination candidate in question was placed at S.No. 44 of the merit list of nominees, and since all 43 nominees who had surpassed him were given post of Deputy District Officer (Revenue),candidate in question was placed at S.No. 1 of list of Section Officers---Subsequently one of the nominees, who was placed at S.No. 8 of the list of Deputy District Officer (Revenue) opted not to join service---Candidate in question, resultantly, requested Provincial Government to post him as Deputy District Officer (Revenue) since that was his first choice and a vacancy had occurred in the said group due to non-joining of one of the nominees---Provincial Government did not respond to candidate's request, who then filed a constitutional petition before the High Court, which was allowed on the basis that post of Deputy District Officer (Revenue) did not fall vacant but was not occupied at all, therefore such post had to be filled and should have been given to the candidate in question who was next on the merit list---Plea of Provincial Government that in view of Regulations Nos.0329 & 1108 of Sindh Public Service Commission Recruitment Management Regulation 2006, no re-allocation could be made from one post to another post, in which a vacancy arose, and that such vacant post had to be re-advertised---Validity---Regulations No.0329 of Sindh Public Service Commission Recruitment Management Regulation, 2006 only provided that post should be re-advertised when no suitable candidate was available and therefore it was not mandatory that in every case when any vacancy occurred the post had to be re-advertised---Regulation No.1108 also did not create any hurdle in accommodating the candidate in question to the post of Deputy District Officer (Revenue), which was not occupied---Candidate in question was on the top of the list of post of Section Officers and had the same rural domicile as that of the nominee who did not occupy post of Deputy District Officer (Revenue), therefore there was no bar in re-allocating candidate in question to Deputy District Officer(Revenue) group---Judgment of High Court was unexceptionable and did not warrant any interference---Petition for leave to appeal was dismissed in circumstances.

Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through Chairman and others 1993 SCMR 1124 and Dr. Faizur Rehman and others v. N.-W.F.P. Public Service Commission, Peshawar and others 1996 SCMR 589 distinguished.

Adnan Karim, Additional A.-G. along with Sohail Qureshi, Additional Secretary Services, Abdul Aziz, AD Regional Office Karachi and Hadi Bux Kalhoro, Secretary SPSC for Petitioners.

Respondent in person.

Date of hearing: 13th November, 2013.

2014 S C M R 649

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

GOVERNMENT OF PUNJAB through Secretary, Excise and Taxation Department, Lahore and others---Appellants

Versus

METROPOLE CINEMA and others---Respondents

Civil Appeals Nos.1068 to 1080 of 2004 and 397 of 2006, decided on 2nd May, 2013.

(On appeal from judgment of Lahore High Court, Lahore dated 23-12-2003, 22-12-2003, 7-10-2003 and 19-5-2004 passed in W.P. Nos.6050 to 6052, 6091, 6092, 8172, 8173, 3515, 8191, 16074 of 2003, I.C.As. Nos.781, 557 of 2002 and W.P. No. 8889 of 2003 respectively.)

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Constitution of Pakistan, Arts. 185 & 199---Appeal to Supreme Court against judgment of High Court dismissing constitutional petition without availing remedy of intra-court-appeal thereagainst---Maintainability---Nothing on record to justify appellant's act to bypass remedy of intra court appeal---Supreme Court dismissed appeal for being not maintainable and directed appellant to avail remedy of intra court appeal before High Court, which would examine question of limitation leniently in order to decide matter on merits in accordance with law.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan PLD 2011 SC 961 rel.

Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132 and Federation of Pakistan v. Dewan Petroleum (Pvt.) Ltd. PLD 2012 SC 189 distinguished.

Ahmed Rauf, Additional Advocate-General, Punjab for Appellants (in all appeals).

Ali Akbar Qureshi, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents (in C.As. Nos.1068, 1069, 1071, 1072, 1073 and 1075 of 2004).

Nemo for Respondents (in C.A. No. 1078 of 2004).

Nemo for Respondents (in C.As. Nos. 1070, 1074, 1076, 1077, 1079 and 1080 of 2004).

Zahid Hussain Khan, Advocate Supreme Court for Respondents (in C.A. No.397 of 2006).

Date of hearing: 2nd May, 2013.

2014 S C M R 652

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Gulzar Ahmed JJ

SECRETARY SINDHI ADBI BOARD, JAMSHORO and another---Appellants

Versus

Mirza DABEER HUSSAIN BAIG---Respondent

Civil Appeal No.47-K of 2013, decided on 16th December, 2013.

Civil service---

----Contract employee of Adbi Board (a registered society)---Regularization in service on the orders of the Chairman of the Board/Provincial Minister of Education---Legality---Under the constitution of the Adbi Board, no power was vested in the Minister/Chairman of the Board to make appointments/regularizations of Board's employees---Clause 5 of constitution of the (Sindhi) Adbi Board specifically provided that the Board shall appoint such officers and servants as it deemed necessary to carry out the purpose of its constitution---Said clause of the constitution was essential to ensure that there was no nepotism, favouritism or arbitrary decisions in making of appointment/regularization of employees of the Board---Order passed by Chairman of the Board, whereby employee in question was regularized was without lawful authority and of no legal effect---Appeal was allowed accordingly.

Ansari Abdul Latif, Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellants.

Ms. Rukhsana Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 16th December, 2013.

2014 S C M R 655

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

Mst. NASEEM BEGUM and others---Appellants

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others---Respondents

Civil Appeals Nos.449-L of 2009, 284 to 286, 283-L, 586-L to 591-L, 609-L to 613-L, 637-L to 640-L, 767-L of 2013, 817, 818 of 2010, 56-L, 63-L of 2011, 623-L to 628-L, 723-L, 726-L to 731-L of 2013, Civil Petitions Nos. 1253-L of 2011 and 1516-L to 1521-L of 2013, decided on 4th February, 2014.

(Against judgments of Lahore High Court, Lahore, passed in R.F.As. and I.As. Nos.435 of 2007, 183 of 2008, 190 of 2008, 911 of 2011, 443 of 2007, 440 of 2007, 434 of 2008, 16 of 2008, 1024 of 2011, 100 of 2012, 98 of 2008, 183 of 2008, 97 of 2012, 99 of 2012, 827 of 2012, 424 of 2013, 183 of 2008, 724 of 2010, 725 of 2010, 726 of 2010, 727 of 2010, 728, 2010, 724 of 2010, 423 of 2013, 183 of 2008, 359 of 2013, dated 16-3-2009, 12-10-2012, 7-7-2010, 5-5-2009, 13-5-2010, 12-10-2012, 26-3-2013, 12-10-2012, 26-3-2013, 11-4-2013, 12-10-2012, 14-10-2010, 11-4-2013, 12-10-2013, 2-6-2010, 12-10-2012, 31-7-2013 etc.)

Insurance Ordinance (XXXIX of 2000)---

----Ss. 115 & 121--- Constitution of Pakistan Art. 185(2)---Interpretation of S.115 of the Insurance Ordinance, 2000---Application of law to insurance policies issued in Pakistan---Right of insurance policy holder to sue in respect of insurance policy before Insurance Tribunal---Insurance policies issued before the date of commencement of Insurance Ordinance, 2000---Jurisdiction of Insurance Tribunal---Contention was that S.115 of the Insurance Ordinance, 2000 despite its clear wording to the contrary, would also extend to insurance policies issued before the date of the commencement of the Insurance Ordinance, 2000, and consequently, Insurance Tribunal set up under the Insurance Ordinance, 2000 would have jurisdiction to adjudicate upon such matters---Held, that the contention was not only misconceived but was also frivolous as it flew in the face of express wording of the provisions of S.115 of the Insurance Ordinance, 2000.

State Life Insurance Corporation v. Mst. Sadaqat Bano 2008 CLD 1069; State Life Insurance Corporation of Pakistan v. Sadaqat Bano PLD 2008 Lah. 461; State Life Insurance Corporation of Pakistan v. Naseem Begum 2009 CLD 1413; Azhar Iqbal v. State Life Insurance Corporation of Pakistan 2009 CLD 910; Ijaz Begum v. State Life Insurance Corporation of Pakistan 2009 CLD 1317; Nasreen Begum v. State Life Insurance Corporation 2009 CLD 1480; Rukia Bivi v. State Life Insurance Corporation of Pakistan 2009 CLD 1213; Ghulam Raza Sajid v. State Life Insurance Corporation of Pakistan 2010 CLD 792; Riffat Asghar v. State Life Insurance Corporation of Pakistan 2010 CLD 1123 and Fatima Begum v. State Life Insurance Corporation of Pakistan 2010 CLD 1171 ref.

Liaquat Ali Butt, Advocate Supreme Court for Insurance Claimants (in all cases).

Ibrar Ahmed, Advocate Supreme Court for SLIC (in C.As. Nos.449-L and 767-L of 2013).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for SLIC (in C.As. Nos. 284 to 286 of 2013).

Ali Akbar Qureshi, Advocate Supreme Court for SLIC (in C.As. Nos.609-L to 613-L, 726-L to 731-L and C.Ps. Nos.1516-L to 1521-L of 2013).

Jehanzaib Bharwana, Advocate Supreme Court along with Safdar Ali Qureshi, Law Officer for SLIC (in C.As. Nos.56-L, 63-L, 283-L, 586-L to 591-L, 623-L to 628-L, 631-L to 640-L and 723-L of 2013 and C.P. No.1253-L of 2011).

Date of hearing: 4th February, 2014.

2014 S C M R 659

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, HCJ, Khilji Arif Hussain and Sh. Azmat Saeed, JJ

LAND ACQUISITION COLLECTOR, BOR PUNJAB---Appellant

Versus

Syed HAROON IFTIKHAR and others---Respondents

Civil Appeals Nos.1453 and 1454 of 2013, decided on 8th January, 2014.

(On appeal from the judgment dated 8-10-2013 passed by the Lahore High Court, Lahore in R.F.As. Nos.572 and 650 of 2012.)

Land Acquisition Act (I of 1894)---

----S. 23--- Acquisition of land--- Quantum of compensation, determination of---Agreement to sell relating to land situated near the acquired land, reliance on---Scope---Land Acquisition Collector vide his award determined quantum of compensation at Rs. 300,000 per marla along with 15% compulsory acquisition charges for acquired land---Referee Court enhanced quantum of compensation to Rs.600,000 per marla with 15% compulsory acquisition charges--- High Court further enhanced compensation rate of acquired land to Rs.800,000 per marla relying on an agreement to sell relating to land situated near acquired land--- Plea on behalf of Acquiring authority that quantum of compensation was enhanced by the High Court to Rs.800,000 without any cogent evidence on record qua the market value of suit land; that landowner did not raise any claim in writing with regard to quantum of compensation when he was issued notice for acquisition of land; that Referee Court and High Court at the time of enhancing compensation did not consider the documentary evidence relating to average sale price of land in the area concerned in the preceding years---Validity---Agreement to sell relied upon by the High Court to enhance quantum of compensation was not tenable evidence particularly when land subject matter of such agreement to sell had not been sold---Said agreement to sell could not have been made basis for determining market value or quantum of compensation, and such fact was agreed to by the counsel for landowner---Counsel for landowner stated that he would have no objection if judgment of Referee Court was restored---Impugned judgment of High Court was set-aside in view of fair stand taken by both counsel and that of Referee Court settling quantum of compensation at Rs. 600,000 per marla with 15% compulsory acquisition charges was restored---Appeal was partly allowed accordingly.

Ahmed Awais, Advocate Supreme Court for Appellant (in both cases).

Ahmed Waheed Khan, Advocate Supreme Court for Respondent No.1 (in both cases).

Date of hearing: 8th January, 2014.

2014 S C M R 664

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

MUNAWAR HUSSAIN---Petitioner

Versus

CHAIRMAN, APPEAL COMMITTEE (II) PUNJAB, PAKISTAN BAR COUNCIL and others---Respondents

Civil Petition No.975 of 2013, decided on 5th December, 2013.

(On appeal from judgment dated 31-5-2013 of the Lahore High Court, Lahore, passed in W.P. No.1500 of 2013.)

Punjab Rules of Business of Bar Associations Memorandum of Association---

----R. 64---Provincial Bar Council, jurisdiction of---Grievance relating to elections of Tehsil Bar Association---Forum---Once the elections of Tehsil Bar were held, the aggrieved party had to invoke jurisdiction of Provincial Bar Council by filing an election petition under R. 64 of the Punjab Rules of Business of Bar Associations Memorandum of Association and could not approach the Pakistan Bar Council for the redressal of his grievance, unless an order was passed by the Provincial Bar Council on the application of an aggrieved party in terms R. 64 of the said Rules---Appeal was allowed and on consent of both parties Supreme Court directed that they may be relegated to the position prior to holding of polls for the Tehsil Bar in question, and that Chairman of the Election Board of said Tehsil Bar should hold fresh elections.

Tariq Masood, Advocate Supreme Court with Petitioner.

Suhail Mehmood, DAG on Court's Notice.

Muhammad Arshad, Secretary, Pakistan Bar Council for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Hafiz Muhammad Anwar Zia for Respondent No.4 (in person).

Date of hearing: 5th December, 2013.

2014 S C M R 665

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, HCJ., Nasir-ul-Mulk, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim, Ijaz Ahmed Chaudhry, Gulzar Ahmed, Sh. Azmat Saeed, Iqbal Hameedur Rahman and Mushir Alam, JJ

GENERAL (R) PARVEZ MUSHARRAF---Petitioner

Versus

NADEEM AHMED (ADVOCATE) and another---Respondents

Civil Review Petitions Nos.328 and 329 of 2013 in Constitutional Petitions Nos.8 and 9 of 2009, decided on 30th January, 2014.

Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI--- Review of Supreme Court judgment--- Held, that review petitions were barred by time; case-law cited in that behalf was distinguishable and grounds urged by the petitioner neither fell within the purview of review jurisdiction of the Supreme Court nor were tenable on merit, to warrant interference in the judgment under challenge--- Review petitions were dismissed, accordingly.

Syed Sharif ud Din Pirzada, Senior Advocate Supreme Court assisted by Ch. Faisal Hussain, Advocate for Petitioner.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court assisted by Shazia Yasin, Advocate and Osman Ibrahim, Advocate for Petitioner.

Dr. Khalid Ranjha, Senior Advocate Supreme Court, Ahmed Raza Kasuri, Senior Advocate Supreme Court, Barrister Muhammad Ali Saif, Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Petitioner.

Rasheed A. Rizwi, Advocate Supreme Court/Caveator and Asim Iqbal, Secretary Sindh High Court Bar Association for Respondent No.1 (in C.R.P. 329 of 2013).

Dates of hearing: 28th, 29th and 30th January, 2014.

2014 S C M R 667

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

MUHAMMAD AMIN---Appellant

Versus

ZULFIQAR and another---Respondents

Civil Appeal No.29 of 2012, decided on 13th February, 2014.

(On appeal from the judgment dated 12-4-2011 of the Lahore High Court, Multan Bench passed in Civil Revision No.324-D of 2000.)

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

----S. 13--- Constitution of Pakistan, Art. 185(2)--- Demand of pre-emption--- Talb-e-Muwathibat--- Mentioning of time and place of making Talb-e-Muwathibit---Contention of the appellant/pre-emptor was that the law laid down by the Supreme Court in Mian Pir Muhammad and another v. Faqir Muhammad reported as PLD 2007 SC 302 with regards to particulars of Talb-e-Muwathibat vis-a-vis time and place of making Talb-e-Muwathibit was per incuriam---Held, argument of pre-emptor/appellant was not persuasive, and appeal was therefore without merit---Appeal was dismissed, in circumstances.

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

Mir Afzal Malik, Advocate Supreme Court for Appellant.

Mirza Ejaz Baig, Advocate Supreme Court for Respondents.

Date of hearing: 13th February, 2014.

2014 S C M R 668

[Supreme Court of Pakistan]

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

MUHAMMAD SHARIF---Appellant

Versus

The STATE---Respondent

Criminal Suo Motu Review Petition No.8 of 2013 in Criminal Appeal No.598 of 2005, decided on 10th January, 2014.

(Against the judgment dated 6-5-2009 passed by this Court in Criminal Appeal No.598 of 2005.)

Criminal Procedure Code (V of 1898)---

----S. 35---Penal Code (XLV of 1860), Ss. 302, 342 & 365---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Suo motu review by Supreme Court---Qatl-e-amd, wrongful confinement, kidnapping or abducting with intent secretly and wrongfully to confine person---Multiple offences committed by accused part of the same transaction/incident---Concurrent running of sentences---Scope---Offences of murder, wrongful confinement and abduction were committed by the accused, in the present case, which were part of the same transaction, and, thus, ordinarily sentences passed for such offences ought to have been ordered to run concurrently with each other---Such aspect had escaped the notice of the Supreme Court while deciding appeal of accused---Supreme Court, in suo motu review, ordered that all sentences of imprisonment passed against accused, in such circumstances, should run concurrently with each other.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Tahir Iqbal Khattak, Additional Prosecutor-General, Balochistan for the State.

Date of hearing: 10th January, 2014.

2014 S C M R 669

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

KHADIM HUSSAIN---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Appeal No.891 of 2007, decided on 23rd January, 2014.

(On appeal from the judgment dated 15-4-2002 passed by the Lahore High Court, Lahore in Civil Revision No.2301 of 1986.)

Civil Procedure Code (V of 1908)---

----Ss. 115 & 12(2)---Civil revision---Compromise between parties---Consent decree---Dismissal of civil revision on merits despite such consent decree---Legality---Appellant had filed civil revision before the High Court during pendency of which both parties compromised and a consent decree was passed--- Subsequent to the consent decree, respondent filed an application under S. 12(2), C.P.C., challenging the consent decree/compromise, whereafter High Court decided the civil revision on merits---Validity---Application of respondent under S.12(2), C.P.C. was not decided---Without the compromise judgment and decree being set aside under S. 12(2), C.P.C., no order could be passed on merits---Impugned judgment of High Court whereby it decided the civil revision on merits was set aside in circumstances and Supreme Court directed that application filed by respondent under S. 12(2), C.P.C., shall remain pending with the High Court and shall be decided at the earliest---Appeal was disposed of accordingly.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.

Ex parte for Respondents Nos.1, 5 and 6.

Tariq Masood, Advocate Supreme Court for Respondents Nos.2(a), (c), (d), (e), (f), 4 and 7 to 9.

Mudassir Khalid Abbasi, AAG, Punjab along with Asim, Naib Tehsildar, Pasroor and M. Ayub, Patwari on Court's Notice.

Date of hearing: 23rd January, 2014.

2014 S C M R 671

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Mushir Alam, JJ

The STATE---Appellant

Versus

Syed ALI BAQAR NAQVI and others---Respondents

Criminal Appeal No.13-K of 2013, decided on 12th November, 2013.

(On appeal from order of High Court of Sindh, Karachi dated 15-10-2012 passed in Criminal Acquittal Appeal No.111 of 2012.)

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

----S. 417---Limitation Act (IX of 1908), Sched. I & Art. 157---Appeal against acquittal---Categories---Limitation period for filing different categories of appeals against acquittal stated.

Under section 417, Cr.P.C. right to appeal against acquittal was categorized into three classes---Under section 417(1), Cr.P.C., it was exclusively the Provincial Government, which may direct the Public Prosecutor to avail such legal remedy before the High Court from an original or appellate order of acquittal for which no period of limitation was prescribed, thus such appeal would be regulated by Art. 157 of the Limitation Act, 1908, which provided a limitation period of six months for filing such appeal.

Under section 417(2), Cr.P.C. when an order of acquittal was passed in a case instituted upon a complaint, then the remedy of filing appeal against such order in the form of special leave to appeal had been conferred only to the complainant, which remedy, in terms of section 417(3), Cr.P.C. could be availed by him within sixty (60) days from the date of order of acquittal.

Under section 417(2A), Cr.P.C., right to appeal against an order of acquittal, whether original or appellate, had been conferred to a person aggrieved against such order, who might avail such remedy of filing acquittal appeal within thirty (30) days.

Prescribed period of limitation of sixty (60) days and thirty (30) days respectively was available only for those acquittal appeals, which were filed by "the complainant" or "person aggrieved" respectively, while no specific period of limitation as regards acquittal appeals under section 417(1), Cr.P.C. was prescribed, which would thus be regulated by Art. 157 of Limitation Act, 1908, under which period of limitation was six months.

(b) Interpretation of statutes---

----Where the plain and simple meaning of a provision of law was clearly understandable without any ambiguity then nothing was to be presumed or imported from outside.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Ibadul Hassan, Advocate Supreme Court for Respondent No.2.

Nemo for Respondents Nos.1, 3 to 5.

Date of hearing: 12th November, 2013.

2014 S C M R 676

[Supreme Court of Pakistan]

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

ASAF FASIHUDDIN KHAN VARDAG---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Constitutional Petition No.33 of 2013, decided on 25th September, 2013.

(Under Article 184(3) of the Constitution challenging the appointment of DG, CAA and delay in completion of NBBIAP.)

(a) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Enforcement of Fundamental Rights under the Constitution by the Supreme Court---Supreme Court had wide powers in terms of Art. 184(3) of the Constitution to ensure that acts/actions of other organs of the State, namely, Executive and Legislature did not breach the Fundamental Rights guaranteed by the Constitution---Under the principle of trichotomy of powers, the Judiciary was entrusted with the responsibility of enforcement of Fundamental Rights, which called for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights were nullified and the rule of law was upheld in the society.

(b) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Mala fides of State functionaries---Discharge of constitutional duty by the State functionaries in deviation to the spirit of the Constitution was anathema to the Constitution and was challengeable on diverse grounds including mala fide and colourable exercise of power for ulterior motive---In exercise of power of judicial review it was not possible for the judiciary to confer validity and immunity to the acts or actions which suffered from mala fide.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; In the matter of Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Shahid Orakzai v. Pakistan PLD 2011 SC 365; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752; Watan Party v. Federation of Pakistan PLD 2011 SC 997 and Maulana Abdul Haque Baloch v. Government of Balochistan PLD 2013 SC 641 ref.

(c) Public authority---

----Duty to act fairly---Scope---No unfettered power existed under public law---Public authority possessed powers only to use them for public good and this imposed a duty to act fairly.

Food Corporation of India v. Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 = (1993) 1 SCC 71 ref.

(d) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Contracts awarded/entered into by Government bodies---Judicial review of process of awarding of contract squarely fell within the jurisdiction of the Supreme Court---In matters in which the Government bodies exercised their contractual powers, the principle of judicial review could not be denied---However, in such matters, judicial review was intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest---Power of judicial review was exercised if it was brought to the notice of the court that in the matter of award of a contract power had been exercised for any collateral purpose.

Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 = AIR 1979 SC 1628]; Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492 = AIR 1999 SC 393]; Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617 = AIR 2000 SC 801]; Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. [(2007) 8 SCC 1]; Asia Foundation and Construction Ltd. v. Trafalgar House Construction [(1997) 1 SCC 738]; Tata Cellular v. Union of India AIR 1996 SC 11 = [(1994) 6 SCC 651]; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Matter of Privatization of Pakistan Steel Mill PLD 2010 SC 759; HRC No.4688 of 2006 PLD 2001 SC 619 and In the matter of: Alleged Corruption in Rental Power Plants and others 2012 SCMR 773 ref.

(e) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Interference in decision making process of Government bodies---Scope---In matters of judicial review the basic test was to see whether there was any infirmity in the decision making process---Since the power of judicial review was not an appeal from the decision, the court could not substitute its decision for that of the decision maker---Duty of the court was to confine itself to the question of legality---Concern of the court should be whether a decision-making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers---Court was not to determine whether a particular policy or particular decision taken in the fulfilment of such policy was fair---Court was only concerned with the manner in which such decision had been taken---Interference with the decision making process was warranted where it was vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it was actuated by mala fides.

Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 = AIR 1979 SC 1628]; Tata Cellular v. Union of India [AIR 1996 SC 11 = (1994) 6 SCC 651]; Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492 = AIR 1999 SC 393]; Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617 = AIR 2000 SC 801]; Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. [(2007) 8 SCC 1] and Suo Motu Case No.13 of 2009: In the matter of Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad PLD 2011 SC 619 ref.

(f) Constitution of Pakistan---

----Art. 184(3)---Judicial review of administrative actions under Art.184(3) of the Constitution---Grounds---Administrative action was subject to control by judicial review upon three main grounds; namely, illegality which meant that the decision-maker must understand correctly the law that regulated his decision-making power and must give effect to it; irrationality which meant unreasonableness; and procedural impropriety---Said grounds were only broad grounds but it did not rule out addition of further grounds in course of time.

Tata Cellular v. Union of India (1994) 6 SCC 651 ref.

(g) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Tenders floated by the Government---Government was the guardian of the finances of the State and it was expected to protect the financial interest of the State---Right to refuse the lowest or any other tender was always available to the Government but the principles laid down in the Constitution had to be kept in view while accepting or refusing a tender---No question of infringement of constitutional provisions existed if the Government tried to get the best person or the best quotation---Right to choose could not be considered to be an arbitrary power, but if the said power was exercised for any collateral purpose, the exercise of such power would be struck down.

(h) Constitution of Pakistan---

----Art. 184(3)--- Judicial review of administrative actions under Art.184(3) of the Constitution---Scope---Judicial quest in administrative matters was to find the right balance between administrative discretion to decide matters whether contractual or political in nature or issues of social policy, thus they were not essentially justifiable warranting the need to remedy any unfairness---If, however, there was such an unfairness, it was to be set right by judicial review, which was concerned with reviewing not the merits of the decision in support of which the application for judicial review was made, but the decision-making process itself.

Tata Cellular v. Union of India AIR 1996 SC 11 = (1994) 6 SCC 651 ref.

(i) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Procedure adopted by a Government body for entering into a contract---If the contract had been entered into without ignoring the procedure which could be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then court could not act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract---Once the procedure adopted by an Authority for purpose of entering into a contract was held to be against the mandate of the Constitution, the courts could not ignore such an action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court would amount to encroachment on the exclusive right of the executive to take such decision.

Sterling Computers Ltd. v. Messrs M. and N. Publications Ltd. AIR 1996 SC 51 ref.

(j) Constitution of Pakistan---

----Art. 184(3)---Judicial review under Art. 184(3) of the Constitution---Scope---Government projects involving public money---Transactions involving public money must be made in a transparent manner for the satisfaction of the people, who were the virtual owners of the national exchequer, which was being invested in the projects---Court had the duty to ensure that relevant laws were adhered to strictly to exhibit transparency.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. 2004 SCMR 1274 and In re: Action regarding huge loss to public exchequer in awarding LNG Contract PLD 2010 SC 731 ref.

(k) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution regarding corruption, illegalities, irregularities, mismanagement and delay in construction and completion of New Benazir Bhutto International Airport Project, Islamabad ("the Airport")---Total of seventeen (17) contracts were awarded during the construction of the Airport---Due to extremely poor performance of Project Management Consultant, coupled with mismanagement and favouritism to selected contractors by the concerned officials of Civil Aviation Authority, the project right from its onset suffered tremendous setbacks, causing grave loss to the national exchequer---During construction of the Airport certain joint ventures were formed and amended, but without following any procedure---In most of the joint ventures, leading foreign companies (lead partners) either remained absent or did not participate with men and material as per the contract, most probably in collusion with their supporting companies in Pakistan (local partners)---Most of the joint ventures were not performed in their true sense---Documents revealed that at the time of pre-qualification because of joint venture with a foreign company, extra points were given as a result of which tenders were won---Foreign company which won the tender for the project was supposed to provide key persons i.e. qualified project and construction managers and various specialists and engineers, but the main job was done by unqualified people of local supporting partner with insufficient capacity and capability, thus damaging the project---Civil Aviation Authority and Project Management Unit failed to implement the clauses of the contract with the lead partner/foreign company in their true spirit, and even did not terminate the contract, thus the project suffered heavy losses---Inquiry Report regarding the Airport was very clear on the mismanagement and corruption in the project for which Civil Aviation Authority and Project Management Unit were responsible---Contracts awarded to seventeen (17) contractors and their subsequent performance as noted in the Inquiry Report and Audit Report was not transparent and thus militated against fundamental rights of general public/tax payers---Project of the Airport, prima facie, suffered from illegalities, irregularities, corruption and corrupt practices and the delay caused in its completion was on account of illegal deeds, omissions and commissions of the consultants and all other concerned persons who were responsible for selecting the site, preparing designs and awarding contracts to the contractors---Contractors, prima facie were responsible for causing delay in completion of the Airport and on account of such conduct the cost of the project had increased from Rs.37 billion to Rs.73 billion---Supreme Court directed that Project Director and concerned officials of project management unit of the Airport should be replaced with competent officials and if such personnel were not available within Civil Aviation Authority, then they should be taken on deputation from other department(s); that Secretary aviation should evolve a strategy by making a steering committee to monitor the project and to ensure that all procurements hence forth were as per specification and relevant Public Procurement Regulatory Authority Rules and they should not be left to the Project Management Consultant and Project Management Unit alone; that DG Investigation, Federal Investigation Agency should himself supervise the inquiries/investigations which were to be conducted for fixing criminal liabilities upon all the concerned persons/contractors; that Federal Government should take all necessary steps to ensure the completion of the project as early as could be possible; that subject to contractual agreements the consultants, designers and all other contractors to whom contracts had been awarded, shall continue to complete the work and the competent authority if need be, should proceed against any one of them for the purpose of ensuring completion of the work as early as possible and if so required, should constitute a committee headed by a senior officer to supervise the completion of work and to remove any difficulties; that in respect of over-payment of Rs.1556.47 million to one of the contractors, such amount was to be deposited by the said contractor with the Exchequer within a period of seven days---Constitutional petition was disposed of accordingly.

(l) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 9---Recruitment Rules for Civil Aviation Class-I Posts, issued by the Ministry of Defence (Aviation Division), vide S.R.O. 822(IC)/70 dated 8-8-1970, Schedule---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Director-General, Civil Aviation Authority---Plea of petitioner was that appointment of Director-General in question was not made on merit as the law and rules on the subject were not adhered to; that during the tenure of said Director-General, corruption, illegalities, irregularities, mismanagement and delay was caused in the construction and completion of New Benazir Bhutto International Airport, Islamabad and Multan International Airport; and that favour shown by the competent authority in appointing said Director-General in a non-transparent manner had caused a massive loss to the public exchequer---Validity---Director-General in question had joined Civil Aviation Authority as coordinator in charge and in such capacity he had obligation to coordinate the construction of the two airports---Construction work essentially related to engineering discipline, but Director-General in question admittedly was not an engineer, therefore, before making his appointment it was necessary to apply the test of 'fit and proper' person capable of supervising the construction of two mega projects---As to what reasons persuaded the Federal Government to make appointment of Director-General in question as a Coordinator in charge were not understandable---Perusal of Schedule appended with Recruitment Rules for Civil Aviation Class-I Posts issued by the Ministry of Defence (Aviation Division), vide S.R.O.822(IC)/70, which prescribed the appointment of Director General, Civil Aviation Authority suggested that there was possibility to make promotion of incumbent of next lower post in any technical branch of the department---Perusal of summary moved for appointment of Director-General in question, showed that, on the desire of Prime Minister said summary was moved and appointment was made without following the principle of 'transparent appointment' and applying judicial mind keeping in view the rules and regulations---Appointment of Director General was to be made in a transparent manner after applying the relevant rules, and not on the basis of ambition and desire of someone else, who was interested in his appointment---Supreme Court declared that appointment of Director-General in question was made in a non-transparent manner without strictly following the available law on the subject, therefore, notification of his appointment dated 18th July, 2012 was illegal, void ab initio and of no legal consequence---Supreme Court directed the Federal Government to appoint a Director General, Civil Aviation Authority as early as could be possible by following the law and rules on the subject as well as the principles of transparency---Constitutional petition was disposed of accordingly.

Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205 ref.

(m) Constitution of Pakistan---

----Arts. 9 & 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Appointments made by the Government---Such appointments must be made on merit, in the public interest and also to enforce Fundamental Rights of the public, lest it should cause damage to the institutions responsible for running different affairs of the Government and also for generating funds for the purpose of spending on welfare of the citizens with a view to improve their standard of life in terms of Art.9 of the Constitution---If there was corruption and corrupt practices on account of appointment of concerned functionaries, including pursuance of unlawful exercise of power or causing loss in running affairs of public institutions, the citizens were bound to be affected directly or indirectly and therefore their Fundamental Rights under Art.9 of the Constitution would not be enforced in letter and spirit.

Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159 and Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205 ref.

Asaf Fasihuddin Khan Vardag, Advocate Supreme Court, Petitioner (in person).

Muneer A. Malik, Attorney-General for Pakistan on Court's Notice.

Shah Khawar, Additional A.G.P. and Qari Abdul Rashid, Advocate-on-Record for Respondents Nos.1 and 2 (Government of Pakistan through Secretaries Defence and Establishment Division).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, Syed Safdar Hussain, Advocate-on-Record assisted by Barrister Saad Buttar, Adv. with Air Marshal (R.) Khalid Chaudhry, DG, CAA for Respondent No.3 (Air Marshal (R) Khalid Ch.).

Shahid Hamid, Senior Advocate Supreme Court assisted by Ms. Asma Hamid, Advocate and M.S. Khattak, Advocate-on-Record for Respondent No.4 (Ch. Muhammad Munir).

Uzair Karamat Bhandari, Advocate Supreme Court assisted by Saad Aamir, Advocate and M.S. Khattak, Advocate-on-Record for Respondent No.5 (Messrs Louis Berger).

Afnan Karim Kundi, Advocate Supreme Court assisted by Barrister Momin Ali Khan, Advocate, Mehmood A. Sheikh, Advocate-on-Record, Obaid ur Rehman Abbasi, Senior Law Officer, Eng. Muhammad Musharaf Khan, Project Director (NBBIAP) and Aamir Habib Sikandar, Dy. PD for CAA.

Muhammad Ali Gardezi, Secretary for Aviation Division.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Technical Associates.

Kh. Haris Ahmad, Senior Advocate Supreme Court assisted by Barrister Ali Shah Gillani, Advocate and M.S. Khattak, Advocate-on-Record for LTH (JV).

Syed Ali Raza, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Messrs China State Construction Engineering.

Asad Rajput, Advocate Supreme Court for FWO.

Tariq Aziz, Advocate-on-Record for Messrs Sambu Construction and Sachal Engineering.

Dr. Tariq Hassan, Advocate Supreme Court, Jawwad Hassan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Hussain Construction.

Syed Ali Zafar, Advocate Supreme Court and Raja Zafar Khaliq, Advocate Supreme Court for Habib Construction.

Tariq Mehmood, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Messrs Al-Tariq Construction.

Imtiaz Rasheed Siddiqui, Advocate Supreme Court and Hasnain Ibrahim Kazmi, Advocate Supreme Court for Messrs Ciemens.

Shahid Kamal Khan, Advocate Supreme Court and Muhammad Siddiuqi Baloch, Advocate-on-Record for Messrs Xinjiang Beixin.

Muhammad Munir Paracha, Senior Advocate Supreme Court for Messrs Gammon Pakistan.

Babar Ali, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Messrs Izhar (Pvt.) Ltd.

Syed Ishtiaq Haider, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Messrs Jaffer Brothers.

Nemo for Remaining Contractors.

Dates of hearing: 31st July, 19th, 22nd August, 3rd, 4th, 5th, 10th, 11th, 12th, 24th and 25th September, 2013.

2014 S C M R 743

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Gulzar Ahmed and Muhammad Ather Saeed, JJ

SALAMAT ALI alias CHAAMA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.240 of 2012, decided on 31st August, 2012.

(Against the order dated 7-6-2012 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.1496-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 497---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 41---Bail, refusal of---Bail sought on ground of statutory delay in conclusion of trial---Misconduct by counsel for accused---Progress of the case obstructed by counsel for accused---Accused condoning attitude of his counsel by retaining him---Effect---Counsel for accused appeared before Trial Court and adopted an attitude which hindered the administration of justice when he said that….

---Contention on behalf of accused that to date testimony of even one witness had not been recorded in the case so far, was of little relevance considering the attitude of the counsel for accused---Trial Court had exercised extreme patience and restraint in the present case---Accused acting through and represented by his counsel had actually obstructed the progress of the case---Accused was still represented (at trial) by the same counsel---Accused by retaining the same counsel had, in effect, adopted and condoned the attitude of his counsel--- Supreme Court observed that a competent, diligent and ethical Bar was an indispensable component of the judicial system; that the system could not function properly if members of the Bar did not adhere to the code of conduct prescribed under the Legal Practitioners and Bar Councils Act, 1973---Bail petition was dismissed in circumstances and Supreme Court directed that a copy of present order should be sent to the Punjab Bar Council for disciplinary proceedings against the counsel in question, and another copy should be sent to the concerned Chief Justice of the High Court.

Rahim Bux and others v. The State PLD 1986 Kar. 224 and Zahid Hussain Shah v. The State PLD 1995 SC 49 distinguished.

Maqbool Elahi Malik, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional P.-G., Punjab for Respondent No.1.

Munir Ahmed Bhatti, Advocate Supreme Court for Respondent No.2.

Date of hearing: 31st August, 2012.

2014 S C M R 747

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ejaz Afzal Khan, JJ

SALAMAT ALI alias CHAMMA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.86 of 2014 in Criminal Petition No.240 of 2012, decided on 26th February, 2014.

(Report of Secretary, Punjab Bar Council, Lahore)

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 41---Constitution of Pakistan, Art. 37(d)---Code of conduct for advocates---Misconduct by an advocate before the Trial Court---Disciplinary proceedings taken by the Punjab Bar Council against such advocate---Propriety---Supreme Court observed that Art. 37(d) of the Constitution stipulated that "the State shall … ensure inexpensive and expeditious justice", but in the present case, it was apparent that there were hindrances placed before the Trial Court which resulted in denial of the said constitutional imperative; that the disciplinary mechanism of the Legal Practitioners and Bar Councils Act, 1976 and the proceedings taken by the Punjab Bar Council, in the present case, against the advocate in question appeared, prima facie, to have fallen short of the standards set out for Advocates in the code of conduct prescribed under the said Act---Supreme Court held that it was inter alia, for such reasons that court would like to examine the law (on the subject) and, in the light thereof the decision of the Punjab Bar Council Tribunal---Supreme Court directed that since notice issued to advocate in question had been returned unserved, therefore fresh notice should be issued to him.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 3---Bar council---Purpose---Code of conduct for advocates---Bar existed for the purpose of ensuring access to and delivery of justice---Bar was also meant to stand up for upholding the rule of law, but it could discharge these functions only if its members abided by their code of conduct and were subjected, like everyone else, to the rule of law.

Khalid Umar, Assistant Secretary/Law Officer for Punjab Bar Council on Court's Notice.

Date of hearing: 26th February, 2014.

2014 S C M R 749

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

MUHAMMAD ZAMAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.457 of 2000, decided on 6th January, 2014.

(On appeal from the order dated 26-5-1998 of the Lahore High Court, Lahore passed in Criminal A. No.375 of 1992, M.R. No.229 of 1992 and Criminal Rev. No.660 of 1992)

Per Ejaz Afzal Khan, J.; Iqbal Hameedur Rahman, J., agreeing; Anwar Zaheer Jamali, J. dissenting. [Majority view]

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

----Ss. 302, 307 & 34---Qatl-e-amd, common intention---Reappraisal of evidence---Independent witnesses abandoned---Contradictions between statements of prosecution witnesses---Previous enmity---Probability of false implication---Widened net of implication to rope in more accused persons---Injuries not corroborating statements of injured witnesses---Effect---Accused and co-accused persons were alleged to have launched an attack on complainant party which resulted in death of two persons and caused injuries to two victims---Trial Court awarded death sentence to two accused persons, while two other accused were sentenced to life imprisonment---Nine co-accused persons were acquitted by Trial Court--- High Court acquitted all accused and co-accused persons---Validity---Witnesses whose testimony could have been independent had been abandoned by the prosecution---Real brother of the complainant who was examined as a prosecution witness denied that the occurrence was witnessed by the complainant, and thereby contradicted other prosecution witnesses who stated that complainant had in fact witnessed the occurrence---Contradictions existed between F.I.R. and evidence of prosecution witnesses regarding nature of weapon used by accused persons during the occurrence---According to the F.I.R. as many as seventeen (17) persons were charged but effective shots had been attributed to four, but according to the statements of prosecution witnesses effective shots had been attributed to five accused persons---Allegedly all the assailants were standing close to each other and so were the victims, thus it was humanly impossible to discern who fired the shot and whose shot hit the deceased or the injured particularly in a situation which was reigned by panic and pandemonium---Number of assailants in the circumstances of the case appeared to have been exaggerated---Seemingly most of the accused persons had been charged because of previous enmity---Incident might have been enacted by two of the accused persons because one of the deceased was alleged to have illicit relations with their sister, but other accused and co-accused who had no visible nexus with such part of the story had also been roped in---Acquittal of co-accused persons was not challenged with seriousness either before the High Court or the Supreme Court---Firearm entry wound found on the person of one of the prosecution witnesses caused by a shot fired from a distance of 13 feet was accompanied by blackening, which was not possible beyond 3 feet, especially when it had never been the case of prosecution witnesses that any of the assailants fired from a close or contact range--- Prosecution version was full of doubts from whatever angle it was looked at---Judgment of acquittal passed by High Court did not warrant any interference in circumstances---Appeal was dismissed accordingly.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Arts. 19, 49 & 78---F.I.R.---Evidentiary value and relevance---F.I.R. could not be treated as substantive evidence unless its maker affirmed its content on oath and passed through the test of cross-examination, but it could be looked into in terms of Art. 19 of the Qanun-e-Shahadat, 1984 as a relevant fact for having been said by a person who happened to see or hear something about the occurrence as a bystander or a passerby shortly before or after the occurrence inasmuch as it formed part of the same transaction---F.I.R. could be looked into as a relevant fact to un-husk the lies, distortions and half-truths introduced at a subsequent stage if proved in terms of Art. 78 of the Qanun-e-Shahadat, 1984 which provided for proof of signature and handwriting of person alleged to have signed or witnessed such document---F.I.R. could also be looked into as a relevant fact for having been entered in the relevant register in terms of Art. 49 of the Qanun-e-Shahadat, 1984 so long as it did not amount to confession.

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

----S. 302--- Qatl-e-amd--- Reappraisal/appreciation of evidence---Scope---Customary practice of implicating many accused persons for the offence--- Due to such practice of throwing wide net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the innocent or those actually responsible for the commission of the crime, the court was required to exercise much greater care and circumspection while appraising evidence---Testimony of the witnesses who were not only closely related to the deceased but also had a strong motive to falsely implicate the accused had to be scanned carefully in such circumstances---Illustration.

(d) Medical jurisprudence---

----Firearm entry wound---"Blackening"---Scope---Blackening was found, if a fire-arm like shot-gun was discharged from a distance of not more than 3 feet.

Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354 ref.

(e) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt if found reasonable, was enough to warrant acquittal of the accused.

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

----S. 417--- Appeal against acquittal--- Double presumption of innocence---Scope---When initial presumption of innocence was strengthened on the acquittal of the accused, interference in such acquittal order was not warranted simply because another view was equally possible---Illustration.

Per Anwar Zaheer Jamali, J.; disagreeing with Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ. [Minority view]

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

----Ss. 302, 307 & 34---Qatl-e-amd, common intention---Reappraisal of evidence---Accused and co-accused persons were alleged to have launched an attack on complainant party which resulted in death of two persons and caused injuries to two victims---Trial Court awarded death sentence to two accused persons, while two other accused were sentenced to life imprisonment---Nine co-accused persons were acquitted by Trial Court---High Court acquitted all accused and co-accused persons---Validity---Apart from oral evidence of seventeen (17) prosecution witnesses, sufficient documentary evidence was brought on record by the prosecution side to support and corroborate its case based on the ocular testimony of two (main) prosecution/eye-witnesses---Evidence of said two eye-witnesses remained consistent and confidence inspiring during their examination-in-chief, and during lengthy cross-examination also, their testimony remained un-shattered---Evidence of both said eye-witnesses was recorded after more than five years of the occurrence, thus, any minor discrepancy in the nature of weapon used by any particular accused etc. was of no material consequence to shatter their evidence; more so, in the circumstances when a person of average memory and ordinary prudence was not expected to be a firearm expert, who could disclose the nature of weapon used in the crime with precision, that too after five years of the occurrence---Fact that both the said eye-witnesses sustained firearm injuries during the occurrence was fully established from the record and in such circumstances, their evidence could not have been disbelieved or discarded by the High Court on mere fact that it did not tally to the contents of the F.I.R.---Visualizing the whole occurrence in the backdrop of ocular evidence, site sketch, photographs of baithak, where the occurrence took place and the number of participants/ accused involved in the commission of crime, the happening of such event could not have concluded in few seconds or a minute or two, therefore, it could not be said that narration of all the facts in the F.I.R. was false or concocted or result of previous enmity---Evidence showed that complainant rightly stated that he witnessed the occurrence, although not from the very beginning till the end---Question as to how a blackened firearm entry wound was caused on the person of one of the deceased , despite firing having been made from a distance of 13 feet, could be explained by perusal of the site sketch, which furnished that during indiscriminate firing, one of the accused might have reached close to the said deceased to fire at him---Such fact also gained support from the deposition of one of the eye-witnesses---Another corroborative piece of evidence which escaped the sight of the High Court was photographs taken by a professional photographer arranged by police, which showed that from the outside intense firing was made inside the baithak, leaving marks of fire shots on the outer door of the baithak as well as its backside and front wall---Injuries on the person of deceased attributed to accused persons were fully corroborated by medical evidence in the form of post-mortem reports---Weapons were recovered from two of the accused persons on their pointation, and according to Forensic Science Laboratory report crime empties recovered from the spot matched one of the said weapons---One of the accused pleaded that he had a defective eye-sight, therefore he could not have committed the alleged crime, however such incapacity/ailment was not backed by any evidence---Minor inconsistencies in the evidence of eye-witnesses, when compared with the F.I.R., which otherwise had no evidentiary value, would not dislodge the case of prosecution---Reasons for conviction of accused persons recorded by Trial Court in its judgment were based on proper appreciation of ocular as well as circumstantial evidence---High Court while recording acquittal of accused and co-accused persons, did not look into, discuss or assign any reason for its disagreement with findings of the Trial Court---Appeal was allowed in circumstances and conviction and sentences awarded to accused and co-accused persons in terms of the judgment of the Trial Court were restored. [Minority View].

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

----S. 154---F.I.R.---Evidentiary value and relevance---F.I.R. was not a substantive piece of evidence, but simply an information about the occurrence laid before the law enforcing agency to set the law into motion for the purpose of investigation---F.I.R. could not be given weight as substantive piece of evidence for the simple reason that its contents were neither recorded on oath nor it could be subjected to the test of cross-examination through some other prosecution witness, so as to be considered a substantive piece of evidence worth any credence---Narration of facts in the F.I.R. could not be made basis for getting contradictions in the prosecution case or discarding ocular testimony on such premise--- At best F.I.R. could be considered as a piece of document to which the complainant, when he appeared in the witness box, could be confronted with its contents. [Minority View]

Muhammadullah v. The State PLD 2001 Pesh. 132; Saeed Ahmad alias Saeed Akbar v. State 1985 SCMR 1455; Raza Mohsin Qazilbash v. Muhammad Usman Malik 1999 SCMR 1794; Gull Khan v. The State 2000 SCMR 400; Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539; Dharma Ram Bhagare v. State of Maharashtra AIR 1973 SC 476; Liaquat Ali v. State 1981 SCMR 1130 and Ghulam Abbas v. The State 1997 PCr.LJ 2091 ref.

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

----S. 417--- Appeal against acquittal--- Double presumption of innocence--- Scope--- Appellate Court acquitting accused after committing glaring misreading of evidence and recording its findings in a fanciful manner, contrary to the evidence brought on record---Effect---Presumption of double innocence would have no applicability in such a situation---When guilt of accused was proved from overwhelming ocular evidence of truthful witnesses, mere acquittal of accused by the Trial Court or the Appellate Court would not add any glory to his role, and in such circumstances, the presumption of double innocence would not apply---Illustration. [Minority View]

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261; Faizullah Khan v. State 1972 SCMR 672 and Yar Muhammad v. State 1992 SCMR 96 ref.

(j) Criminal trial---

----Benefit of doubt---Acquittal of some of the accused---Effect---'Falsus in uno, falsus in omnibus'---Scope---Mere acquittal of some of the accused statedly involved in the commission of crime by the Trial Court by extending benefit of doubt to them, would not demolish the case of the prosecution as a whole against the remaining accused, as the legal maxim "falsus in uno falsus in omnibus" would have no application in such circumstances---Illustration. [Minority View]

Sh. Khizar Hayat, Senior Advocate Supreme Court for Appellant.

Arif Kareem, Advocate Supreme Court for Respondents Nos.3 to 5.

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

Date of hearing: 19th September, 2013 (Judgment Reserved).

2014 S C M R 794

[Supreme Court of Pakistan]

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

SABIR HUSSAIN---Applicant/Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.744 of 2011 in Jail Petition No.111 of 2006, decided on 30th January, 2014.

(Against the judgment dated 21-2-2006 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.377 of 2003 and Murder Reference No.74 of 2003)

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

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Rule of consistency--- Case of accused identical to that of acquitted co-accused---Conviction based exclusively on motive---Legality---Case against acquitted co-accused was based only upon the motive set up by the prosecution and his alleged absconsion for a period of about 2 years---Supreme Court found that case against said co-accused was practically a case of no evidence, and thus he was acquitted of the charge---Case of present accused was even on a better footing on merits than that of acquitted co-accused, as the only evidence produced by prosecution against accused was in the shape of an alleged motive---Convictions and sentences of accused were set aside in circumstances and he was acquitted of the charge---Appeal was allowed accordingly.

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

----S. 302(b)--- Qatl-e-amd--- Conviction based exclusively upon motive---Legality---Accused person could not be convicted on a charge of murder exclusively on the basis of a motive alleged against him.

M. Zaman Bhatti, Advocate Supreme Court for Appellant/Petitioner.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 30th January, 2014.

2014 S C M R 796

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

SANDOZ PAK LTD.---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Civil Review Petition No.44 of 2006, decided on 23rd January, 2014.

(For review of the judgment dated 19-12-2005 passed by this Court in Civil Appeal No.863 of 2000)

Central Excises and Salt Act (I of 1944)---

----S. 3 & First Sched. Entry 04.03--- Constitution of Pakistan, Art.188---Review of Supreme Court judgment---Scope---Levy of excise duty on a chemical called "Leucophor"--- Petitioner-company manufactured a product/chemical called "Leucophor"---Customs and revenue authorities demanded excise duty from the petitioner-company in respect of the said product---Petitioner filed a constitutional petition before the High Court praying that "Leucophor" was not classifiable under Entry 04.03 of the First Schedule to the Central Excises and Salt Act, 1944; that demand of excise duty by customs and revenue authorities was an afterthought and such belated demand had been raised after the goods had been cleared and sold--- High Court allowed said constitutional petition, relying on one of its earlier judgments on the subject passed in Constitution Petition No. D-865 of 1992 and set aside orders of customs and revenue authorities---Customs and revenue authorities preferred an appeal before the Supreme Court, which appeal was allowed and order passed by High Court was set aside on the basis that chemical which was subject matter of Constitution Petition No. D-865 of 1992 was different than the chemical in the present case--- Petitioner-company filed present review petition seeking review of the judgment passed by the Supreme Court and contended that the Supreme Court while passing its judgment did not take into consideration some of the judgments passed by the High Court on the subject---Validity---Supreme Court passed its judgment (i.e. judgment under review) after hearing the parties at considerable length, taking into consideration the evidence available on record, and it also took note of the judgment of the High Court on the subject on which High Court had placed reliance i.e. Constitution Petition No. D-865 of 1992---Petitioner-company failed to point out any error floating on record in the judgment under review, which being just, did not call for any interference--- Review petition was dismissed accordingly with costs.

Constitution Petition No.D-865 of 1992 ref.

M. Siddique Mirza, Advocate Supreme Court for Petitioner.

M. Bilal, Senior Advocate Supreme Court for Respondent No.2.

Date of hearing: 23rd January, 2014.

2014 S C M R 799

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

S. MASOOD ABBAS RIZVI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others---Respondents

C.P.L.A. No.593-K of 2013, decided on 27th February, 2014.

(On appeal from Order dated 20-8-2013 of the Sindh High Court, passed in C.P. No.D-3112 of 2013)

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

----S. 10---Posting on deputation---Deputationist, right of---Scope---Deputationist repatriated to his parent department without assigning of any reasons--- Legality--- Deputationist did not have any vested right to remain on the post for ever or for a stipulated period---Deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason---Parent department of deputationist was not obliged in law, to assign any reasons for his repatriation.

Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 SCMR 378 ref.

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

----Ss. 2(b)(i) & 10---Posting on deputation---Deputationist, status of---Scope---Civil servant, definition of---Deputationist lost his status as a civil servant during the period he was on deputation.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 27th February, 2014.

2014 S C M R 801

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ejaz Afzal Khan, JJ

Mst. GOHAR KHANUM and others---Appellants

Versus

Mst. JAMILA JAN and others---Respondents

Civil Appeal No.825 of 2009, decided on 24th February, 2014.

(Against the judgment dated 9-5-2005 of the Peshawar High Court, Abbottabad Bench passed in C.R. No.62 of 2005)

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

----S. 3---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Islamic law---Inheritance---Inheritance share of sister excluded at the time of recording of mutation---Sister filing suit challenging said mutation after a lapse of fifty years--- Limitation---Through inheritance brother became owner of 2/3rd of the property, while sister became owner of the remaining 1/3rd property---Sister came to own 1/3rd of the property by operation of law and not by any mutation---Mutation was meant to record legal entitlement of brother and sister---If the mutation was erroneously made in favour of the brother (only), such mutation would not create title in favour of the brother in accordance with Sharia law of inheritance---Suit filed by sister was not time barred in circumstances.

(b) Islamic law---

----Inheritance--- Share, relinquishment of--- Burden of proof---Mutation relating to inherited property entered exclusively in name of brother at the exclusion of sister---Brother alleged that his sister was fully aware of such mutation and did not challenge it for fifty years, and that he had also constructed a house on the disputed property---Validity---In order to relinquish or transfer interest in property, there had to be a positive and affirmative act---No document or deed of relinquishment, sale, transfer or gift was brought on record to establish that sister had either relinquished her interest in the disputed property or had actually conveyed or transferred the same in favour of her brother---In the absence of any such affirmative act on part of sister, it could not be said that the property came to vest entirely in the brother---Onus fell squarely on the brother to establish that interest of sister had been transferred in his favour or that sister had relinquished her rights in the disputed property---Brother failed to discharge such onus.

(c) Islamic law---

----Inheritance---Co-ownership---Scope---Mutation relating to inherited property entered exclusively in name of brother at the exclusion of sister--- Sister as co-owner of such property--- Scope---Sister was co-owner of such property and (exclusive) possession/occupation of property by her brother as the other co-owner could only be construed as possession on behalf of all co-owners including the sister in question---Illustration.

(d) Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S. 4---Trusts Act (II of 1882), Ss. 82, 89, 90 & 94---Co-owners of occupancy tenancy---Compensation paid by one co-owner only to secure ownership rights---Effect---Deceased owned suit property as occupancy tenant---Deceased passed away leaving behind a son and a daughter---Son (co-owner in suit property) made payment to secure proprietary rights in suit property, and consequently mutation relating to suit property was entered exclusively in name of son at the exclusion of daughter---Legality---Payment of amount by the son could at best be treated as an act of one co-owner to secure proprietary rights in the disputed property---Act of making payment by son was for the purpose of securing the ownership rights in the suit property---Payment by son in such circumstances must be seen as a payment made on behalf of the co-owner/daughter as trustee by virtue of Ss. 82, 89, 90 & 94 of Trusts Act, 1882.

Mushtaq Ali Tahirkheli, Advocate Supreme Court for Appellants.

Gulzarin Kiyani, Advocate Supreme Court for Respondents.

Date of hearing: 24th February, 2014.

2014 S C M R 806

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

PAKISTAN through Secretary, Ministry of Communication and Works and others---Appellants

Versus

Syed MUHAMMAD ISMAIL SHAH and others---Respondents

Civil Appeal No.38-K of 2010, decided on 17th May, 2013.

(On appeal from judgment of High Court of Sindh, Sukkur Bench, dated 20-7-2009, passed in C.R.A. No.75 of 2006)

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 11 & 23---Specific Relief Act (I of 1877), Ss. 42 & 54---Acquisition of land---Compensation award, non-payment of---Effect---Plaintiffs filing suit for declaration, compensation and permanent injunction---Propriety---Commercial land owned by plaintiff was utilized by the Government/appellant for construction of a road after issuing notices under Ss. 4 & 6 of Land Acquisition Act, 1894, but thereafter neither any land acquisition officer was appointed nor any lawful award for compensation was ever paid---Concerned quarters acted irresponsibly in the matter of determining and making payment of compensation to the plaintiffs, which served no other purpose but to complicate the issue and open a new venue for litigation---Plaintiffs in such circumstances were justified in filing a suit for compensation and damages against the Government for the loss suffered by them due to their unlawful act of utilization of an area owned by plaintiffs---Disputed land was commercial land containing petrol pump and trees etc.---Utilization/acquisition of plaintiffs' land by the Government was proved from the record and compensation in such regard awarded by courts below was also appropriate---Appeal was dismissed in circumstances.

Nadeem Azhar Siddiqui, Advocate Supreme Court for Appellants.

Rasheed A. Rizvi, Senior Advocate Supreme Court and M. Saleem Mangrio, Advocate Supreme Court for Respondents Nos.1 and 2.

Ex parte for Respondent No.7.

Zameer Ahmed Jakhrani, A.C. Gambat, Dr. Shezah, A.C. Sobodero and Muhammad Nawaz Karwar, Service Supdt. on Court's Notice.

Date of hearing: 17th May, 2013.

2014 S C M R 812

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, HCJ., Amir Hani Muslim and Ejaz Afzal Khan, JJ

Messrs OIL AND GAS DEVELOPMENT COMPANY LTD., ISLAMABAD through Chief Executive Officer/MD and another---Appellants

Versus

MUHAMMAD AZHAR CHUGHTAI---Respondent

Civil Appeal No.800 of 2013 and C.M.A. No.4996 of 2013, decided on 18th December, 2013.

(On appeal from the judgment dated 10-6-2013 passed by the Islamabad High Court, Islamabad in Intra Court Appeal No. 612 of 2013)

Oil and Gas Development Company Limited Employees Service Rules, 2002---

----R. 2(k)---Group (EG-VII) Employee of Oil and Gas Development Company (OGDCL)---Termination of service of such employee by Managing Director, OGDCL--- Legality--- Plea of OGDCL that appointment order of employee in question contained a clause which authorized either the Board of OGDCL or its assignee to terminate appointment by giving an advance notice; and that such assignment was duly made in favour of Managing Director, OGDCL, who could pass termination order---Plea of employee that he was not a contract employee within the meaning of R. 2(k) of Oil and Gas Development Company Limited Employees Service Rules, 2002; that Board of OGDCL did assign its power to Managing Director for terminating appointments, but such delegation/assignment was for contract employees only, therefore his services could not have been terminated by the assignee/Managing Director, OGDCL---Validity---Terms and conditions mentioned in appointment order of employee in question stated that his services could be terminated by OGDCL or its assignee in its discretion---Board of OGDCL had authorized the Managing Director to terminate "contracts of employment" of officers up to the level of Managers (EG-VII)---Admittedly employee in question was a Group (EG-VII) employee but his appointment was not a contract employment---Delegation of power to terminate services by Board of OGDCL to its Managing Director, therefore, would not apply to the present employee--- High Court had rightly set aside termination order of employee---Appeal was dismissed by Supreme Court accordingly.

Azid Nafees, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellants.

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

Date of hearing: 18th December, 2013.

2014 S C M R 817

[Supreme Court of Pakistan]

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

ORYA MAQBOOL ABBASI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others---Respondents

Constitutional Petition No.22 of 2013, decided on 3rd October, 2013.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 7-A & 8---Revised Promotion Policy, 2007---Promotion---Selection post---Supreme Court observed that it would be great achievement, if it is added in the Policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including lifestyle, expenses on children education, expenses on children marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation.

Policy of promotion (revised in 2007) enjoys the force of law, therefore, has to be adhered to strictly.

The Central Selection Board, being semi judicial forum, has been authorised to examine the cases of the officers justly and fairly.

The competent authority i.e., Government as well as CSB has to adhere strictly to the law and the rules as well as the instructions on the subject. If any action is taken against any of the officers denying his case for promotion, such action would be unlawful and would have no leg to stand. Two clauses i.e. (e) and (f) of Item-5 of Promotion Policy are very important, and while examining clauses (e), (f) and (h) relating to quality and output of work, variety of experience and top management potential, stringent provisions have to be incorporated to make such Promotion Policy to provide objective criteria for promotion.

It would be great achievement, if it is added in the Policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including lifestyle, expenses on children education, expenses on children marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation as it has been observed in his speech by the Quaid-e-Azam.

Watan Party v. Chief Executive of Pakistan PLD 2003 SC 74; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; Dr. Mir Alam Jan v. Dr. Muhammad Shehzad 2008 SCMR 960; Saleem Ullah Khan v. Shahid Hamid 2011 SCMR 788; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280 and Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways PLD 2013 Lah. 413; Fazali Rehmani v. Chief Minister N.-W.F.P. PLD 2008 SC 769; Government of Punjab through Secretary Health Department v. Dr. Aman-ul-Haq 2000 SCMR 1805; Babar Hussain Shah v. Mujeeb Ahmed Khan 2012 SCMR 1235; President Balochistan High Court Bar Association v. Federation of Pakistan 2012 SCMR 1958; Federation of Pakistan through Secretary Establishment v. Liaqat Ali and Tauqir Ahmad Faiq Civil Petitions Nos. 836 and 837 of 2006; Tariq Aziz-ud-Din's case 2010 SCMR 1301 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 rel.

(b) Civil Servants Act (LXX of 1973)---

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 7-A & 8---Central Selection Board, duty of---Scope---Central Selection Board being a semi judicial forum would have to examine cases of officers justly and fairly.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction under Art. 184(3) of the Constitution---Scope---Illegal and arbitrary decision would militate against rule of law---Court in exercise of its power of judicial review could interfere in such decision---Principles.

Federation of Pakistan through Secretary Establishment v. Liaqat Ali and Tauqir Ahmad Faiq Civil Petitions Nos.836 and 837 of 2006 rel.

(d) Civil service---

----Role of civil servants in management of Government---Importance stated.

Officers relating to the management in Government of Pakistan, notwithstanding whether they belong to Pakistan Administrative Service or Secretariat Group or any other group, fact remains that individuals of such cadre play a decisive role in shaping the destiny of the nation. Reference in this behalf to highlight their importance can conveniently be made to the speech of Quaid-i-Azam Muhammad Ali Jinnah delivered in April, 1948, to the civil officers in Peshawar.

Petitioner in person.

Arshad Ali Chaudhry, Advocate-on-Record for Applicant (in C.M.A. No.2903 of 2013).

Shah Khawar, Additional AGP, Raja Abdul Ghafoor, Advocate-on-Record, Malik Shakeel, J.S. (Litigation) and Shahbaz Karmani, S.O. for Estt. Div. & CSB.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.19, 61 and 81.

Rashid A. Rizvi, Senior Advocate Supreme Court for Respondent No.82.

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents Nos. 23, 47, 49, 53, 57 and 74 to 76.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos.28, 43, 52 to 54 and 58.

Saqib Aleem, Additional Secretary, Wafaqi Mohtasib, Capt. Retd. Muhammad Aftab, J.S. (Cabinet) and M. Shabbir Ahmed, Additional Secretary, MOI, Respondents (in person).

Date of hearing: 12th July, 2013.

2014 S C M R 849

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Ejaz Afzal Khan, JJ

GHULAM ABBAS---Petitioner

Versus

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

C.P.L.A. No.453 of 2013, decided on 31st July, 2013.

(On appeal from the judgment dated 18-1-2013, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No.1595 of 2005)

Pakistan Army Act (XXXIX of 1952)---

----Ss. 55 & 84(a)---Penal Code (XLV of 1860), S. 377---Constitution of Pakistan, Arts. 185(3) & 199(3)---Unnatural offence---Field General Court Martial---High Court, interference of---Accused was an army personal who was convicted and sentenced by Field General Court Martial for committing sodomy---High Court declined to interfere in conviction awarded to accused by Field General Court Martial---Validity---Any action or order of any authority relating to Armed Forces of Pakistan, which was either corum non judice, mala fide, or without jurisdiction, the same could be challenged before High Court and bar contained under Art. 199(3) of the Constitution would cease to operate---Neither order passed by Field General Court Martial was a case of no evidence or that evidence led by prosecution was insufficient to convict accused---Victim had himself described forced sexual encounter of accused, when he committed unnatural offence and the same was corroborated by medical evidence on record---Supreme Court declined to interfere in the judgment passed by High Court---Petition was dismissed in circumstances.

Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 ref.

Brig. (R) F.B. Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sardar Farooq Ahmed Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and Mushtaq Ahmed v. Secretary Ministry of Defence PLD 2007 SC 405 rel.

Col. (R) Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st July, 2013.

2014 S C M R 852

[Supreme Court of Pakistan]

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

DAUD SHAH---Appellant

Versus

WARIS SHAH and others---Respondents

Civil Appeal No.948 of 2010, decided on 11th February, 2014.

(On appeal against the judgment dated 21-6-2010 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.203 of 2004)

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

----S. 13---Suit for pre-emption---Date of issuance of notice of Talb-i-Ishhad not mentioned in the plaint---Copies of notices of Talb-i-Ishhad along with postal and acknowledgment receipts annexed with the plaint---Effect---Omission to mention date notice of Talb-i-Ishhad in the plaint would stand cured by annexing the copies of notices of Talb-i-Ishhad along with postal/acknowledgement receipts---Material facts given in the notices of Talb-i-Ishhad formed part of the plaint---Appeal was allowed accordingly.

Munawar Hussain v. Afaq Ahmed 2013 SCMR 721; Allah Ditta v. Muhammad Anar 2013 SCMR 866 and Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 distinguished.

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

----S. 25---Decree passed in suit for pre-emption---Direction to pre-emptor to pay excess price---Nature---Provisions of S. 25 of Punjab Pre-emption Act, 1991 were directory in nature and did not entail any penalty.

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

----S. 13---Suit for pre-emption---Contradiction between statements of pre-emptor and his witness---Material contradictions---Scope---Pre-emptor in his deposition stated that he was sitting with his family members in the court yard of his house when he was informed about the alleged sale of suit property by his witness, whereas said witness in his deposition stated that he informed the pre-emptor about the alleged sale when he was sitting alone in his room---Held, such contradiction could not be termed as a material contradiction, which could have a bearing on the issue of making of Talbs---Factum of intimating the pre-emptor by the witness was not in dispute in regard to date, place and time---Appeal was allowed accordingly.

Gulzarin Kiani, Senior Advocate Supreme Court for Appellant.

Muhammad Munir Piracha, Advocate Supreme Court for Respondents.

Date of hearing: 11th February, 2014.

2014 S C M R 856

[Supreme Court of Pakistan]

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

Messrs UNITED BANK LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No.1010 of 2010, decided on 24th April, 2013.

(On appeal from the judgment dated 22-3-2010 of the Lahore High Court, Lahore passed in W.P. No.21020 of 2009)

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

----S. 2---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9(1)---General Clauses Act (X of 1897), S. 24A---Constitution of Pakistan, Art.185(3)---Placing name of Director of a company on Exit Control List during pendency of recovery suit against company before the Banking Court---Scope---Respondent was Director of a private company against which an alleged default in repayment of loan had been claimed by the Bank by filing a recovery suit---Recovery suit was pending adjudication, when Bank in question requested State Bank of Pakistan for placing name of Director on the Exit Control List---State Bank of Pakistan forwarded the matter to the Ministry of Interior, which vide a memorandum placed name of Director on the Exit Control List---Director filed constitutional petition before the High Court which was allowed and it was held that placing name of Director on Exit Control List was without lawful authority---Validity---No appropriate order had been passed by the Banking Court regarding liability of Director and the matter was still pending so much so that leave to defend application filed by Director had not been disposed of---Bank at the time of loan agreement in question, had safeguarded the loan by acquiring necessary securities and by mortgaging property of private company and its Directors---No explanation was given by the bank as to how its position would be compromised by absence of Director if he escaped away---Ministry of Interior placed name of Director on Exit Control List in a mechanical manner without applying its mind and without giving any reason for such decision---Order passed by Ministry of Interior was a bald order hit by S. 24A of General Clauses Act, 1897 and could not be sustained---High Court had rightly held that if Bank wanted an interim order, it should have approached the Banking Court, where the recovery suit was pending as said court could pass any appropriate order---Order passed by High Court was unexceptionable and did not warrant any interference---Petition for leave to appeal was dismissed in circumstances and leave was refused.

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

----S. 2---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9(1)---Constitution of Pakistan, Art. 15---Placing name of Director of a company on Exit Control List during pendency of recovery suit against company before the Banking Court---Validity---When claim by a commercial Bank against Director of a company was yet to be adjudicated, such claim could not be a ground to place the name of Director on the Exit Control List to deprive him from his fundamental right of travel abroad or restrict his right of free movement---Illustration.

Asim Mansoor Khan, Advocate Supreme Court for Petitioner.

M. Aleem Abbasi, D.A.-G. for Respondent No.1.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2.

Shahid Ikram Siddiqui, Advocate Supreme Court for Respondent No.3.

Date of hearing: 24th April, 2013.

2014 S C M R 860

[Supreme Court of Pakistan]

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

MUNAWAR IQBAL GONDAL---Petitioner

Versus

Mrs. NASIRA IQBAL and others---Respondents

Civil Petition No.606-L of 2010, decided on 15th May, 2013.

(On appeal from the judgment dated 15-1-2010 passed by the Lahore High Court, Lahore in W.P. No.14213 of 2009)

Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---Scope---"No live substantive issue remaining to be decided"---Effect---Supreme Court would not deal with academic issues in a petition for leave to appeal when no live issue remained to be decided---Subject matter of present petition was dispute over election to the office of President, Lahore High Court Bar Association held in the year 2009---Term of office of the President, Lahore High Court Bar Association elected in terms of election held on 11-7-2009 expired in February 2010, and thereafter periodical election of the said office had been held---Substantive issue, therefore, was no more alive---Petition for leave to appeal was disposed of by the Supreme Court accordingly with the observation that it would be open to the parties to re-agitate the substantive issue of the present petition in any future eventuality with reference to a live matter.

Sarfraz Khan Gondal, Advocate Supreme Court along with Petitioner.

Ahmed Awais, Advocate Supreme Court for Respondent No.1.

Date of hearing: 15th May, 2013.

2014 S C M R 862

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

MAULA JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.173 and 174 of 2012, decided on 21st October, 2013.

(On appeal from the judgment dated 1-12-2011 in Criminal As. Nos.25 and 38 of 2011 passed by the Peshawar High Court, Peshawar)

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

----S. 9(c)---Possession and transportation of narcotics---Reappraisal of evidence---Benefit of doubt---Charas gardah and charas pukhta---Accused was apprehended by police on basis of secret information and allegedly 10 packets of charas gardah were recovered from secret cavities of vehicle being driven by accused---Trial Court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to 10 years' imprisonment with fine of Rs. 50,000---Case property i.e. vehicle wherein narcotics were allegedly hidden was also confiscated to the State--- High Court reduced sentence of accused to 7 years' imprisonment, but maintained conviction---Validity---Accused along with case property was sent to police station before arrival of investigating officer at the spot---Packets containing narcotics opened at the time of cross-examination of witnesses were found to be of different sizes, whereas case of prosecution was that all packets were of the same size---Marginal witness of recovery memo during his cross-examination stated that it was not specifically mentioned that accused was present at the time of recovery; or that case property was sealed with five monograms; or that recovery memo was prepared at police post---Police official/witness who conducted the raid admitted in his cross-examination that in the site plan presence of accused in vehicle was not mentioned; that there was difference between charas gardah and charas pukhta; that parcels of case property were sent with three seals and not five seals; that report of chemical examiner stated that charas was brownish solid in colour, whereas packets opened in court contained charas which was not brownish solid in colour---Prosecution did not prove its case beyond any shadow of doubt---Accused was acquitted in circumstances and order of confiscation of his motor car was also set aside---Appeal was allowed accordingly.

Noor Alam Khan, Advocate Supreme Court for Appellant (in both cases).

Muhammad Siddique Khan Baloch, Advocate Supreme Court for the State (on behalf of AG Khyber Pakhtunkhwa).

Date of hearing: 21st October, 2013.

2014 S C M R 866

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Gulzar Ahmed and Iqbal Hameed-ur-Rahman, JJ

HAKIM ALI---Petitioner

Versus

MUHAMMAD HANIF and others---Respondents

Criminal Original Petition No.67 of 2009, decided on 25th November, 2013.

(Contempt Application under sections 2 and 3 of the Contempt of Court Ordinance, 2003)

(a) Counsel and client---

----No rule prevented a counsel from appearing on behalf of a party in a case in which he (counsel) had at some earlier stage (of the proceedings) passed an order as a Judge.

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

----Ss. 2 & 3---Contempt of court, petition for---Pre-requisites---Violation of court order---Person aggrieved of violation of an order of the court had to show that the same had been violated before any action for contempt of court was initiated against the alleged delinquents---When there was no evidence to show that alleged delinquents had violated any court order, it was not possible to hold that they had committed any contempt of court.

Facto Belarus Tractor Limited v. Government of Pakistan PLD 2005 SC 605 ref.

Petitioner in person.

Rasheed A. Rizvi, Senior Advocate Supreme Court along with Muhammad Hanif Respondent No.1.

Mansoor-ul-Arfin, Advocate Supreme Court along with Muhammad Farooq and Saqib Ali Respondents Nos.2 and 3.

Respondent No.5 in person.

Sohail Mahmood, D.A.-G. for Federation.

Mrs. Akhter Rehana, Additional P.-G. for the Government of Sindh.

Date of hearing: 25th November, 2013.

2014 S C M R 873

[Supreme Court of Pakistan]

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

ABDUL RAHEEM ZIARATWAL and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.115 of 2011, decided on 5th December, 2013.

Constitution of Pakistan---

----Arts. 3, 9, 169, 170, 171 & 184(3)---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 regarding misappropriation of development funds and corrupt practices committed in development schemes/projects in the province of Balochistan---Misappropriation of public money---Corruption and corrupt practices---Development funds used in a non-transparent manner---Lack of audit of development funds---Lack of basic amenities of life in Balochistan province---Right to life, infringement of---Exploitation of people---Scope---Inspection/inquiry Committee formed on directions of the Supreme Court undertook inspection of 55 projects/schemes (25% of the total development schemes) situated in various parts of Balochistan province and submitted its report before the court---Findings of the Inquiry Committee showed that progress of development projects was unsatisfactory---Development activities were being carried out at a very slow pace despite availability of considerable funds---No visible development proportionate to the funds had taken place in the province of Balochistan; particularly, in reference to enforcement of Fundamental Rights of the general public by providing them basic amenities of life, including education, health cover, infrastructure, etc.---Major portion of the population was not getting clean drinking water---Public money had been wasted due to corruption and corrupt practices during the period between 2003 to 2008---No action had been initiated against any of the delinquent persons responsible for the commission and omission of illegalities, irregularities as well as criminal negligence---Provincial Government allocated an amount of Rs.30 million per year for each Member of Provincial Assembly, which was to be spent strictly in accordance with the guidelines for Project Management issued by the Provincial Planning and Development Department, however, as per material available on record, such amount was spent by the departments in a non-transparent and illegal manner---Concerned authorities entrusted funds of Public Sector Development Program (PSDP) or those arising out of the fund/budget allocated to Members of Provincial Assembly to departments or executing agencies of their choice without any justification---All the political parties in the province and individual Members, except for one or two, had joined the treasury benches of the Provincial Assembly, so there was no effective opposition---Consequently, there was no Provincial Public Accounts Committee, primarily responsible to undertake scrutiny of the public funds being spent by the Government from time to time on development schemes---Functionaries of province of Balochistan, prima facie, were responsible for spending huge funds contrary to the guidelines issued by the Provincial Planning and Development Department, thus they were accountable, as the money which was spent had clearly not proved beneficial to the inhabitants of far flung areas of Balochistan---Citizens of the province of Balochistan were being deprived of the fundamental right to life as envisaged under Art. 9 of the Constitution---Present situation also ran contrary to Art.3 of the Constitution, which provided that the State shall ensure the elimination of all forms of exploitation---Supreme Court directed that as no Public Accounts Committee was constituted to have oversight, particularly on development schemes, both approved and unapproved, therfore, the provisions of Arts 169, 170 & 171 of the Constitution read with Ss.8 & 12 of the Auditor-General's (Functions, Powers and Terms and Conditions of Service) Ordinance, 2001, (which pertained to the functioning and powers of the Auditor General) had to be strictly invoked; that the Provincial Chief Minister and Cabinet had the first and foremost duty to ensure that funds were used to promote the welfare of citizens strictly in accordance with the Constitution and law; that it was incumbent upon the Executive/Government to examine/evaluate the remaining 75% development schemes (i.e. those schemes not inspected by the Committee formed on directions of the Supreme Court), and ensure forensic audit of the same, and if it was found that such schemes/projects meant for community development were used by officials/officers/representatives to misappropriate public money by indulging into corruption and corrupt practices, then the Government must proceed against them in accordance with law so that it might serve as a deterrent for future purposes---Constitutional petition was disposed of accordingly.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record, assisted by Barrister M. Saad Buttar, Advocate for Petitioners.

Nemo for Respondents Nos. 1 to 4.

Kh. Haris Ahmed, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos.5 and 6.

Shakeel Ahmed Baloch, A.-G. Balochistan for Respondents Nos.7 and 8.

Dates of hearing: 16th to 18th and 22nd July, 2013.

2014 S C M R 907

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Muhammad Ather Saeed and Mushir Alam, JJ

Messrs F.M.Y. INDUSTRIES LTD.---Petitioner

Versus

DEPUTY COMMISSIONER INCOME TAX and another---Respondents

Civil Petition No.332-K of 2013, decided on 27th February, 2014.

(Against the order dated 3-5-2013 of the High Court of Sindh, Karachi passed in I.T.A. No.161 of 1998)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 136 & 137---Reference to High Court against judgment of Income Tax Appellate Tribunal---Appeal to Supreme Court---Questions of fact---High Court and Supreme Court cannot entertain any question on a finding of fact given by the Income Tax (Appellate) Tribunal.

(b) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 136---Reference to High Court against judgment of Income Tax Appellate Tribunal---Scope---Questions of law---High Court only had to give opinion on questions of law raised before it---Only those questions could be raised before the High Court which were questions of law and arose from the order of the (Appellate) Tribunal---Questions of law included questions argued before the Tribunal on which finding had either been given or not given by the Tribunal, and also those questions which were never argued but had been adjudicated upon by the Tribunal.

Commissioner of Income Tax, Companies-III, Karachi v. Krudd Sons Ltd. 1994 SCMR 229 = 1994 PTD 174 ref.

(c) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 136 & 137---Reference to High Court against judgment of Income Tax Appellate Tribunal---Scope---Appeal to Supreme Court---Scope---Questions of law neither agitated before the Appellate Tribunal nor adjudicated upon by the Tribunal---Such questions could not be raised before the High Court or Supreme Court.

Iram Ghee Mills (Pvt.) Ltd., Lahore v. Income Tax Appellate Tribunal, Lahore 1998 PTD 3835 ref.

Syed Shahanshah Hussain, Advocate Supreme Court for Petitioner.

Muhammad Saleem Mangrio, Advocate Supreme Court for Respondents.

Date of hearing: 27th February, 2014.

2014 S C M R 914

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

MUHAMMAD NAWAZ alias NAWAZA and others---Appellants

Versus

MEMBER JUDICIAL BOARD OF REVENUE and others---Respondents

C.A. No.1209 of 2007, decided on 6th February, 2014.

(On appeal from the judgment dated 15-3-2007 passed by the Lahore High Court, Lahore in W.P. No.4803 of 1986)

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

----S. 42---Khasra Girdawari---Entries in Khasra Girdawari relate to state of affairs at the date (of preparation of girdawari) and not to time of sowing of crop.

Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC 309 and Khadim Hussain and others v. Muhammad Nawaz Khan 1981 SCMR 1183 ref.

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

----S. 42---Entry in Revenue record---Unlawful alteration---Where entries in the revenue record had not been substituted lawfully, the original would hold the field.

Allah Dad v. Muhammad Ali PLD 1956 Lah. 245 and Azam Khan v. Azad Khan and 6 others PLD 1986 Lah. 275 ref.

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

----O. VI, R.1---Pleadings---Evidence---Scope---Averments made in pleadings do not constitute evidence but the evidence led in their support must be consistent therewith---Anything stated outside the scope of such averments could not be looked into.

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

----O. VI, Rr. 1 & 7---Pleadings---Scope---Secundum allegata et probata, rule of---Scope---Rule of secundum allegata et probata precluded a party from proving what had not been alleged or pleaded---No party could be allowed to lead evidence on a fact which had not been specifically pleaded nor could any evidence be looked into which was outside the scope of the pleadings.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwal 1968 SCMR 804; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 ref.

(e) Constitution of Pakistan---

----Art. 199---West Pakistan Land Revenue Act (XVII of 1967), Preamble---Constitutional petition before High Court---Interference in concurrent findings of fact recorded by fora functioning in the revenue hierarchy---Scope---Any finding did not become sacrosanct (only) because it was concurrent---Finding became sacrosanct only if it was based on proper appraisal of evidence---Where findings of fora functioning in the revenue hierarchy were concurrent but not based on proper appraisal of evidence and due application of law, the High Court was well within its jurisdiction to interfere therewith and could quash (such findings) in exercise of its constitutional jurisdiction. [p. 920] F

Lord Denning on "the Discipline of law" and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

(f) Administration of justice---

----Courts of law were not supposed to perpetuate what was unjust and unfair by exploring an explanation therefor---Courts should rather explore ways and means for undoing what was unjust and unfair.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Appellants.

Ch. Khurshid Ahmed, Senior Advocate Supreme Court for Respondents Nos.3 - 13 and 15.

Ex parte: Respondents Nos.1, 2, 14 and legal heirs.

Date of hearing: 6th February, 2014.

2014 S C M R 922

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Gulzar Ahmed and Iqbal Hameedur Rahman, JJ

Messrs ESSA ENGINEERING COMPANY PVT. LTD. and another---Appellants

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and another---Respondents

Civil Appeals Nos.371 and 717 of 2005, decided on 22nd January, 2014.

(On appeal against the Judgment dated 16-3-2005 passed by the Lahore High Court, Lahore, in R.F.A. No.335 of 2000)

(a) Sale of Goods Act (III of 1930)---

----S. 59---Remedy for breach of warranty---Scope---Section 59 of Sale of Goods Act, 1930 provided for a situation where in a contract of warranty between seller and the buyer, the seller made a breach of such warranty, then the buyer was not only entitled to reject the goods but was also entitled to set up against the seller the breach of warranty in diminution or extinction of the price or sue the seller for damages for breach of warranty---Situation of setting up against the seller the breach of warranty in diminution or extinction of price, arose where the seller brought a suit against the buyer either for damages or for price of the goods---Buyer at such stage was entitled to set up a claim against the seller i.e. breach of warranty and as a consequence ask for diminution or extinction of price.

(b) Sale of Goods Act (III of 1930)---

----S. 59---Remedy for breach of warranty---Contract for supply of items---Items found to be substandard---Buyer refusing to take delivery and invoking warranty clause---Supplier agreeing to replace items---Applicability of S. 59 of Sale of Goods Act, 1930---Buyer setting up against the supplier the breach of warranty in diminution or extinction of the price---Scope---As per contract plaintiff-supplier supplied 3100 tubes to the defendant-company (buyer)---Initially 106 tubes were found to be defective and plaintiff did not raise any dispute regarding it---Further defendant-company rejected another lot of 1359 tubes as substandard upon which a warranty clause of the contract was invoked by the defendant-company---Plaintiff did not contest or object to the invoking of warranty clause by the defendant-company but agreed to replace 1359 substandard tubes and in doing so went on to prepare 1400 tubes as a replacement and informed the defendant-company to inspect the 1400 tubes---Such facts were admitted and also pleaded by the plaintiff in its plaint, therefore apparently there did not arise an occasion for the defendant-company to set up against the supplier for breach of warranty either a claim of diminution or extinction of price---By making 1400 tubes as replacement on account of invocation of warranty clause by the defendant-company, the plaintiff accepted the fact that it was not entitled to the price of 1359 tubes which stood rejected by the defendant-company as substandard---Plaintiff itself gave in to the breach of warranty and agreed to replace 1359 tubes and in doing so admitted that it was not entitled to claim the price of 1359 tubes and thus, there was hardly any reason or justification with the defendant-company to set up claim against the plaintiff in the plaintiff's suit as provided in S. 59 of Sale of Goods Act, 1930---Facts of present case were quite different from the remedy postulated in S. 59 of the said Act---Illustration.

Commissioner of Sales Tax v. Prem Nath Motors (P) Ltd. ILR 1978 Delhi 273; G.N. Behera v. Messrs Nanagran Bhikamchand Rice Mills Firm and another AIR 1966 Assam and Nagaland 95; Syed Niamat Ali and another v. Dewan Jairam Dass and another PLD 1983 SC 5 and Maple Flock Company Limited v. Universal Furniture Products (Wembley) Limited The Law Times Volume 150, p.69 distinguished.

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

----O. VI, Rr. 2 & 4 & O. VII, R. 1---Sale of Goods Act (III of 1930), S.44--- Pleadings--- Scope--- Claim to be contained in the plaint---Scope---Contract between plaintiff-supplier and defendant-company for supply of tubes---Plaintiff initially supplied 3100 tubes to the defendant and on inspection some of the tubes were found to be defective and substandard---Defendant invoked the warranty clause in the conditions of contract for replacement of the substandard tubes---Plaintiff agreed for the replacement and in that connection prepared 1400 and 1260 replacement tubes respectively and requested defendant to inspect them---Defendant refused to take delivery of replacement tubes and did not make payment for them---Plaintiff filed a suit against defendant which was decreed by Trial Court for the amount of 1400 and 1260 replacement tubes prepared by the plaintiff---High Court found that there was no claim in the plaint in respect of 1260 replacement tubes, therefore decree of Trial Court in respect of said 1260 tubes was not sustainable---Plea of plaintiff that the claim of 1260 tubes was very much contained in the plaint---Validity---Plaintiff in a paragraph of its plaint had specifically claimed that it had prepared 1260 tubes for supplying them to the defendant and in such regard it also referred to the inspection call made by it to the defendant---Defendant in its reply to said paragraph of the plaint had made a general denial without specifically denying the plaintiff's letter in which details in respect of inspection calls were very much mentioned which included the inspection call of 1260 tubes---Letter from a director of defendant-company addressed to one of its engineers was also available on record, wherein it was specifically mentioned that the plaintiff had offered a quantity of 1400 and 1260 replacement tubes respectively for inspection/testing, but the testing had not so far been conducted and a request was made that the testing be conducted---On the basis of pleadings and the documentary evidence available on record, it was abundantly clear that the plaintiff did in fact prepare 1260 replacement tubes for supplying to the defendant and had also requested them to be inspected by a representative of the defendant---Defendant did not inspect them nor took delivery of the 1260 tubes---High Court had discarded claim of the plaintiff in respect of 1260 tubes on mere, assertion that such claim of the plaintiff was not contained in the plaint---No justification or basis existed to deny claim of the plaintiff with respect to the 1260 tubes---Supreme Court decreed claim of plaintiff for the additional price of 1260 tubes with interest @ 16% per annum---Appeal was disposed of accordingly.

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

----O. VI, Rr. 2 & 4, O. VII, R. 1 & O. XIV, R. 1---Sale of Goods Act (III of 1930), S.44---Scope---Claim/relief sought not specifically contained in the plaint---Claim/relief based on a plea on which no issue framed---Effect---Contract for supply of items---Items found to be substandard---Defendant-buyer refusing to take delivery---Plaintiff-supplier agreeing to replace items and incurring costs in the process---Defendant-buyer refusing to take delivery of replacement items and not paying for them---Plaintiff instituted suit against defendant, which was decreed and plaintiff was also awarded costs of acquiring machinery and raw material for making replacement items despite not mentioning such claim in the plaint---Validity---Plaint of plaintiff did not mention the facts that it had acquired machinery or raw material and as to what treatment the plaintiff had given to such two items after the contract was revoked---Perusal of claims made in the plaint and the issues framed on the pleadings of parties clearly demonstrated that the plaintiff did not at all make any claim in the suit with regard to the raw material and machinery nor any issue on such plea was struck in the suit---Subject matter of machinery and raw material was never an issue nor it could be said that it was the ground which both parties understood to be in issue in the case---Claim of plaintiff towards raw material and machinery was wrongly allowed and was set aside accordingly---Appeal was disposed of accordingly.

Bhagwati Prasad v. Chandramaul AIR 1966 SC 735 distinguished.

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

----O. VI, R. 2 & O. XIV, R. 1---Pleadings, significance of---Framing of issues---Scope---Pleadings of the parties were the benchmark of their respective claims on which issues were drawn and evidence was led---Evidence was restricted to the issues struck between the parties alone and not beyond them---When any evidence beyond the purview of issues did come on record, no party could on basis of such evidence set up altogether a new case and press the same for getting relief merely on basis of an out of context evidence.

(f) Sale of Goods Act (III of 1930)---

----S. 55---Suit for price---Contract for supply of items---Items found to be substandard---Plaintiff-supplier agreeing to replace items and preparing replacement items---Defendant-buyer refusing to take delivery of replacement items and not paying for them---Replacement items having no market except for defendant---Remedy---Scope---Items/tubes prepared by the plaintiff had no other market except that of the defendant and the plaintiff was in no position to sell said tubes as it has no buyer in the market---Plaintiff could not make any salvage out of the tubes, more so for the reason that the tubes had been affixed with the monogram of the defendant-company---Plaintiff could not fetch any other market for the tubes as they could only be used by the defendant thus their resale value could not be ascertained---In such a situation, where the tubes were lying with the plaintiff and their price as per the contract had not been paid, the provision of S. 55 of the Sale of Goods Act, 1930 would be applicable---Plaintiff had given notice to the defendant to inspect the replacement tubes but neither such tubes were inspected nor their delivery was taken by the defendant and such act of the defendant was a unilateral one without finding any fault in the said replacement tubes---Plaintiff was required to make supplies of tubes within a specified period and after it had supplied the tubes to the satisfaction of the defendant, the payment was to be made---Burden was on the defendant to satisfy as to why the tubes were not inspected by it and their delivery not taken---No explanation was provided by the defendant for non-inspection and non-taking of delivery of the replacement tubes except that there was an enquiry pending in the matter---Supreme Court ordered that plaintiff was entitled to the price of all the replacement tubes with interest that defendant had the option to take delivery from the plaintiff of the replacement tubes in whatever shape they were in now, and that the plaintiff was also free to lift from the store of the defendant the rejected tubes---Appeal was disposed of accordingly.

(g) Sale of Goods Act (III of 1930)---

----S. 55---Suit for price---Scope---Under the provision of S. 55 of the Sale of Goods Act, 1930, where the property in goods had passed to the buyer or where the property in goods had not passed to the buyer but the price was payable on a day certain irrespective of delivery, the seller would be entitled to sue for the price of the goods.

Salman Aslam Butt, Advocate Supreme Court for Appellant (in C.A. 371 of 2005).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant (in C.A. 717 of 2005).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent (in C.A. 371 of 2005).

Salman Aslam Butt, Advocate Supreme Court for Respondent (in C.A. 717 of 2005).

Date of hearing: 20th November, 2013.

2014 S C M R 941

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Gulzar Ahmed, JJ

MUHAMMAD HANIF---Appellant

Versus

TARIQ MEHMOOD and others---Respondents

Civil Appeal No.1058 of 2011, decided on 13th February, 2014.

(On appeal from the judgment of the Lahore High Court, Lahore dated 28-9-2011 passed in R.S.A. No.256 of 2010)

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

----S. 13---Suit for pre-emption---Talb-e-Muwathibat, making of---Date---Proof---Pre-emptor stating in his plaint that Talb-e-Muwathibat was made four days prior to issuance of notice of Talb-e-Ishhad---Propriety---Day on which Talb-e-Muwathibat was made could be established through any means without specifically mentioning the date--- Notice of Talb-e-Ishhad appended with the plaint was dated 26-6-1998, thus date of making Talb-e-Muwathibat stood proved with reference to the date of issuance of notice of Talb-e-Ishhad---Appeal was allowed accordingly.

(b) Words and phrases---

----"Time"---Definition and meaning.

Abdul Latif v. Dil Mir 2013 SCMR 1087 and Black's Law Dictionary ref.

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

----S. 13---Suit for pre-emption---Talb-e-Muwathibat, making of---Time---Time of making Talb-e-Muwathibat mentioned as late evening ("shaam") in the plaint instead of the exact time---Propriety---Reference to time could not be exclusively tied to time by the clock or watch but might be expressed by other recognized modes, for example, dawn, morning, noon, afternoon, evening or night---Statement of pre-emptor with reference to a particular period of the day would therefore meet the requirement of time, as holding otherwise and restricting the mentioning of time with reference to the clock or watch would deprive a pre-emptor from the enforcement of his right, if at the time of receiving information of the transaction no one in the majlis (gathering) was wearing a watch.

Abdul Latif v. Dil Mir 2013 SCMR 1087 distinguished.

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

----S. 13---Suit for pre-emption---Talb-e-Muwathibat, making of---Time--- Immediate making of Talb-e-Muwathibat upon getting information of sale---Immediacy of making of Talbs could not be tested with reference to the time by the watch, as doing so would require every witness to the Talb to mention the time by the minute or fraction of a minute of receiving the information and making Talb---Such precision of timing by the minute or second would practically be impossible---Appeal was allowed accordingly.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

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

Ex parte: Respondent No.3.

Date of hearing: 13th February, 2014.

2014 S C M R 946

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

MUHAMMAD SIBTAIN---Appellant

Versus

Malik FAKHAR-UD-DIN through LRs.---Respondent

Civil Appeal No.1497 of 2013, decided on 6th March, 2014.

(Against the judgment dated 1-11-2013 passed by the Peshawar High Court D.I. Khan Bench in C.R. 8 of 2010)

Specific Relief Act (I of 1877)---

----S. 8---Suit for recovery of possession of immoveable property---Decree of possession based on demarcation proceedings and report prepared by Commission---Demarcation proceedings and report of Commission---Deficiencies and anomalies---Effect---Suit of plaintiff was based upon demarcation proceedings and a report prepared by a retired Naib Tehsildar, who had been appointed as Commission by Assistant Commissioner (Grade I) and not by the Trial Court---Onus of proving that the report could be treated as evidence was on the plaintiffs---Appellate Court had noted certain anomalies and deficiencies in the report of Commission, which were that the report was not signed by the Presiding Officer of the Court/Revenue Officer; that no notice was served on the defendant by the Revenue Officer; that report was accepted without notice and without hearing the defendant; that defendant was not even served for the purpose of demarcation proceedings by the Commission; that defendant was served orally, but his signatures were not obtained by the serving officer; that report was accepted by Revenue Officer after about one year and five months of the application for demarcation of disputed land, and as a whole it took two years and nine months to conclude the demarcation proceedings, including the confirmation of the Commission's report; that Commission was not examined as a witness before the court, and that no witness was produced to prove signatures of Commission on the proceedings conducted by him---High Court had not adverted to said anomalies and deficiencies noted by the Appellate Court for concluding that report of the Commission was not proved and, therefore, could not be made the basis for decree of possession in favour of plaintiffs---Supreme Court remanded the case to the Trial Court to enable parties to lead evidence and to ensure that plaintiffs were not non-suited without being given an opportunity of proving the report or adducing evidence to establish their claim over disputed property---Appeal was disposed of accordingly.

Gulzarin Kiani, Senior Advocate Supreme Court for Appellant.

Mukhtar Ahmed Ch., Advocate Supreme Court and Syed Rafaqat Hussain Awan, Advocate-on-Record for Respondent.

Date of hearing: 6th March, 2014.

2014 S C M R 949

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Mushir Alam, JJ

Constitution Petition No.6 of 2011 (Against illegal appointments and corruptions in EOBI)

Syed MUBASHIR RAZA JAFFRI and others---Petitioners

Versus

EMPLOYEES OLD-AGE BENEFITS INSTITUTIONS (EOBI) through President of Board, Board of Trustees and others---Respondents

C.M.A. No.5216 of 2012 in Constitutional Petition No.6 of 2011

(Against appointment of Raja Azeemul Haq as Executive Director of the World Bank)

AND

H.R.C. No.48012-P of 2010

(Application by Tajamal Hussain against illegal appointments and massive corruption in EOBI)

Constitutional Petition No.6 of 2011, C.M.A. No.5216 of 2012, H.R.C. No.48012-P of 2010, decided on 17th March, 2014.

(a) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10---Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution against illegal appointments in Employees Old-Age Benefits Institutions (EOBI) based on political influence, nepotism and cronyism---Maintainability---"Public interest litigation"---Violation of fundamental rights of citizens---Scope---Controversy involved in the present petition was clearly within the domain of "public interest litigation" qua violation of fundamental rights of citizens at large by a public body (EOBI) in the matter of selection and appointments---Grievance in the present case, concerned the rights of more than 23,127 applicants who had applied for posts in EOBI but their applications were passed over due to nepotism and political pressure, in contravention of their fundamental rights enshrined under the Constitution, which in turn also affected the public at large as it called into question the manner in which the bureaucratic system was being abused by the ruling elite---Constitutional petition was held to be maintainable accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Regarding pensionary benefits of the Judges of Superior Courts PLD 2013 SC 829 ref.

(b) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10--- Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2--- Constitution of Pakistan, Arts. 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution against illegal appointments in Employees Old Age Benefits Institutions (EOBI) based on political influence, nepotism and cronyism---Report of Fact Finding Committee constituted by management of EOBI disclosed the mismanagement, corruption, nepotism and politicising of the disputed appointments, which were made in a mala fide manner, thereby crushing the merit criteria in a public owned establishment of the Government---Many persons like the then Chairman of EOBI, did not realize or adhere to the reality of merit criteria and were adamant to play with the future of the younger generation for their own good and to achieve their nefarious designs---Record showed as to how persons belonging from one political group and from certain constituencies/areas from where, brother and nephew of Chairman, EOBI, were elected as Parliamentarians were obliged and accommodated in the matter of their appointments in bulk, in an illegal manner---Applicants (23648 in number), who had applied for the vacancies in EOBI, had equal right of opportunity as citizens of the country, in terms of Art. 25 of the Constitution, but were thrown out of the competition despite the fact that they also met the requisite qualifications and might have been more meritorious, but could not exert either political pressure or avail the fruits of nepotism and corruption, forming basis for the selection and appointment of appointees in question, many of whom had not even applied for the job in terms of the advertisement for the vacancies---Appointees in the present case succeeded in getting entry from the backdoor at the cost of many other bona fide candidates, whose applications were literally thrown in the dust-bin in an un-ceremonial manner just for the sake of accommodating the blue eyed ones---Gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts, being citizens of the country, with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum-merit criteria to be observed as per the applicable rules and regulations of the EOBI---Ill-gotten gains could not be defended/protected under any canon of law or even on humanitarian considerations---Record also showed that 238 employees/ officials in the EOBI were appointed on contract/daily and contingency basis during the period between September, 2011 to May, 2012 in flagrant violation of the prescribed rules and regulations and subsequently such employees were also purportedly regularized---For regularization of such employees some summaries were floated and illegal approval was obtained from the Cabinet Sub-Committee, which otherwise neither figured anywhere in the hierarchy of EOBI nor had any legal authority to rectify such illegal and wrong appointments---Said contract appointments were made at a time when there were no available posts for these persons and the whole exercise was, on the face of it, undertaken on the basis of nepotism and political pressure in vogue during that period---All this exercise was undertaken by the officials of EOBI despite a specific stay order issued by the Supreme Court---Supreme Court observed that it was a sad fact of our bureaucracy that it could be so susceptible to the whims and wishes of the ruling elite class etc, which resulted in an obvious weakening of State institutions such as the EOBI, whereby the general public, whose interest such establishments had been charged with protecting, were adversely and heavily affected in different ways---Supreme Court directed that all the illegal appointments, deputations and absorptions made in the EOBI, as detailed in the report of Fact Finding Committee, were without lawful authority and of no legal effect and accordingly services of such employees stood terminated forthwith; that all such vacancies and other available vacancies in EOBI should be advertised and filled afresh strictly in accordance with applicable rules and regulations, subject to prescribed quota, requisite qualifications and merit criteria, for which the Chairman, EOBI shall be personally responsible; that the matter regarding all the illegal appointments should be investigated by the National Accountability Bureau authorities; that all officials directly or indirectly involved in the process of such illegal appointments on the basis of corruption, nepotism and political exigencies should be proceeded against in accordance with law within two months; that contempt proceedings should be initiated against all those who were, prima facie, found guilty of violation of a stay order of the Supreme Court dated 21-1-2011 in H.R.C. No.48012 of 2010, particularly in the process of appointment of 238 employees/officials during the period between September 2011 to May 2012---Constitutional petition was disposed of accordingly.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Tariq Aziz-ud-Din: in re 2010 SCMR 1301; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

(c) Public office---

----Appointments to public institutions---Scope---Appointments to public offices were to be made strictly in accordance with applicable rules and regulations, without any discrimination and in a transparent manner---All appointments to public institutions must be based on a process that was palpably and tangibly fair and within the parameters of its applicable rules, regulations and bye-laws.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Tariq Aziz-ud-Din: in re 2010 SCMR 1301; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

(d) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10--- Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Appointment of respondent, as Executive Director of World Bank---Allegation was that respondent did not have the requisite experience or qualifications for the said job and was only appointed due to political pressure as he was son-in-law of the then Prime Minister---Validity---Material placed on record showed that after resignation of respondent from a post in BS-18 in the Income Tax Group, he jumped in the EOBI, got appointment and promotions from one step to another to reach BS-21 within a short period of three years---Respondent while serving in EOBI was appointed on deputation in the Prime Minister Secretariat as Joint Secretary (BS-20) and within no time of his joining back EOBI, he was promoted as Director General (BS-21) in EOBI---Supreme Court directed that the matter of illegal appointment of respondent in the World Bank, should be investigated by the National Accountability Bureau authorities---Constitutional petition was disposed of accordingly.

Petitioners Nos. 1 and 2 in person (in Constitutional Petition No.6 of 2011).

Saiful Malook, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 3 (in Constitutional Petition No.6 of 2011).

Mirza Waqas Rauf, DAG and Pervaiz Khan, D.G., H.R. on behalf of Federation (in Constitutional Petition No.6 of 2011).

Abdul Latif Yousafzai, Advocate-General, Khyber Pakhtunkhwa and Malik Faisal Rafique, Additional A.-G., Punjab on Court Notice (in Constitutional Petition No.6 of 2011).

Nemo for other Respondents (in Constitutional Petition No.6 of 2011).

Mirza Waqas Rauf, DAG and Pervaiz Khan, DG., HR, EOBI for Federation (in C.M.A. No.5216 of 2012 in Constitutional Petition No.6 of 2011).

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record along with applicant on behalf of Raja Azeemul Haq (in C.M.A. No. 5216 of 2012 in Constitutional Petition No.6 of 2011).

Applicant in person (in H.R.C. No.48012-P of 2010).

Sardar M. Aslam, Advocate Supreme Court for appointed officials (in H.R.C. No.48012-P of 2010).

Saiful Malook, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Chairman EOBI (in H.R.C. No. 48012-P of 2010).

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record along with Applicant for Raja Azeemul Haq (in H.R.C. No.48012-P of 2010).

Athar Minallah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants Mutali Khan and others (in H.R.C. No.48012-P of 2010).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Applicants/Intervener (in H.R.C. No.48012-P of 2010).

Nemo for Applicants in C.M.A. 1720 of 2011 (in H.R.C. No.48012-P of 2010).

Date of hearing: 11th December, 2013.

2014 S C M R 979

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

Haji RAUF---Petitioner

Versus

ABDULLAH QAISER and others---Respondents

Civil Petition No.147-K of 2013, decided on 16th May, 2013.

(On appeal from the judgment dated 8-2-2013 of the High Court of Sindh, Karachi passed in C.P. No.S-939 of 2012)

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

----Ss. 18 & 15---Constitution of Pakistan Art. 185(3)---Change of ownership of rented premises---Nature of notice under S.18 of the Sindh Rented Premises Ordinance, 1979---Scope---Tenant/petitioner impugned order of High Court whereby tenant's constitutional petition against ejectment order passed against him, was dismissed---Contention of the tenant was that, despite change of ownership of the premises, no notice under S. 18 of the Sindh Rented Premises Ordinance, 1979 was served on him, which was mandatory in nature, and without the same, the tenant was not liable to pay rent, and was therefore not in default---Validity---Although no notice under S.18 was issued to the tenant, the tenant had however, admitted that he had knowledge of change of ownership and it was therefore tenant's duty to approach the new landlords and pay rent and in case of refusal on part of landlords to accept the same, tenant was to follow the procedure prescribed under S.10(3) of the Ordinance---Tenant had been in default of rent for a long time and had accepted this fact when he sent a letter along with a cheque for arrears of rent, which was refused by the landlords---Supreme Court observed that despite non-service of notice under S.18 of the Sindh Rented Premises Ordinance, 1979 the tenant was not absolved of the liability to pay rent and had he deposited the rent in the court or sent the same by postal money order, plea of bona fide on part of the tenant could be accepted, however, in the present case, default of more than 13 years could not be condoned on any ground---Leave to appeal was refused, in circumstances.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 16th May, 2013.

2014 S C M R 982

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, CJ, Khilji Arif Hussain and Sh. Azmat Saeed, JJ

Syed NAZIR GILLANI---Petitioner

Versus

PAKISTAN RED CRESCENT SOCIETY and another---Respondents

C.R.P. No.163 of 2005 in Civil Appeal No.1080 of 1998, decided on 11th February, 2014.

(To review this Court's judgment dated 1-6-2005 passed in Civil Appeal No.1080 of 1998)

Pakistan Red Crescent Society Act ( XV of 1920)---

----S. 5---Constitution of Pakistan, Arts. 199 & 188---Service Rules framed by Pakistan Red Crescent Society---Non-statutory in nature---Constitutional petition filed before High Court by an employee of Pakistan Red Crescent Society challenging his removal from service---Maintainability---(Service) Rules framed by Pakistan Red Crescent Society were non-statutory and on such count constitutional petition filed by its employee before the High Court challenging his removal from service would not be maintainable---Review petition was dismissed accordingly.

Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court along with Aftab Ali, Assistant Director for Respondents.

Date of hearing: 11th February, 2014.

2014 S C M R 984

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

MUHAMMAD ASLAM QURESHI---Petitioner

Versus

Mrs. MOEENA HIDAYATULLAH and another---Respondents

C.P.L.A. No.550-K of 2011, decided on 4th July, 2011.

(On appeal from judgment of High Court of Sindh, Karachi dated 26-4-2011 passed in C.P. No.207 of 2010)

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

----S. 21---Constitution of Pakistan Arts. 185(3) & 199---Constitutional jurisdiction of High Court---Scope---Leave to appeal was granted by Supreme Court to examine the contention of the petitioner that as far as findings of fact were concerned, Rent Controller and First Appellate Court in terms of S. 21 of the Sindh Rented Premises Ordinance, 1979 were the final authorities to record such findings, and the same were not open to question before the High Court in exercise of its constitutional jurisdiction under Art. 199 of the Constitution.

Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 ref.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th July, 2011.

2014 S C M R 985

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, HCJ., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

WAHID BAKHSH BALOCH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.73 of 2013, decided on 12th March, 2014.

(On appeal from the judgment dated 18-12-2012 passed by the High Court of Balochistan, Quetta in Criminal Ehtesaab Appeal No.26 of 2001)

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

----S. 9(a)(vi)---Misuse of authority---Burden of proof---Initial burden was on the prosecution to prove that the accused was guilty of the offence for which he was being charged.

Pir Mazharul Haq v. State PLD 2005 SC 63 and M. Anwar Saifullah Khan v. State PLD 2002 Lah. 458 ref.

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

----Ss. 9(a)(vi) & 10(a)---Misuse of authority---Reappraisal of evidence---Allegation based on statement of witness and not corroborated by any documentary evidence---Prosecution failing to discharge its initial burden of proving the charge beyond reasonable doubt---Effect---Allegation against accused was that in his capacity as Deputy Commissioner he asked a sub-engineer in the Municipal Committee to make an incorrect (reduced) assessment of the value of State land and got the same allotted in favour of the co-accused---Accountability Court convicted accused under S. 10(a) of National Accountability Ordinance, 1999 and sentenced him to six months imprisonment with a fine of Rs.25,000---Appeal filed by accused before the High Court was also dismissed---Validity---Only evidence to prove mens rea of accused was the statement of the sub-engineer, who alleged that he initially assessed the value of land as Rs. 150 per sqft. but it was at the asking of the accused that he reduced it to Rs.30 per sqft.---Sub-engineer admitted in his cross-examination that he never gave it in writing that property was valued at Rs. 150 per sqft.---Sub-engineer stated that he assessed the value of subject property after assessing the value of adjacent properties but admitted that adjoining properties were never assessed as none was sold---No question was put to the accused by the prosecution about the property being assessed at the rate of Rs.150 per sqft. at his asking, or about any pecuniary benefit that he derived from the said transaction, or about the fact that property was owned by Revenue department and not the Municipal Committee---Statement of sub-engineer regarding value of property was not corroborated nor was there any documentary evidence---Prosecution had failed to discharge its initial burden to prove the charge beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted of the charge.

Wasim Sajjad, Senior Advocate Supreme Court for Appellant.

Mehmood Raza, Additional P.-G. NAB for Respondent.

Date of hearing: 12th March, 2014.

2014 S C M R 994

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

Messrs FAUJI CEMENT COMPANY LIMITED---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Customs, Board of Revenue, Islamabad and others---Respondents

Civil Appeal No.1801 of 2005, decided on 7th March, 2014.

(On appeal from the judgment dated 24-7-2001 passed by the High Court of Sindh, Karachi in Spl. C.A. No.66 of 1998)

(a) Customs Act (IV of 1969)---

----S. 31A---Effective rate of duty on goods, determination of---Date of import---According to S. 31A of Customs Act, 1969 date of import of goods determined the applicability of customs duty---Date on which a Letter of Credit was established or steps were taken in respect of the import of goods were not relevant for such purpose.

(b) Customs Act (IV of 1969)---

----S. 19--- Concession available under a notification/Statutory Regulatory Order(S.R.O.)---Expiry of such notification/S.R.O.---Effect--- After expiry a notification/S.R.O. the benefits thereunder could not be claimed.

Khawaja M. Farooq, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

M. Bilal, Senior Advocate Supreme Court and Raja Muhammad Iqbal, Advocate Supreme Court for Respondent No.2.

Date of hearing: 7th March, 2014.

2014 S C M R 997

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

Dr. ALYAS QADEER TAHIR---Appellant

Versus

SECRETARY M/O EDUCATION (NOW M/O CADD), ISLAMABAD and others---Respondents

C.A. No.780 of 2013, decided on 23rd January, 2014.

(On appeal against the judgment dated 10-4-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No.397(R)CS/2011)

Civil service---

----Promotion--- Conditions/eligibility---Rules / conditions/qualification for promotion to higher grade not existing at time of appointment of civil servant but only enacted subsequent to appointment---Legality---Contention of civil servant that requirement of a Master's degree for promotion did not exist at the time of his appointment, therefore it could not be made a requirement for promotion at a subsequent stage just to debar him from promotion to the next scale---Validity---Such contention was not legally and logically tenable---Enactments of rules and amendments therein was the prerogative of the Government---Government could enact and amend rules according to the needs and exigencies of service---Institutional interest shaped structure of a service and not individual interest---Although at the time of appointment of civil servant in question, no rules (for promotion) were enacted or enforced but that did not mean that the institution or department could not change the rules subsequently---Institution's/department's right to improve and update its service structure to keep pace with modern age could not be restrained or restricted on the ground that at the time of appointment of a civil servant, a certain qualification was not a requirement for promotion---Vires or validity of rules or amendments therein attending to qualification for promotion could not be looked askance at, when there was absolutely nothing in the rules to show that they were either person specific or an off shoot of mala fides--- Appeal was allowed accordingly.

Government of the Punjab and others v. Muhammad Zafar Bhatti and others 2004 PLC (C.S.) 881; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; The Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmed Khan PLD 1960 SC 81; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155 and M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927 ref.

M. Aftab Alam Rana, Advocate Supreme Court for Appellant.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No.4.

Ex parte: Respondents Nos.1 to 3.

Date of hearing: 23rd January, 2014.

2014 S C M R 1003

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD through Chairman and another---Petitioners

Versus

AMNA AFRIDI and others---Respondents

Civil Petition No.200 of 2013, decided on 13th August, 2013.

(On appeal from the judgment dated 4-12-2012 passed by the Islamabad High Court, Islamabad in W.P. No.3512 of 2012)

Federal Public Service Commission Ordinance (XLV of 1977)---

----Ss. 7 & 10---Federal Public Service Commission Rules for Competition Examination (CSS)---Allocation of group---Mistake by Federal Public Service Commission---Vacancy, increased by High Court---Scope---Commission was aggrieved of judgment passed by High Court increasing one vacancy in specific service group---Validity---High Court in its judgment admitted the fact of mistake and found respondent candidate entitled to preference over other candidate but on erroneous assumption that respondent candidate had acquired vested right proceeded to direct her adjustment also in the same group by creating one additional vacancy---Such finding of High Court could not be sustained as there was no room in rules and policy for creating one additional vacancy, when it was found that candidate was entitled to be selected for the same group---High Court was not justified to interfere with rules and policy of government that of increasing of fixed quota/vacancies from 3 to 4---Judgment of High Court to the extent of adjustment of respondent candidate was without any justification and not valid in the eye of law and therefore, the same was set aside---Appeal was allowed in circumstances.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 rel.

Imran-ul-Haq, DAG along with Sajid Ilyas Bhatti, DAG for Petitioners.

Mahmood Ahmed, Director Legal, FPSC, Siddique Sajid, Director, CSS, Kamran Raffat, A.D. Legal, FPSC and Khawaja Khurram Naeem, Additional Director, CSA for Respondents.

Respondent No.2 in person.

Date of hearing: 13th August, 2013.

2014 S C M R 1008

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SHAHID AHMED---Petitioner

Versus

OIL AND GAS DEVELOPMENT COMPANY LTD. through Managing Director, Islamabad and others---Respondents

Civil Petition No.595-K of 2013, decided on 28th February, 2014.

(On appeal from judgment dated 4-9-2013 of the High Court of Sindh, Hyderabad, passed in C.P. No.D-413 of 2013)

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12-A---Constitution of Pakistan, Art. 199---Civil service---Date of birth, alteration in---Delay of 20 years in seeking alteration in date of birth--- Laches--- Effect---Employee of Oil and Gas Development Company (OGDCL) made an application to the company for correction in his date of birth from 6-6-1953 to 11-6-1956 on the strength of a certificate issued by the Executive District Officer (Education)---Said application was rejected by OGDCL---Employee filed a constitutional petition before High Court against order of OGDCL, which was dismissed on the ground of laches---Validity---Employee at the time of joining service in OGDCL submitted numerous documents, including his secondary school certificate, Computerized National Identity Card, personal bio-data, personal data form, and all said documents mentioned his date of birth as 6-6-1953---Employee made representation before OGDCL for correction of his date of birth after serving his department for more than 20 years, at a time when he was nearing retirement---Employee was unable to offer any explanation for such inordinate delay in seeking correction of his date of birth---Even at the time of joining service, employee did not reserve his right to seek amendment in his date of birth, nor did he place any material to show that he had approached any authority for correction of his date of birth at the time of joining service---In terms of office memorandums/ circulars issued by OGDCL during different years, employee in question was required to declare his correct date of birth at the time of joining service, and said circulars also provided that date of birth declared at the time of entry into service shall be treated as final and no amendment would be allowed at any subsequent stage---Employee had submitted his date of birth as 6-6-1953 in response to said circulars, and now after 20 years in service he was seeking to nullify documents submitted by him earlier---High Court in such circumstances was justified in holding that constitutional petition was barred by laches.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Employee seeking protection against discrimination---Scope---Where employer/authority had wrongly given a right to an employee in contravention of the law or rules, it would not form basis to confer any right upon other employees---Illustration.

(c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on a certificate issued by the Executive District Officer (Education) to seek change in his date of birth---Such certificate authorizing change in date of birth had no legal sanctity nor could bind the employer organization to change and/or amend the service record.

(d) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on a medical certificate issued by a surgeon to seek change in his date of birth---Radiological reports were essential for determining the age of a person---Medical certificate issued by a surgeon would not be of any significance, if the surgeon had not formed his opinion on the basis of radiological reports.

(e) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12-A---Civil service---Date of birth, alteration in---Scope---Civil servant relying on academic certificates based on a sworn affidavit to seek change in his date of birth---Such academic certificates could not sanctify the correct date of birth, unless such material was proved before a civil court of competent jurisdiction by recourse to a civil suit.

M.M. Aqil Awan, Advocate Supreme Court for Petitioner.

Salahuddin Gandapur, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents.

Date of hearing: 28th February, 2014.

2014 S C M R 1015

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

ZIA UR REHMAN---Appellant

Versus

Syed AHMED HUSSAIN and others---Respondents

Civil Appeals Nos.1308 and 1309 of 2013, decided on 27th January, 2014.

(On appeal from the judgment dated 23-10-2013 passed by the Election Tribunal, Abbottabad in Election Petitions Nos.42 of 2013 and 95 of 2013)

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

----Ss. 52, 54, 55(3) & 63(a)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Format---Verification on oath---When the law prescribed a certain format for an election petition and its verification on oath, and entailed penal consequences for its non-compliance, then it was a mandatory provision.

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

----S. 52---Election petition---Maintainability---When an objection was raised with regard to maintainability of an election petition for non-compliance with a mandatory provision, the Court/Tribunal should decide such preliminary objection (first), because if such objection was sustained, then the Court/Tribunal was left with no option but to dismiss the (election) petition. [p. 1019] B

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

----Ss. 52 & 55(3)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Verification on oath---Every election petition and every schedule or annexure to the election petition had to be signed by the petitioner and verified in the manner laid down in O. VI, R.15, C.P.C. [p. 1020] C

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

----Ss. 52, 54, 55(3) & 63(a)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Maintainability---Verification on oath---Mandatory requirement---Every election petition and every schedule or annexure to the election petition had to be signed by the petitioner and verified in the manner laid down in O. VI, R.15, C.P.C.---Election petitions filed before the Election Tribunal, in the present case, were not verified on oath in the manner prescribed under O. VI, R.15, C.P.C.---If law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent---Petitioners had filed applications for amending their election petitions to remove the objection regarding non-compliance with S. 54 of Representation of the People Act, 1976, however said applications were time-barred as they were filed well beyond the period of 45 days as provided under S. 52(2) of Representation of the People Act, 1976---Election Tribunal should not have allowed said applications as they were time-barred---Appeal was allowed accordingly and impugned judgment of Election Tribunal was set aside.

Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250; Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600; Abdul Qadir v. Abdul Wassay 2010 SCMR 1877 and Umar Aslam v. Sumera Malik PLD 2007 SC 362 ref.

Muhammad Rizwan Gill v. Nadia Aziz PLD 2010 SC 828 and Umer Aslam v. Sumera Malik 2014 SCMR 215 distinguished.

Tariq Mehmood, Senior Advocate Supreme Court for Appellant (in both cases).

Kamran Murtaza, Advocate Supreme Court for Respondent No.1 (in C.A. No.1308 of 2013).

Mian Abdur Rauf, Advocate Supreme Court for Respondent No.1 (in C.A. No.1309 of 2013).

Date of hearing: 27th January, 2014.

2014 S C M R 1025

[Supreme Court of Pakistan]

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

WARIS---Appellants

Versus

MUHAMMAD SARWAR---Respondent

Civil Appeal No.682 of 2010 out of Civil Petition No.1598 of 2009, decided on 11th February, 2014.

(On appeal from the judgment dated 27-4-2009 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.228 of 2004)

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

----S. 13---Civil Procedure Code (V of 1908), O. VI, R. 17---Suit for pre-emption---Findings of Trial Court not challenged before Appellate Court---Effect---Past and closed transaction---Scope---Pleadings, amendment of---Pre-emptor did not state in his plaint the date, time and place where he received the information about the subject sale, but subsequently filed an application under O.VI, R. 17, C.P.C. for amending the plaint by mentioning the said date, time and the place---Said application was allowed by the Trial Court on the payment of cost and such cost was also received by the vendee---Vendee did not challenge such order of Trial Court before any forum---Trial Court while dilating upon the issue as to whether pre-emptor had fulfilled the requirements of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, answered the issue in positive and this was neither challenged by vendee in appeal nor any cross objections were filed against it at the time of filing appeal before the first Appellate Court---Vendee in such circumstances was barred from raising such point before the Supreme Court because it had become a past and closed transaction, and could not be re-opened as it had attained finality---Appeal was dismissed accordingly.

Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 distinguished.

Sultan alias Sultan Ahmed v. Mehr Nawazish Ali and another 1971 SCMR 185; Khairati and 4 others v. Aleemud-Din and another PLD 1973 SC 295; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Abdul Rashid Awan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 11th February, 2014.

2014 S C M R 1032

[Supreme Court of Pakistan]

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

MUHAMMAD SARFRAZ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.70-L of 2014, decided on 18th March, 2014.

(Against the order dated 23-12-2013 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.15745-B of 2013)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Over-writing on cheque---Complainant alleged that he paid the accused different amounts from time to time for purposes of business, and the accused issued him a "self cheque" for returning the said amounts, however the cheque was dishonoured on presentation---Cheque in question had some overwriting upon the date of the cheque and the amount in figure---Said cheque was not issued in favour of the complainant, and there was no amount mentioned on it in words---No evidence was available with the complainant to show as to how, when and by what process various amounts were paid to the accused for business purposes---Maximum sentence for offence under S. 489-F, P.P.C. was three years imprisonment, thus it did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was behind bars for the last about six months--- Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Muhammad Masood Chishti, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Shams-ul-Hassan, S.-I. for the State.

M.A. Qureshi, Advocate-on-Record for Respondent No.2 (in person).

Date of hearing: 18th March, 2014.

2014 S C M R 1034

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ

Criminal Appeal No.413 of 2003

GHULAM MOHY-UD-DIN alias HAJI BABU and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.414 of 2003

Haji MUHAMMAD SADIQ---Appellant

Versus

LIAQUAT ALI and others---Respondents

Criminal Appeals Nos.413 and 414 of 2003, decided on 18th February, 2014.

(On appeal from the judgment dated 29-10-2001 passed by the Lahore High Court, Lahore in Criminal Appeal No.202 of 1996 and Criminal Revision 245 of 1996 and Murder Reference No.379 of 1998)

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

----S. 302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Alternative sentences---Scope---Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded---If the intent of the legislature was to take away the discretion of the court, then it would have omitted from S. 302(b), P.P.C. the alternative sentence of life imprisonment--- Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case.

Hassan and others v. The State and others PLD 2013 SC 793 ref.

(b) Islamic jurisprudence---

----Crime and punishment---Extra degree of care and caution---Justice with mercy---Scope---Fundamental principles of Islamic jurisprudence on criminal law was to do justice with mercy, being the attribute of Allah Almighty---On earth such attribute had been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution was required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.

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

----S. 302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient to award life imprisonment instead of death penalty--- Single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment---If a single doubt or ground was available, creating reasonable doubt in the mind of court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case---If the Judge/Judges entertained some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed.

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

----Ss. 302(b) & 34---Qatl-e-amd---Common intention---Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Motive alleged for murder too feeble or remaining unproved---Effect---Sufficient to reduce death sentence to life imprisonment---Accused and co-accused were alleged to have inflicted dagger blows to the deceased during the occurrence---Trial Court convicted accused and co-accused under Ss. 302(b) & 34, P.P.C. and sentenced them to death as Ta'zir on two counts---High Court confirmed death sentence awarded by Trial Court---Validity---Specific motive was set up in the F.I.R. to the effect that there was a dispute between the parties over a 'Khokha' (wooden stall), however, no independent corroboratory evidence on such point was furnished---Complainant claimed that the dispute over the stall led to civil litigation but no document from judicial record was furnished before the Trial Court to show that the dispute over the stall was a burning issue between the parties and they had already been battling for the same in the civil court--- Motive part of the incident, therefore, remained absolutely unproved---Even if motive set up in the F.I.R. did lay with the accused and co-accused, it was not of such degree and magnitude to take lives of two persons, moreso, when the same remained shrouded in mystery---Sentence of death awarded to the accused and co-accused was not warranted in law as the motive, besides being too feeble, had not been established---Such fact certainly served as a mitigating circumstance, where normal penalty of death was not to be awarded but sentence of life imprisonment was more appropriate---Besides accused and co-accused remained behind bars as under-trial prisoners for about two years and they had also spent almost 16 years in death-cells---Conviction of accused and co-accused under S. 302(b), P.P.C. was maintained in circumstances, however their sentences of death were reduced to life imprisonment---Appeal was disposed of accordingly.

Muwaz Khan v. Ghulam Shabbir and The State 1995 SCMR 1007 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Prisoner on death row---Reduction of death sentence to life imprisonment---Scope---Accused remained in jail as under-trial prisoner for about two years and also spent almost 16 years in death cell---Effect---Highly desirable and legally appropriate to reduce sentence of such accused from death to life imprisonment---Illustration.

Dilawar Hussain v. The State 2013 SCMR 1582 and Hassan and others v. The State and others PLD 2013 SC 793 ref.

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

----Ss. 302(b) & 34---Constitution of Pakistan, Art. 185---Criminal Procedure Code (V of 1898), S. 417---Qatl-e-amd---Common intention---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Accused was alleged to have inflicted dagger blows to the deceased during the occurrence--- Trial Court convicted accused under Ss.302(b) & 34, P.P.C. and sentenced him to death---High Court acquitted the accused of the charge of murder by extending him benefit of doubt--- Validity--- Accused had been extended the benefit of doubt by way of abundant caution, not only because he surrendered to the police without any delay and at the very outset pleaded innocence but also because no recovery of alleged crime weapon was effected from him---Accused had not been attributed for causing fatal injuries to any one of the deceased---Once accused had earned the benefit of acquittal, he was not liable to be sent back to prison after a period of 18 years had passed, as such a course would defeat the ends of justice---Appeal against acquittal of accused was dismissed accordingly.

Syed Zahid Hussain Bukhari, Advocate Supreme Court for Appellants (in Criminal Appeal No.413 of 2003).

Ahmed Raza Gillani, Additional P.-G. (Pb.) for the State (in Criminal Appeal No.413 of 2003).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Appellant (in Criminal Appeal No.414 of 2003).

Raja Ghazanfar Ali Khan, Advocate Supreme Court for Private Respondents (in Criminal Appeal No.414 of 2003).

Ahmed Raza Gillani, Additional P.-G. (Pb.) for the State (in Criminal Appeal No.414 of 2003).

Date of hearing: 18th February, 2014.

2014 S C M R 1048

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

ZEESHAN ENERGY LTD. and others---Appellants

Versus

FAYSAL BANK LTD.---Respondent

Civil Appeal No.2059 of 2004 and C.M.A. No.2172 of 2013, decided on 12th February, 2014.

(On appeal from the judgment dated 6-9-2004 passed by the Lahore High Court, Lahore in R.F.A. No.281 of 2003)

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

----S. 10(8)---Recovery suit filed by Bank against borrower---Leave to defend suit, grant of---Grounds---Substantial questions of law and fact involved---Opportunity to borrower/defendant to prove documents for establishing the nature of its relationship with the Bank---Simultaneous suits filed by Bank and borrower against each other---Effect---Both suits to be heard and decided together---Defendant-company started a power generation project---Bank had granted a letter of credit facility to the defendant-company---Defendant-company claimed that the power generation project was agreed to be 100% equity based "without any banking finance"---Bank claimed amount from defendant-company on the basis of certain guarantees which were issued by it to secure the lease finance---Single Bench of High Court dismissed application of defendant-company for leave to defend and decreed the suit filed by the Bank---On appeal Division Bench of High Court only reduced the decretal amount---Validity---Documents available on record showed that project in question had been conceived as based entirely in equity---Bank could not explain the circumstances in which its involvement in the project was altered from 100% equity to that of banking finance---Record showed that arrangements between defendant-company and the Bank were prima facie, based on reciprocal promises other than routine/conventional finance---Significant aspects of the dealings between defendant-company and the Bank needed determination on the basis of evidence at regular trial---If defendant-company was given an opportunity to prove the documents on record and the nature of its relationship with the Bank, it would be in accordance with the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to grant leave to defend to the defendant-company as substantial questions of law and fact required adjudication---Bank did not bring on record certain documents which were crucial for adjudicating the dispute relating to the date of payment under Letter-of-Credit and for determining as to whether the project was conceived as equity based--- Dates of payment under the Letter-of-Credit given by the Bank were prima facie, inconsistent with its plea that it was through lease finance that payments under the Letter-of-Credit were made---Sufficient documentary and circumstantial evidence existed on record to prima facie show that allegations made by the defendant-company against the Bank were neither frivolous nor un-substantiated---Defendant-company had also filed a suit against the Bank prior to the present recovery suit, wherein Bank had filed an application for rejection of defendant-company's plaint---Suit filed by defendant-company and present recovery suit should have been conducted and proceeded simultaneously and decided together in order to avoid any conflicting judgment---Denial of leave to defend to the defendant-company would in the facts and circumstances of the case, amount to denial of legal right available to defendant-company under S. 10(8) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Impugned judgments and decrees of Single Bench and Division Bench of High Court were set-aside and leave to defend was granted to defendant-company---Supreme Court directed that suit filed by defendant-company against the Bank and present recovery suit filed by the Bank against defendant-company should be heard together as the bank had already been granted unconditional leave to defend in the suit filed by defendant-company--- Appeal was disposed of accordingly. [pp. 1054, 1055, 1056, 1057, 1058] A, B, C, D, E, F, H, I, L & M

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

----S. 10---Recovery suit filed by Bank against borrower/defendant---Leave to defend suit, grant of---Scope---Defendant/borrower had also filed a suit against the Bank prior to the recovery suit---Effect---Mere filing of a suit by the borrower (against the Bank or financial institution) would not be sufficient, as a general rule, for granting leave to defend to the borrower in the recovery suit filed by the Bank or financial institution---Illustration.

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

----S. 10---Recovery suit filed by Bank against borrower/defendant---Leave to defend suit, grant of---Scope and purpose---Grant of leave to defend merely ensured that a right which was ordinarily available to all defendants as of right in all civil suits was not denied to borrowers/defendants in Banking suits under the Financial Institutions (Recovery of Finances) Ordinance, 2001, if there were substantial questions of law and fact which had been raised by a borrower-defendant.

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

----S. 10---Recovery suit filed by Bank against borrower/defendant---Leave to defend suit, grant of---Scope---Principle of consistency and comity---Defendant/borrower had also filed a suit against the Bank prior to the recovery suit---Plea that when Bank was granted leave to defend in the suit filed by the borrower, then on the principle of consistency and comity and for the administration of justice, borrower was also entitled to leave to defend in the recovery suit filed by the Bank---Validity---Such rule was not an absolute rule to be followed in all cases regardless of the specific facts of the case.

Muhammd Khalid Butt v. United Bank Ltd. 2003 CLD 911 ref.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Syed Ali Zafar, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent.

Date of hearing: 12th February, 2014.

2014 S C M R 1059

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Amir Hani Muslim and Ejaz Afzal Khan, JJ

SHAHZADA MUHAMMAD ASLAM---Appellant

Versus

SOOFI WALI MUHAMMAD and others---Respondents

Civil Appeals Nos.977 and 978 of 2006, decided on 17th December, 2013.

(On appeal against the judgment dated 24-3-2005 passed by the Lahore High Court, Multan Bench in C.R. No.590 and Writ Petition No.591 of 2000)

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed]---

----Ss. 20 & 21---Civil Procedure Code (V of 1908), S. 12(2)---Evacuee property exchanged with local Muslim---Change in status of property from evacuee to non-evacuee--- Confirmation by Custodian, requirement of---Subject shop was initially owned by a non-Muslim---Plaintiff, who was a Muslim, exchanged his original shop with the subject shop by way of a registered exchange deed---After such exchange revenue authorities changed status of subject shop to non-evacuee property---Plaintiff and his step-mother/defendant entered into litigation in relation to subject shop, whereafter both parties entered into a compromise agreement by which plaintiff was declared the exclusive owner and suit was decreed as such---During pendency of such suit defendant, in defiance of the terms of the decree, filed an application for transfer of subject shop to her under a scheme, which was accepted by the Deputy Settlement Commissioner, and subject shop was transferred in the name of defendant---Defendant consequently entered into an agreement to sell the subject shop to the purported buyer---Revenue authorities in the mean-time set aside order of Deputy Settlement Commissioner, whereby subject shop was transferred to the defendant---Purported buyer filed suit for specific performance of agreement to sell with the defendant and also filed an application under S.12(2), C.P.C. against plaintiff alleging fraud and mis-representation---Held, since the date of exchange, plaintiff remained in possession of the subject shop and presently his successors/appellants were in its possession---Defendant never denied the fact that she was a party to the suits which were decreed in terms of compromise agreement and plaintiff was declared exclusive owner of the subject shop, nor at any point of time she ever produced and/or placed any material on record to establish that she was in physical possession of the subject shop when she made an application to Deputy Settlement Commissioner for transferring the same to her under a scheme---Under the said scheme, any applicant who sought allotment of property had to establish his possession over the property, but defendant was never in possession of the subject shop, therefore order of transfer of subject shop in favour of defendant was erroneous---Under the said scheme only evacuee properties could be disposed of, however status of subject shop changed from evacuee to non-evacuee when its non-Muslin owner exchanged it with the plaintiff, who was a Muslim---Such change in status of subject shop found support from the orders of the settlement authorities, wherein subject shop was deleted from different lists of evacuee properties published in the year 1960 and 1971---Defendant never challenged the compromise decree by which plaintiff became the exclusive owner of the subject shop---Confirmation by the Custodian in terms of Ss.20 & 21 of the Pakistan (Administration of Evacuee Property) Act, 1957 was not required in the present case, as the subject shop after coming in possession of plaintiff was extended the status of non-evacuee property by the competent authority---Revenue authorities had set aside order of Deputy Settlement Commissioner by which subject shop was unlawfully transferred to the defendant, and such finding was affirmed up to the Supreme Court---Since the transfer order of the subject shop in favour of defendant was not in accordance with law, consequently she could not have been transferred the subject shop and the sale agreement executed by her with the purported buyer was nullity in the eyes of law and no right could be conferred on the purported buyer to seek its enforcement against the plaintiff or his successors---Purported buyer could not have alleged fraud or misrepresentation against plaintiff or his successors through an application under S.12(2), C.P.C. for a transaction which took place prior to the extension of the sale agreement---Compromise decree was passed on 29-4-1980 whereas defendant claimed to have been transferred the subject shop on 25-1-1978 and the sale agreement was executed on 8-7-1978, therefore, the application of the purported buyer under S. 12(2), C.P.C. was liable to be dismissed on such score alone---Appeal was allowed accordingly.

Qutub Ali v. Custodian, Evacuee Property, Lahore PLD 1964 SC 58 and Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451 distinguished.

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

----S. 12(2)---Bar to further suit---Application under S. 12(2), C.P.C., fling of---Grounds---Such an application could only be made on the ground of fraud or mis-representation or if an order or decree was passed by a court lacking jurisdiction.

Mian Allah Nawaz, Advocate Supreme Court for Appellant.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondents.

Date of hearing: 17th December, 2013.

2014 S C M R 1147

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Nasir-ul-Mulk, Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Ejaz Afzal Khan, JJ

MUHAMMAD ASLAM AWAN, ADVOCATE SUPREME COURT---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.9 of 2014, decided on 6th May, 2014.

(Constitution Petition under Article 184 of the Constitution regarding seniority of the Judges of Lahore High Court, Lahore)

Constitution of Pakistan---

----Arts. 193, 197 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding inter se seniority of the Judges of the (Lahore) High Court---Inter se seniority of Judges of the High Court---Principles---Inter se seniority of Judges of a High Court shall reckon from the order and date of their appointment as Additional Judges of that Court---Inter se seniority of Additional Judges of a High Court appointed vide the same order and date shall reckon from their seniority in age---If appointment of two or more service candidates was simultaneously made with that of the candidates from the Bar, the Judges from service shall retain their existing seniority in the department regardless of their age, though that would be the determining factor in respect of their seniority vis-a-vis the candidates from the Bar---Supreme Court observed that such principle had consistently been followed without exception ever-since the establishment of the High Courts in the country and was even otherwise in accord with the equitable dispensation of justice---Constitutional petition was dismissed accordingly.

Zaka ur Rehman, Advocate Supreme Court for Petitioner.

Salman Aslam Butt, Attorney-General, Kh. Saeed uz Zafar, Additional Attorney-General, Sajid Ilyas Bhatti, Deputy Attorney-General and Waqar Rana, Advocate Supreme Court, Consultant to Attorney-General on Court Notice.

Date of hearing: 6th May, 2014.

2014 S C M R 1149

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Gulzar Ahmed and Muhammad Ather Saeed, JJ

AKHTAR GHORI and others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Civil Review Petitions Nos.17-K, 18-K and 19-K of 2012, decided on 7th February, 2014.

(For review of the judgment dated 14-6-2012 of this Court passed in Civil Petition No.769-K of 2011)

Sindh Civil Service (Regularization of Ad hoc Appointments) Act (XIX of 1994)---

----S. 3---Sindh Public Service Commission (Functions) Rules, 1990, R.5---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Regularization of ad hoc appointments---Determination---Review petitioners claimed that they were initially regularly appointed in year, 1991, whereas respondents were appointed in year, 1992---Validity---Finding and observation of Supreme Court in its judgment under review should not have been given without examining notifications of appointments of review petitioners issued in year, 1991 and relevant provisions of Sindh Civil Service (Regularization of Ad hoc Appointments) Act, 1994---To arrive at valid conclusion that appointment order of year, 1991, could not be considered ad hoc appointments of respondents were regularized in year, 1994---Procedure prescribed in Sindh Civil Service (Regularization of Ad hoc Appointments) Act, 1994, also led to the conclusion that a procedure was prescribed therein for regularization of ad hoc employees which had to be followed and only thereafter ad hoc employees could be regularized---No such procedure was followed in cases of review petitioners to regularize their service and, therefore, assumption was that competent authority might have considered them to be regular employees from year, 1991---Supreme Court recalled its earlier judgment and fixed main petition for rehearing---Review petition was allowed.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Ajmal Hassan Khan and another v. Government of Sindh and others 2012 SCMR 860; Nazeer Ahmed Dhoon v. Government of Sindh and others 1996 SCMR 1547; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 ref.

Yawar Farooqi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners (in C.R.Ps. Nos.17-K and 18-K of 2012).

Ansari Abdul Latif, Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioners (in C.R.P. No. 19-K of 2012).

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent No.4.

Adnan Karim, Additional A.-G. Sindh on Court's Notice.

Date of hearing: 2nd January, 2014.

2014 S C M R 1155

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

IQRAR HUSSAIN and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.380 of 2012, decided on 24th April, 2014.

(On appeal from the judgment dated 20-1-2011 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Criminal Appeal 125-J of 2010)

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

----Ss. 302 & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-e-amd---Reappraisal of evidence---Compromise between parties---Compounding of right of "Qisas" by legal heirs of the deceased--- Offence not constituting "fasad-fil-arz"---Accused were convicted and sentenced for murder of deceased---During pendency of appeal before the High Court, compromise was effected between the parties, which was duly verified to be genuine by the Trial Court---High Court, however held that present case was of the nature which fell within the definition of fasad-fil-arz and because the accused acted in a brutal manner, the crime committed was outrageous to public conscious, therefore, compounding right of "Qisas" by the 'walis' would not completely exonerate the accused nor could they go without any punishment---High Court convicted the accused under S.311, P.P.C. despite the compromise effected between the parties---Validity---Section 311, P.P.C. was attracted in cases punishable with "Qisas" and not to cases punishable under "Ta'azir"---Section 302, P.P.C. was compoundable in view of provisions of S. 345, Cr.P.C.---Accused entered into a genuine compromise with the complainant/legal heirs of deceased---No clear evidence was available to constitute the offence involving the element/mischief of fasad-fil-arz, thus the High Court was not justified in law to convert the punishment of the accused to one under S. 311, P.P.C instead of acquitting them on the basis of compromise---High Court had committed a legal error in convicting and sentencing the accused for crime under S. 311, P.P.C., which caused serious miscarriage of justice---Appeal was allowed on the basis of compromise, and accused were acquitted of the charge levelled against them.

Khan Muhammad v. The State 2005 SCMR 599 ref.

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

----Ss. 302 & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-e-amd---Compromise between parties---Compounding of right of "Qisas" by legal heirs of the deceased---Offence not constituting "fasad-fil-arz"---Once a genuine compromise was effected between the parties and the legal heirs of the deceased were compensated and when no clear case of offence constituting "fasad-fil-arz" was made out, then on acceptance of the compromise, the accused was entitled to acquittal, on such ground alone---Illustration.

Mrs. Shahnaz Zafar, Advocate Supreme Court for Appellant No.1.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant No.2.

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

Date of hearing: 24th April, 2014.

2014 S C M R 1159

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

HASSAN AHMEDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.2-K of 2012, decided on 24th February, 2014.

(On appeal from the judgment dated 19-7-2010 in Criminal Appeal No.169 of 2010 passed by the High Court of Sindh at Karachi)

Penal Code (XLV of 1860)---

----Ss. 409, 468, 471 & 477-A---Criminal Procedure Code (V of 1898), S. 510---Criminal breach of trust by public servant, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts---Reappraisal of evidence---Sentence and fine, reduction in---Hand Writing Expert not summoned for cross-examination---Effect---Report of expert going unchallenged---Allegation against accused was that while serving as Manager of a Bank he committed fraud by authorizing transfer of an amount into an account using a cheque containing forged signatures and for such purpose he also sent his signed advice to the Head Office of the Bank for clearing the cheque---Trial Court convicted accused under Ss. 409, 468, 471 & 477-A, P.P.C. and sentenced him to 7 years' imprisonment along with a fine of Rs.52,00,000---Appeal filed by accused before the High Court was also dismissed--- Plea of accused that advice sent to the Head office of the bank was not signed by him and bore forged signatures; that despite the fact that he reported the fraud to the Federal Investigation Agency (FIA), case was registered against him and he was involved in the fraudulent transaction, and that report of Handwriting Expert was not produced before the Trial Court---Validity---Accused was the Manager of the Bank at the time of the transaction in question---An officer of the bank, who appeared as witness, stated that advice sent to the Head Office of the Bank was signed by the accused, and during her cross-examination no suggestion was put to her that the accused had not put his signatures on the advice and that the signatures were forged---Advice sent by accused could not have been sent without his signatures---Report of Handwriting Expert showed that signatures on the advice did belong to the accused---Such report was admissible in evidence but the accused did not file any application for summoning the Handwriting Expert, thus the report had gone unchallenged---Accused had filed complaint before the FIA to brush aside the real issue and to save his own skin---Conviction of accused under Ss. 409, 468, 471 & 477-A, P.P.C. was maintained but keeping in view the fact that he had already served out more than 3-1/2 years' imprisonment and was also dismissed from service, his sentence was converted to that already undergone by him and fine was reduced to Rs. 30,00,000---Appeal was dismissed accordingly.

Khaleeq Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant along with Appellant in person.

Syed Mohsin Imam, D.A.-G. for the State.

Date of hearing: 24th February, 2014.

2014 S C M R 1165

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Mushir Alam, JJ

RIAZ MIAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.3-K and 46-K of 2013, decided on 12th November, 2013.

(Against judgment dated 5-3-2013 of High Court of Sindh, Circuit Court, Hyderabad, passed in Criminal Appeals Nos.265, 304 and Criminal Revision No.315 of 2010)

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

----S. 9(c)---Possession and smuggling of narcotic---Reappraisal of evidence---Narcotic found in a bus---Knowledge of presence of narcotic in the bus---Driver, co-driver and conductor of the bus, liability of---Joint possession of narcotic---Scope---Charas weighing 420 kilograms and opium weighing 17 kilograms was recovered form boxes placed on the top of a bus---Owner, driver, co-driver and conductor of the bus were convicted under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life---Validity---Owner of the bus (principal accused), who was present in the same, provided police with the keys to the boxes, wherein narcotic had been hidden---When the owner of the bus was riding the bus and star witness of recovery had stated that baggage boxes had been booked by Adda (coach station) manager, it could not be said that under the given facts and circumstances, there was any material on record to show that baggage boxes were either kept on the roof of the bus by the cleaner and/or any of the drivers to attribute knowledge of transportation of huge quantity of narcotic---Prosecution was unable to point to any piece of incriminating evidence against the driver, co-driver and conductor of the bus to saddle them with knowledge that they were privy to commission of the subject crime---Nowhere in the F.I.R. it had been mentioned that recovered narcotic was in the joint possession of the driver, co-driver and conductor of the bus, nor in the charge-sheet they were saddled with joint possession of narcotic---Conviction and sentence recorded against driver, co-driver and conductor of the bus were set aside and they were acquitted of the charge---Appeal was allowed accordingly.

Muhammad Noor v. The State 2010 SCMR 927 ref.

Ilam Din Khattak, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellants.

Habib Ahmed, Special Prosecutor, ANF and M. Aslam Butt, D.A.-G. for the State.

Date of hearing: 12th November, 2013.

2014 S C M R 1169

[Supreme Court of Pakistan]

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

MUHAMMAD SHEHZAD ZAHEER---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others---Respondents

Civil Appeal No.708 of 2009 out of Civil Petition No.507 of 2008, decided on 6th March, 2014.

(On appeal from the judgment dated 31-1-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.345(K)CS/2001)

Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 9---Constitution of Pakistan, Art. 13---Procedure of inquiry against government servants working on deputation outside their department or service to which they belong---Reinstatement in service due to procedural flaws in conducting inquiry---Whether such reinstatement amounted to exoneration---Double jeopardy---Scope---Appellant joined government service in Commerce and Trade Group (parent department/lending authority), however he was transferred to Central Board of Revenue ("borrowing authority"), by whom he was posted as Assistant Commissioner, income tax---Appellant while serving as Assistant Commissioner was accused of extorting illegal gratification from tax payers---Inquiry was conducted by the borrowing authority and appellant was found guilty of misconduct and corruption---Borrowing authority dismissed appellant from service under S. 9 of Government Servants (Efficiency and Discipline) Rules, 1973 but later on he was reinstated in service for the reason that he had been removed without following certain conditions laid down under S. 9 of Government Servants (Efficiency and Discipline) Rules, 1973---Appellant was retransferred/sent back to his parent department i.e. lending authority---Subsequently parent department of appellant issued him a show cause notice based on the previous allegations of extorting illegal gratification, and removed him from service---Contention of appellant that he had been subjected to double jeopardy as borrowing authority removed him from service on allegations of extorting illegal gratification, and then his dismissal order was set aside and he was reinstated in service, but on the basis of same allegations a show cause notice was issued by the parent department and he was once again dismissed from service; that parent department had been directed by Establishment Division to conduct its own fresh inquiry, but same was not done and instead he was dismissed from service on basis of earlier inquiry conducted by the borrowing authority---Validity---Section 9 of Government Servants (Efficiency and Discipline) Rules, 1973 (as it stood before its amendment in the year 2001) provided that borrowing authority could take action against an officer of the lending authority by initiating proceedings against him under the Rules subject to certain conditions---Borrowing authority, in the present case, took action against the appellant without fulfilling the said conditions and therefore, appellant was reinstated into service---Appellant was reinstated into service not because he had been exonerated from the allegations but because there were certain procedural flaws in the procedure adopted for his dismissal, therefore contention regarding double jeopardy was without weight---After reinstatement by borrowing authority appellant was sent back to his parent department/lending authority and entire material on basis of which appellant was removed was sent to the parent department---Upon appellant's retransfer to his parent department, Establishment Division had issued a direction to the parent department to conduct fresh disciplinary proceedings against appellant from the stage the borrowing authority was required to transmit to the lending authority the records of proceedings, which included the inquiry already conducted, therefore contention that entire disciplinary proceedings including inquiry had to be conducted afresh was without force---Proceedings against appellant had been conducted in accordance with S. 9 of Government Servants (Efficiency and Discipline) Rules, 1973, and principles of natural justice had been followed and the appellant had been provided opportunities to reply to the show cause notices and statements of allegations at both stages and also given a chance of personal hearing---Appeal was dismissed accordingly.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Sajid Ilyas Bhatti, Deputy Attorney-General, Omar Hameed, Joint Secretary M/o Commerce, Fahad Raza, Section Officer M/o Commerce and Rana Bilal, Section Officer M/o Commerce for Respondents Nos.1 and 3.

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

Date of hearing: 6th March, 2014.

2014 S C M R 1178

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ

AZMAT ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.32 of 2010, decided on 7th April, 2014.

(Against the judgment dated 16-9-2009 passed by the Lahore High Court, Lahore in Criminal Appeal No.232-J of 2007)

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

----Ss. 302(b) & (c)---Qatl-e-amd---Reappraisal of evidence---Conviction under S. 302(b), P.P.C. converted into S. 302(c), P.P.C.---Sentence, reduction in---Sudden fight/quarrel---Lack of premeditation and ill-will---Single knife blow---Effect---Accused allegedly caused fatal knife injuries to his deceased-brother due to a sudden quarrel between them---Accused was convicted under S. 302(b), P.P.C. and was sentenced to 25 years imprisonment along with a fine of Rs. 100,000---Validity---Perusal of F.I.R., statements of eye-witnesses and findings of courts below clearly showed that there was no background of any ill-will or bitterness between the accused and his deceased-brother---Incident in issue had erupted all of a sudden without any premeditation whatsoever---Medical evidence showed that injuries on the body of deceased could be the result of one knife blow---Present case was one of sudden quarrel and no undue advantage had been taken by the accused nor had he acted in a brutal or unusual manner---Such factors squarely attracted Exception 4 contained in erstwhile provisions of S.300, P.P.C., thus case against accused fell within the purview of provisions of S. 302(c), P.P.C.---Conviction of accused under S.302(b), P.P.C. was converted into S. 302(c), P.P.C., and consequently his sentence was reduced from rigorous imprisonment for 25 years to rigorous imprisonment for 10 years---Fine imposed on accused was unwarranted, because Ss. 302(b) & (c), P.P.C did not contemplate any such sentence---Supreme Court directed that instead of a fine, accused should pay a sum of Rs. 50,000 to the heirs of deceased by way of compensation under S. 544-A, Cr.P.C.---Appeal was disposed of accordingly.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----Ss. 300 & 302(c)---Qatl-e-amd---Sentence---Case falling within the exceptions contained in erstwhile provisions of S. 300, P.P.C.---Effect---Such case would attract provisions of S. 302(c), P.P.C. (for purposes of sentence).

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

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

----Ss. 302(b) & 302(c)---Qatl-e-amd---Sentence---Imposing a (monetary) fine on accused---Legality---Sections 302(b) & (c), P.P.C. did not contemplate any sentence of imposing a fine on accused---Illustration.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 7th April, 2014.

2014 S C M R 1181

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Gulzar Ahmed, JJ

RAB NAWAZ and others---Appellants

Versus

GHULAM RASUL---Respondent

C.A. No.2195 of 2006, decided on 21st February, 2014.

(On appeal against the judgment dated 11-11-2002 passed by the Lahore High Court, Lahore in C.R. No.2275 of 1995)

(a) Islamic Law---

----Gift---Deathbed gift---Proof---Donor being of very old age and having unsound mind---Donor living at mercy of donee---Undue influence of donee---Lack of possession of donee--Effect---Donee allegedly gifted disputed property to one of his sons/purported donee at the exclusion of others---At the time of making gift donee was 92/93 years old, meaning thereby that he was fairly old at the relevant time---Witnesses in their evidence stated that the donor did not enjoy sound mental health at the time of making gift, and such evidence went unquestioned and thus remained unshaken---Such evidence appeared to be quite credible when considered in light of the age of the donor and other attending circumstances---Element of undue influence of donee could not be ruled out when the donor being old, infirm and incapacitated was living at the mercy of the donee---Alleged donee made contradictory statements regarding delivery of possession of disputed property to him and could not be said to have discharged the burden of proof to prove all the essentials of a gift, therefore no valid gift was ever made in his favour---Appeal was allowed accordingly.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 and Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28 distinguished.

(b) Islamic Law---

----Gift---Mental health of donor---Relevance---Evidence regarding mental health of donor could devastate the very basis of a gift.

(c) Islamic Law---

----Gift---Validity of gift challenged---Burden of proof---When a gift was challenged, the burden of proof lay on the donee to prove that all essentials of the gift were fulfilled.

Mian Dilawar Mahmood, Senior Advocate Supreme Court for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent.

Date of hearing: 21st February, 2014.

2014 S C M R 1187

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

PROVINCE OF PUNJAB through A.D. Fisheries Sialkot---Petitioner

Versus

Rana ABDUL HAMEED and others---Respondents

Civil Petition No.610-L of 2011, decided on 1st April, 2014.

(Against the order dated 3-2-2011 passed by the Lahore High Court in W.P. No.6485 of 2007)

Land Acquisition Act (I of 1894)---

----Ss. 4 & 17---Land acquisition proceedings---Revenue department and forums, jurisdiction of---Revenue hierarchy did not feature anywhere in the land acquisition proceedings---No court /forum within the revenue hierarchy could, therefore, set aside the acquisition of land or orders passed including notifications under Ss. 4 & 17 of Land Acquisition Act, 1894.

Shahid Mubeen, Additional A.-G. and Mrs. Azeem Zia, Assistant Director, Fisheries for Petitioner.

Jarirullah Khan, Advocate Supreme Court for Respondent No.1 along with Respondent in person.

Date of hearing: 1st April, 2014.

2014 S C M R 1189

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Amir Hani Muslim, JJ

PROVINCE OF SINDH and others---Appellants

Versus

GHULAM FAREED and others---Respondents

Civil Appeals Nos.207-K to 249-K of 2013, decided on 7th February, 2014.

(Against judgments dated 1-8-2013 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 271 to 275 of 2012, 1 to 8, 27 to 42, 45 to 52 of 2013 and judgment dated 17-9-2013 passed by Sindh Service Tribunal in Appeals Nos. 75 to 80 of 2013)

(a) Sindh Service Tribunal Act (XV of 1973)---

----S. 6-A---Limitation Act (IX of 1908), S. 3---Appeal against termination order filed before Sindh Service Tribunal---Limitation---Termination order passed by an officer not competent in law to pass such an order---Effect---Such termination order would be void and without lawful authority---Consequently neither bar of limitation would be attracted nor period of limitation would run against such order---Appeal was dismissed accordingly.

Furqan Habib and others v. Government of Pakistan and others 2006 SCMR 460 distinguished.

(b) Sindh Civil Servants Act (XIV of 1973)---

----S. 9---Sindh Civil Servants (Appointment, Promotion And Transfer) Rules, 1973, R. 8-A---Appointment of a civil servant on a higher grade on "Own Pay and Scale Basis" (OPS)---Legality---Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion And Transfer) Rules, 1973 did not contain any provision which could authorize the Government or competent authority to appoint any officer on a higher grade on OPS basis---Any appointment of such nature, that too of a junior officer would cause heart burning of senior officers within the cadre and/or department---Practice of appointment on OPS basis had always been discouraged by the Supreme Court, as it did not have any sanction of law, besides it impinged the self-respect and dignity of civil servants who were forced to work under their rapidly and unduly appointed fellow junior officers---Allowing such discretion to be vested in the competent authority would offend valuable rights of meritorious civil servants besides blocking promotions of deserving officers.

(c) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 8-A---Appointment to higher grade on acting charge basis---Nature and scope---Appointment of an officer of a lower scale on a higher post on current charge basis was made as a stop-gap arrangement and should not under any circumstance, last for more than 6 months---Acting charge appointment could neither be construed to be an appointment by promotion on regular basis for any purpose including seniority, nor it conferred any vested right for regular appointment---Appointment on current charge basis was purely temporary in nature or a stop-gap arrangement, which remained operative for short duration until regular appointment was made against the post.

Muhammad Sawar Khan, A.A.-G. Sindh, Adnan Karim Additional A.-G. Sindh, Jalaluddin Additional Secretary, Education and Abdul Saeed Khan Ghouri, Advocate-on-Record for Appellants.

Respondents in person

Ghulam Fareed (in C. A. No.207-K of 2013).

Shakeel Ahmed (in C. A. No.208-K of 2013).

Waqar Ahmed (in C. A. No.210-K of 2013).

Ghulam Ali (in C. A. No.211-K of 2013).

Atta Muhammad (in C. A. No.212-K of 2013).

Khalil Ahmed (in C. A. No.213-K of 2013).

Ghulam Mustafa (in C. A. No.214-K of 2013).

Imdad Ali (in C. A. No.215-K of 2013).

Saphio (in C. A. No.216-K of 2013).

Abdul Majeed (in C. A. No.217-K of 2013).

Wali Muhammad (in C. A. No.218-K of 2013).

Wajid Ali (in C. A. No.219-K of 2013).

Hussain Bahleem (in C. A. No.220-K of 2013).

Sajjid Ali (in C. A. No.221-K of 2013).

Anwar Ali (in C. A. No.222-K of 2013).

Feroz Ahmed (in C. A. No.223-K of 2013).

Ayaz Ali (in C. A. No.224-K of 2013).

Zakir Hussain Sahito (in C. A. No.225-K of 2013).

Muhammad Hayat (in C. A. No.226-K of 2013).

Shakil Ahmed Khauharo (in C. A. No.230-K of 2013).

Fakir Muhammad (in C. A. No.231-K of 2013).

Afzal Ali Pathan (in C. A. No.232-K of 2013).

Qamber Ali Jamro (in C. A. No.233-K of 2013).

Nisar Ahmed (in C. A. No.234-K of 2013).

Syed Morial Shah (in C. A. No.235-K of 2013).

Ahmed Ali (in C. A. No.236-K of 2013).

Roshan Ali (in C. A. No.237-K of 2013).

Muhammad Ali (in C. A. No.240-K of 2013).

Abdul Qadir (in C. A. No.241-K of 2013).

Izhar Ali (in C. A. No.243-K of 2013).

Shabir Ahmed (in C. A. No.244-K of 2013).

Ashique Hussain (in C. A. No.245-K of 2013).

Haq Nawaz (in C. A. No.247-K of 2013).

Date of hearing: 7th February, 2014.

2014 S C M R 1197

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ

Mst. SHAZIA PARVEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.51 of 2010, decided on 7th April, 2014.

(Against the judgment dated 21-7-2009 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.316-J of 2006)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd---Reappraisal of evidence---Benefit of doubt---Chance eye-witnesses closely related to the deceased---Non-mentioning of source of light---Medical evidence contradicting ocular account of witnesses---Effect---Accused-female was convicted under S.302(b), P.P.C. for murdering her husband/deceased, and was sentenced to imprisonment for life---Validity---Incident took place inside the house at about 10-30 p.m., but no source of light at the spot had been disclosed or shown anywhere on the record---Prosecution eye-witnesses were closely related to the deceased and were admittedly chance witnesses who had failed to bring anything on record to establish the stated reason for their availability near the deceased at the time of the incident---Such related witnesses failed to receive any independent corroboration inasmuch as there was no independent evidence produced regarding the alleged motive---Alleged recovery of rope was legally inconsequential---Medical evidence had gone a long way in contradicting the eye-witnesses---Duration of injuries and death recorded by the doctor in the post-mortem examination report rendered the time of death alleged by the eye-witnesses quite doubtful---Stomach contents (of deceased) belied the eye-witnesses regarding time of occurrence---Negative report of chemical examiner showed that no poison or intoxicant had been detected inside the body of the deceased which squarely contradicted the eye-witnesses---Prosecution failed to prove its case against accused beyond reasonable doubt---Conviction and sentence of accused recorded and upheld by courts below was set aside and she was acquitted of the charge by extending her benefit of doubt---Appeal was allowed accordingly.

Muhammad Zaman Bhatti, Advocate-on-Record for Appellant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 7th April, 2014.

2014 S C M R 1199

[Supreme Court of Pakistan]

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

QAISER ZAMAN---Appellant

Versus

FEDERAL BOARD OF REVENUE, ISLAMABAD and others---Respondents

Civil Appeal No.962 of 2012, decided on 9th April, 2014.

(On appeal against order dated 28-5-2011 of the Federal Service Tribunal, Islamabad, passed in Appeal No.525(R) CS/2010)

(a) Civil service---

----Resignation from Government service, process of---Delay by concerned officials in approving resignation---Resignation of civil servant not processed by concerned officials for 2-1/2 years and instead issuing him a show notice for absence from duty, and consequently dismissing him from service---Legality---Income tax officer (appellant) applied for leave to pursue further studies---Competent authority did not sanction the leave---Appellant tendered his resignation from service on 31-3-2006, which remained unprocessed---On 13-11-2008 a show cause notice was issued to the appellant on the ground of his absence from duty under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Appellant submitted his reply to the show cause notice, but no response was received by him---On 17-1-2009 appellant received a notification entailing penalty of his dismissal from service---Departmental appeal filed by appellant against his dismissal from service was also dismissed as time barred---Federal Service Tribunal also dismissed appellant's appeal as being time barred---Plea of department that resignation of appellant could not be processed in time as his file had been misplaced---Validity---Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time---Department could not justify issuance of show cause notice to the appellant after inordinate delay of 2-1/2 years---After tendering his resignation case of appellant was not processed for 2-1/2 years on the ground that his personal file went missing---Department instead of processing the case of resignation of appellant opted to proceed against him departmentally for absence of duty---Was not understandable as to how the department could sit over the resignation once it was tendered---In case the personal file of the appellant went missing the head of the department should have ordered enquiry and should have proceeded against the delinquent officers found responsible for misplacing the personal file of the appellant---Supreme Court directed Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of civil servants should be processed immediately and the concerned civil servant should also be informed about its fate forthwith as per the rules; that delinquent officers/officials who caused delay in processing resignation cases should be made accountable and proceeded against departmentally---Appeal was allowed accordingly and orders passed by departmental authority and Federal Service Tribunal were set aside.

(b) Civil service---

----Resignation from Government service, approval of---Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time.

Ch. Abdul Rab, Advocate Supreme Court for Appellant.

M.D. Shehzad Feroz, Advocate Supreme Court for Respondents Nos.1 and 2.

Ibrar Ahmed, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 9th April, 2014.

2014 S C M R 1203

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

REHMATULLAH KHAN through LRs---Appellant

Versus

SUPERINTENDENT, CUSTOMS and others---Respondents

Civil Appeal No.1328 of 2007, decided on 22nd January, 2014.

(Against judgment dated 15-2-2007 of Peshawar High Court, D.I. Khan Bench, passed in R.F.A. No.4 of 2005)

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Suit for recovery of money---Purported lease agreement between plaintiffs and customs/revenue authorities---Proof---Documents relating to internal correspondence between customs and revenue authorities, reliance on---Scope---Plaintiffs alleged that there was a lease agreement between them and revenue authorities, and that certain construction and modifications were also made to the proposed site on oral direction of customs officials---Validity---Plaintiffs alleged an oral agreement between themselves and revenue authorities---Counsel for plaintiffs referred to correspondence between an official of customs and revenue authority, but such correspondence was of no help to the plaintiffs, being internal to the department through which, the customs official solicited advice and approval of higher authorities---Counsel for plaintiffs also referred to a document which had not been signed by any person on behalf of the revenue authority---Plaintiffs conceded that concerned official of revenue authority or other departmental functionaries had not signed the proposed lease agreement---Plaintiffs should have ensured that there was an agreement in place before they made any construction/modifications on the property in question---Appeal was dismissed accordingly.

Shahnawaz Khan Sikandvi, Advocate Supreme Court for Appellant.

M. Bilal, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 22nd January, 2014.

2014 S C M R 1205

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ijaz Ahmed Chaudhry, JJ

SAADULLAH and others---Appellants

Versus

Mst. GULBANDA and others---Respondents

Civil Appeal No.1202 of 2011, decided on 9th April, 2014.

(On appeal from order of Peshawar High Court, Peshawar dated 21-4-2011, passed in Civil Revision No.78 of 2009)

Islamic law---

----Inheritance---Person dying issueless---Opening of inheritance---Residuaries---Order of Succession---Full sisters taking precedence over consanguine brother---Deceased died issueless and left behind a mother, three sisters and a consanguine brother---Mother got 1/6th share from deceased's estate, while 2/3rd share devolved upon the three sisters---Remaining 1/6th share in estate of deceased was mutated in favour of consanguine brother---Legality---Real sisters were nearer in degree of relationship with the deceased compared to the consanguine brother under sunni law---Applying the doctrine of return (Radd) and rule of "exclusion", the three sisters of the deceased would not only inherit 2/3rd share, as sharers from the estate of their deceased-brother, having died issueless, but being nearer in the category of Residuaries, the remaining 1/6th share would also devolve upon them in such capacity---Consanguine brother, in the presence of real sisters, would not inherit anything from the estate as residuary---Appeal was dismissed accordingly.

Per Verse No.176 of Sura An-Nisa and Principles of Mahomedan Law by D.F. Mulla ref.

Sardar Muhammad Ashfaq Abbasi, Advocate Supreme Court for Appellants.

Mir Adam Khan, Advocate-on-Record for Respondents Nos.1 and 2.

Ex parte for Respondents Nos.3 to 12.

Date of hearing: 9th April, 2014.

2014 S C M R 1210

[Supreme Court of Pakistan]

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

TAHIR HUSSAIN and others---Appellants

Versus

ILYAS AHMAD and others---Respondents

Civil Appeal No.79 of 2013, decided on 13th March, 2014.

(On appeal against the judgment dated 15-10-2012 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.1803 of 2012)

(a) West Pakistan Urban Rent Restriction Ordinance (V of 1959)---

----Ss. 13 & 17---Civil Procedure Code (V of 1908), O.XXI, Rr.97 & 98---Ejectment of tenant---Execution of ejectment order---Executing Court, jurisdiction of---Scope---Objection petition against execution of ejectment order---Issues already decided by Rent Controller---Executing Court had limited jurisdiction---When order of ejectment was passed by Rent Controller, the Executing Court was bound to give effect to it and could not entertain objection petitions subsequently on the issues already decided by the Rent Controller nor could it entertain any claim of defendants to enlarge the scope of rent proceedings---Executing Court could not entertain any objection petitions on the basis of issues already decided by it nor could it consider objection petitions on the basis of issues pending in collateral proceedings before any other forum.

(b) West Pakistan Urban Rent Restriction Ordinance (V of 1959)---

----S. 13---Ejectment of tenant---Eviction order, interference in---Collateral proceedings---Ejectment order could not be interfered with by any civil court in collateral proceedings.

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

----Ss. 13 & 17---Civil Procedure Code (V of 1908), O.XXI, Rr.97 & 98---Ejectment of tenant---Execution of ejectment order---Executing Court, jurisdiction of---Scope---Objection petition against execution of ejectment order---Through objection petitions Executing Court could not allow introduction of issues which changed the complexion of execution proceedings to that of original rent proceedings---Illustration.

Gulzarin Kiyani, Senior Advocate Supreme Court for Appellants.

Muhammad Amir Butt, Advocate Supreme Court for Respondents Nos.1 to 29-A.

Date of hearing: 13th March, 2014.

2014 S C M R 1217

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

ELAHI BAKHSH through Legal Heirs and others---Appellants

Versus

MUHAMMAD IQBAL and another---Respondents

Civil Appeal No.1106 of 2007, decided on 10th April, 2014.

(On appeal from the judgment dated 7-2-2007 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No.128 of 1986)

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art.103---Right of pre-emption---Whether property sold or exchanged---Burden of proof---Oral statement of a party to an instrument varying or tending to vary its terms---Admissibility in evidence of such oral statement---Alleged exchange of land between "S" & "M" and defendants through registered exchange deed---Plaintiffs filed a suit for enforcement of their right of pre-emption, alleging therein that exchange of land in question was actually a sale and as such was pre-emptible---Suit of plaintiffs was decreed---Legality---Burden of proof was on plaintiffs to prove that transaction in question was a sale and not exchange---"S" and "M" stated in their evidence in court that their transaction with defendants was one of sale and not exchange---Such oral statements from "S" and "M" varied the terms of the deed that they had entered into with defendants---Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence (Art. 103 of Qanun-e-Shahadat, 1984), therefore, oral statements from "S" and "M" were inadmissible in evidence---Appeal was allowed accordingly and suit of plaintiffs was dismissed.

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

----Art. 103---Written agreement between parties---Oral statement of a party to such agreement varying or tending to vary its terms---Admissibility in evidence of such oral statement---Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence---Article 103 of Qanun-e-Shahadat, 1984 excluded oral statement between the parties to any instrument or their representatives---Rationale behind Art. 103 of Qanun-e-Shahadat, 1984 was that inferior evidence was excluded in the presence of superior evidence; that an agreement finding expression in writing was an outcome of deliberate and well thought out settlement, and that a party acknowledging a fact in writing was immune from mischief, failure and lapse of memory.

(c) Interpretation of document---

----Presumption of truth---Scope---Bare words could not dislodge the presumption of truth attached to a registered deed.

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

----S. 5---Right of pre-emption---Whether property sold or exchanged---Inequality between the quality and market value of properties so exchanged---Proof---Alleged exchange of land between "S" & "M" and defendants through registered exchange deed---Plaintiffs filed a suit for enforcement of their right of pre-emption, alleging therein that exchange of land in question was actually a sale and as such pre-emptible; that there was inequality between the quality and market value of properties, which showed that it was a sale and not an exchange---Suit of plaintiffs was decreed---Validity---Contention of plaintiffs regarding inequality between the quality and market value of properties so exchanged was pleaded before the fora below and even before the Supreme Court, but it was neither averred in the plaint nor any significant evidence was brought on the record to substantiate it---Evidence presented by Commissioner being one-sided did not deserve any consideration---Exchange of land between the parties could not be looked askance on such plea of inequality---Appeal was allowed accordingly and suit of plaintiffs was dismissed.

(e) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Finding of courts below based on no evidence or inadmissible evidence---Question of fact or law---Scope---Although the Supreme Court could not substitute its view for that of the first and second court of appeal on a question of fact, but where a view had been based on no evidence or an evidence which was inadmissible, the question surfacing for adjudication of the Supreme Court would not be one of fact but of law---Supreme Court being the court of ultimate jurisdiction had the powers to undo a finding thus rendered.

Gulzarin Kiyani, Senior Advocate Supreme Court for Appellants.

M. Munir Peracha, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondent No.2.

Date of hearing: 10th April, 2014.

2014 S C M R 1222

[Supreme Court of Pakistan]

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

Mst. ANWAR SULTANA through L.Rs.---Appellant

Versus

BANK AL-FALAH LTD. and others---Respondents

Civil Appeal No.449-L of 2013, decided on 13th March, 2014.

(On appeal against the judgment dated 15-9-2010 passed by the Lahore High Court, Lahore in E.F.A. No.351 of 2008)

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

----O. XXI, Rr. 89(1)(a) & (b) & S. 148---Limitation Act (IX of 1908), Art.166---Application by owner of property to set aside sale in execution of decree---Pre-requisites---Limitation period for filing such an application as well as the deposit in court---Rule 89 of O. XXI, C.P.C. required that two primary conditions relating to deposit must be fulfilled---Applicant must deposit in the court 5 % of the purchase money for payment to auction purchaser; he must also deposit amount specified in the proclamation of sale, less any amount received by the decree holder since date of proclamation of sale, for payment to the decree holder---Article 166 of the Limitation Act, 1908, required such an application as well as the deposit thereunder, both to be made within the period of 30 days from the date of sale---Deposit was a condition precedent to the entertainment of the application and the court could not extend time for deposit of the amounts under S.148, C.P.C.---Date of sale as used in R.89, O. XXI, C.P.C. related to the date on which property was knocked out to the highest bidder and not the date of confirmation---Where application under R.89(1)(a) & (b), of O.XXI, C.P.C. was made within 30 days from the date of sale but no deposit (in terms of the said rule) was made, which was a condition precedent to the entertainment of such an application, the Executing Court would neither be competent to entertain such an application nor empowered to extend time for depositing the amount specified under R.89, O. XXI, C.P.C.

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

----O. XXI, Rr. 89(1)(a) & (b)---Application to set aside sale on deposit--- Deposit to be made in court by judgment-debtor---Permission of Court---Applicant for depositing such amount did not need permission of the court as such amount was known to the judgment-debtor and was required to be deposited to establish his bona fide.

Ch. Amin Javed, Advocate Supreme Court for Appellant.

Mian Nasir Mehmood, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2 (L.Rs.).

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.3.

Ex parte for Respondents Nos.4 and 5.

Date of hearing: 13th March, 2014.

2014 S C M R 1227

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

ZAFAR IQBAL and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.491 of 2009, decided on 22nd October, 2013.

(On appeal from the order dated 4-6-2009, passed by the Lahore High Court, Lahore in M.R. No.676 of 2003 and Criminal Appeal No.1424 of 2003)

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

----S. 302---Qatl-e-amd---Evidence---Related witness---Principle---Mere relationship of prosecution witnesses with deceased cannot render their evidence unreliable unless it is established that they had motive to implicate accused falsely.

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

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Triple murder---False implication---Motive---Sentence, reduction in---Trial Court out of ten accused convicted five accused and sentenced them to death, while five accused were acquitted of the charge---Plea raised by accused was that due to enmity, complainant had falsely involved accused in the case---Validity---Two crime empties recovered from place of occurrence were fired from recovered .44 bore rifle and .8 mm bore rifle and that blood-stained earth and hatchet were stained with human blood---Rifle .7 mm was also recovered but no empty of the same was recovered from the place of occurrence---Sufficient corroboratory evidence had come on record to connect accused with commission of crime i.e. murder of three persons and Supreme Court disbelieved theory of conspiracy---Real motive as propounded in prosecution version was against one of the deceased, who had beaten one accused---Was not understandable as to why all accused having murdered the main person covered a long distance and murdered his two sons also---Something very obnoxious might have happened at place of occurrence of which neither prosecution had given any evidence nor the same had come out from the side of defence---Immediate circumstance or cause of happening of events, which culminated into murder of three persons altogether shrouded in mystery--- Sufficient extenuating circumstances existed on the basis of which accused could not be made liable to maximum punishment provided under S.302(b), P.P.C. and converted death sentence into imprisonment for life---Appeal was allowed partly.

Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Israr Ali v. The State 2007 SCMR 525; Haroon-ur-Rahman alias Noni and others v. The State 1994 SCMR 1155; Muhammad Yaqoob v. The State 2009 SCMR 1273; Khawand Bakhsh and others v. The State and others PLD 2000 SC 1 and Hasil Khan v. The State and others 2012 SCMR 1936 ref.

Ch. Muhammad Khalid Dogar, Advocate Supreme Court for Appellants.

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

Date of hearing: 28th May, 2013.

2014 S C M R 1263

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Gulzar Ahmed and Mushir Alam, JJ

Engineer MAJEED AHMED MEMON---Appellant

Versus

LIAQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES JAMSHORO and others---Respondents

Civil Appeal No.17-K of 2009, decided on 28th April, 2014.

(On appeal against the order dated 13-11-2008 passed by the Division Bench of High Court of Sindh at Karachi in C.P. No.D-1202 of 2008)

Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 8---Employment on probation---Allegation of corruption and malpractice---Issuance of show cause notice---Termination from service without a full inquiry and opportunity to accused employee to defend himself---Legality---Opportunity of personal hearing---Scope---Accused-civil servant was employed on probation at a university---Accused employee during his service was alleged to have made certain purchases for the University without proper tendering---Enquiry committee conducted its preliminary enquiry in which accused was neither associated or heard, and the allegations against him were prima facie found to be correct pursuant to which a show cause notice was issued to him---Accused submitted his reply to the show cause notice, denying the allegation---University authorities found reply submitted by accused as unsatisfactory and terminated his services with immediate effect and repatriated him to his parent department---Even though accused was a probationer, his services could not have been terminated without holding a full-fledged enquiry in which accused would have an opportunity to defend himself on the allegations made against him in the show-cause notice---Appeal was allowed and accused was reinstated in the service of the University with the direction that a regular fact finding enquiry shall be conducted by the University against accused within 30 days on the basis of the show cause notice, and if in such enquiry accused was exonerated then he shall be given back benefits etc. subject to adjustment from pay and salary which he had withdrawn elsewhere from the date of dismissal till date of reinstatement.

Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; Muhammad Siddique Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 and Zahoor Ahmed v. WAPDA 2001 SCMR 1566 rel.

Ansari Abdul Latif, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Ex part for Respondents Nos. 1 and 2.

Kamaluddin, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 28th April, 2014.

2014 S C M R 1268

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

A. QUTUBUDDIN KHAN---Appellant

Versus

CHEC MILLWALA DREDGING CO. (PVT.) LIMITED---Respondent

Civil Appeal No.319 of 2004, decided on 3rd April, 2014.

(On appeal from the judgment dated 19-3-2003, passed by the High Court of Sindh, Karachi, in H.C.A. No.311 of 2000)

Per Sh. Azmat Saeed, J.; Tassaduq Hussain Jillani, C.J., agreeing; Khilji Arif Hussain, J., disagreeing [Majority view]

(a) Arbitration Act (X of 1940)---

----Ss.17, 30 & 33---Limitation Act (IX of 1908), Art. 158---Arbitration award presented in court---Objections against arbitration award either not filed or if filed within the time prescribed by law---Effect---Power of court to decide whether to make such an award Rule of the Court---Scope---Powers vested in the court to make an award, the Rule of the Court were judicial in nature and not ministerial---Absence of objections to such an award did not absolve the court of its responsibility to examine the same---Even in the absence of objections to the arbitration award, the award may be set aside by the court and not made Rule of the Court if it was a nullity; or was prima facie illegal; or for any other reason it was not fit to be maintained; or suffered from an invalidity which was self-evident or apparent on the face of the record---Single Judge of High Court, in the present case, after concluding that objections filed by respondent-company were time barred, without conducting a judicial exercise of examining the award qua its validity, made the same Rule of the Court---Such an order was not sustainable in law---Supreme Court upheld judgment of Division Bench of High Court whereby case was remanded to Single Judge of High Court and directed that Single Judge in post-remand proceedings should decide whether to make the award Rule of the Court after examining as to whether the said award was a nullity or prima facie illegal or was not fit to be maintained or suffered from any other invalidity which was self-evident or apparent on the face of the record---Appeal was disposed of accordingly.

Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 and Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division 1992 SCMR 65 ref.

Per Khilji Arif Hussain, J.; disagreeing with Sh. Azmat Saeed, J.

(b) Arbitration Act (X of 1940)---

----Ss. 15, 16, 30 & 33---Arbitration award presented in court---Objections filed against award---Power of court to examine such an award and set it aside---Scope---While hearing objections and examining the award, the court could not sit as a court of appeal on the award rendered by the Arbitrator and substitute its own view for the one taken by the Arbitrator---Award of the Arbitrator who was chosen as judge of facts and of the law, between the parties, could not be set aside unless the error was apparent on the face of the award or from the award it could be inferred that Arbitrator had misconducted himself.

(c) Arbitration Act (X of 1940)---

----Ss. 17, 30 & 33---Arbitration award presented in court---Objections against arbitration award not filed---Effect---Power of Court to decide whether to make such an award Rule of the Court---Scope---Even if no objection under Ss. 30 & 33 of the Arbitration Act, 1940 had been filed, the court at the time of making award Rule of Court could see whether award suffered from any patent illegality---In exercise of power under S. 17 of the Arbitration Act, 1940, even if no application under Ss.30 & 33 of the said Act was filed by a party, the same did not absolve the court of its responsibility to see that the award did not suffer from any patent illegality necessitating either the setting aside of the award or its remission to the Arbitrator---While making an award rule of the court, in case parties had not filed objections, the court was not supposed to act in a mechanical manner, like post office and put its seal on it but had to look to the award and if patent illegality was found on face of it, court could remit the award or any matter referred to Arbitrator for reconsideration or set-aside the same---However, while doing so, the court would not try to find out patent irregularity, and only if any patent irregularities could be seen on the face of award/arbitration proceedings like the award was beyond the scope of reference or the agreement of arbitration was void agreement, or Arbitrator awarded damages on black marketing price, or award was given after superseding of the arbitration, etc., court could set aside the same.

Province of Punjab v. Shafique Ahmad PLD 1989 Lah. 26 ref.

(d) Interpretation of statutes---

----'General provision' and 'special provision' in a statute---Scope---General provision in a statute could not operate to control a specific (special) provision in the same statute.

Sher Ali Baz v. Secretary, Establishment Division PLD 1991 SC 143 and Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(e) Arbitration Act (X of 1940)---

----Ss. 17, 30 & 33---Award, setting aside of---Grounds---While exercising jurisdiction under S. 17 of the Arbitration Act, 1940, award could not be set aside on the grounds which fell under Ss. 30 & 33 of the same Act---Section 17 of the Arbitration Act, 1940 could neither be used as substitute of Ss. 30 & 33 of the Act nor given overriding effect, making Ss. 30 & 33 of the Act redundant/ meaningless.

Madan Lal v. Sunder Lal AIR 1967 SC 1233 and Devendra Singh v. Kalyan Singh AIR 1978 Rajasthan 134 ref.

(f) Arbitration Act (X of 1940)---

----Ss.17, 30 & 33---Limitation Act (IX of 1908), Art. 158---Arbitration award presented in court---Objections against arbitration award not filed within the time prescribed by law---Effect---Remanding matter of award to forum below 13 years after pronouncement of such award---Propriety---Denial of justice---Scope---Dispute between parties was referred to an Arbitrator who gave an award on 6-12-1997---Said award was set aside by consent of the parties on 13-8-1998---As per consent order, both the parties agreed to nominate their Arbitrators within 15 days from the date of the order---Admittedly, the respondent-company did not nominate his Arbitrator, and the Arbitrator nominated by the appellant, after giving notice to the parties, gave ex parte award on 11-11-1998---Evidence on record showed that findings of fact recorded by sole Arbitrator (appointed by appellant) could not be termed as patently illegal to set aside the award under S. 17 of Arbitration Act, 1940---Despite service of notice to respondent-company during different stages of the arbitration proceedings, it failed to appear before the sole Arbitrator---After sole Arbitrator filed its award in court, notice was issued to the respondent-company to file objections and admittedly despite service of notice, the respondent-company failed to file objections within 30 days from the date of service, as required under Art.158 of the Limitation Act, 1908 and ultimately objections were filed with a delay of 74 days---Presently, after 13 years of the arbitration award having been made, asking the parties again to go before the forum below (Single Judge of the High Court) would be tantamount to denial of justice---Appeal was allowed accordingly and judgment of Single Judge of High Court whereby award of sole Arbitrator was made Rule of the Court was upheld. [Minority view].

Ashiq Ali v. Mst. Zamir Fatima PLD 2004 SC 10 and Anwar Ahmad v. Mst. Nafis Bano 2005 SCMR 152 ref.

(g) Arbitration Act (X of 1940)---

----Ss. 13 & 29---Civil Procedure Code (V of 1908), S. 34---Interest Act (XXXII of 1839), S. 1---Arbitrator, powers of---Scope---Awarding interest prior to date of decree---Legality---Arbitrator could not award interest prior to date of decree, in the absence of any express or implied agreement between the parties, or on basis of mercantile usage and statutory provisions or on equitable grounds in a proper case---Section 34, C.P.C., which gave discretion to court to award interest from the date of suit or period prior to it, did not apply to arbitration proceedings---Likewise, the Interest Act, 1839 also did not confer power on the Arbitrator to award interest---Grant of interest from the date prior to award or from the date of award until payment of the amount due and payable, the Arbitrator could under no circumstances award interest for the period beyond the passing of the decree by the court in terms of award---Under S. 29 of the Arbitration Act, 1940, only the court and not the Arbitrator had discretion to order interest, from the date of the decree at such a rate as the court deemed reasonable---Grant of interest prior to date of award, in absence of an express or implied statutory provisions, or agreement between the parties, would be an error of law apparent on the face of award.

(h) Arbitration Act (X of 1940)---

----S. 13---Arbitrator, powers of---Scope---Arbitrator was not clothed with any power, which neither any law conferred upon him nor there was any such usage of trade having the force of law, nor any agreement between the parties conferring such power.

Nadeem Qutab, son of Appellant in person.

Bilal A. Kh. Advocate Supreme Court for Respondent.

Date of hearing: 22nd January, 2014.

2014 S C M R 1289

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Nasir-ul-Mulk, Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Ejaz Afzal Khan, JJ

MUHAMMAD ASLAM AWAN, ADVOCATE SUPREME COURT---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.9 of 2014, decided on 6th May, 2014.

(Constitution petition under Article 184 of the Constitution regarding seniority of the Judges of Lahore High Court, Lahore)

Per Tassaduq Hussain Jillani, CJ.

(a) Constitution of Pakistan---

----Arts. 175(3), 184(3) & 199 & Preamble---Independence of judiciary---Significance and effect---Pubic confidence---Enforcement of Fundamental Rights of the people---Judicial independence both of the individual Judge and of the Judiciary as an institution was essential so that those who brought their causes/cases before the Judges and the public in general had confidence that their cases would be decided justly and in accordance with law---Judicial independence was one of the foundational values of the Constitution which was based on trichotomy of powers in which the functions of each organ of the State had been constitutionally delineated---Fundamental Rights guaranteed under the Constitution could not be secured unless Judiciary was independent because the enforcement of said rights had been left to Judiciary in terms of Arts. 184(3) & 199 of the Constitution and the relevant law.

(b) Constitution of Pakistan---

----Arts. 193, 194, 197, 255(3) & 260(1)---Seniority of a Judge of the High Court---Computation of---Period of service as Additional Judge to be counted towards seniority---Qualification for a person to be appointed as Additional Judge (of the High Court) was the same (as that of a Permanent Judge of the High Court) provided under Art. 193 of the Constitution---Under Art. 260(1) of the Constitution, a 'Judge' in relation to a High Court included the Chief Justice of the Court and also "a person who is an Additional Judge of the Court"---Similar oath was prescribed for both the offices (Additional and Permanent Judge of the High Court) in terms of Art.194 of the Constitution and both were "deemed to have entered upon the office" on the day on which they made the oath (Article 255(3) of the Constitution)---Thus when an Additional Judge entered upon the office having taken oath in terms of Art. 194 of the Constitution and was later appointed as a Judge (under Article 193), his service in the office continued, there was no break in service and, therefore, the period spent as Additional Judge had to be counted towards his seniority while computing the period of service of a permanent Judge in the High Court.

Ghulam Jillani v. Mr. Justice Muhammad Gul 1978 SCMR 110; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Hira Singh and others v. Jai Singh and others AIR 1937 Allahabad 588; Federation of Pakistan v. Sindh High Court Bar Association PLD 2012 SC 1067 and PLD 2013 SC 829 ref.

(c) Constitution of Pakistan---

----Arts. 193, 194, 197, 255(3), 260(1) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding inter se seniority of the Judges of the High Courts---Inter se seniority of Additional and Permanent Judges of the High Court---Computation of---Criterion and principles---Constitutional convention---Scope---Inter se seniority of Judges of a High Court shall reckon from the order and date of their appointment as Additional Judges of that Court---Inter se seniority of Additional Judges of a High Court appointed vide the same order and date shall reckon from their seniority in age---If appointment of two or more (district judiciary) service candidates was simultaneously made with that of the candidates from the Bar, the service Judges shall retain their existing seniority in the department regardless of their age, though that would be the determining factor in respect of their seniority vis-a-vis the candidates from the Bar---Supreme Court observed that such mode and principle of determining inter se seniority of Judges of the High Court had been consistent in all the four Provinces, barring one time deviation when the Administration Committee of Sindh High Court followed a different course; that such mode was normative because it was more in accord with equity and constitutional intent reflected in various provisions of the Constitution, thus it had assumed the character of a constitutional convention---Constitutional petition was dismissed accordingly.

[1981] 2 SCR 753 (Supreme Court of Canada) and Professor W. Hogg (Constitutional Law of Canada, 1977) ref.

(d) Civil service---

----Civil servant---Seniority of---Reckoned from date of initial appointment---In service matters, while considering the seniority of civil servants, the seniority was reckoned from the date of initial appointment and not from the date of confirmation or regularization.

(e) Precedent---

----Administrative decision---Judicial decision---Administrative decision would not assume the character of a precedent to be followed but a judicial decision may assume such a character.

Jaswant Sugar Mills v. Kakshmi Chand AIR 1963 SC 677 ref.

Per Asif Saeed Khan Khosa, J.; agreeing with Tassaduq Hussain Jillani, CJ.

(f) Constitution---

----Constitution of a country was a living organism.

(g) Constitution---

----Words and concepts within a Constitution---Change in meaning through passage of time and changed circumstances---Original words of a Constitution did assume different meanings, the initial concepts envisaged therein did undergo metamorphosis and the earlier schemes contained in the same evolved and transformed into different mechanisms with passage of time, changed circumstances and sprouting requirements.

(h) Constitution of Pakistan---

----Art. 197---Additional Judge of the High Court---History of the concept and utility of the office of an Additional Judge of a High Court in the Indo-Pak subcontinent stated.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 ref.

(i) Constitution of Pakistan---

----Arts. 193, 194, 197, 255(3) & 260(1)---Additional Judge of the High Court---Office of---Appointment of Additional Judge of the High Court as Permanent Judge of such Court not an appointment to a new office but continuation in the same office of a Judge---Qualifications prescribed by the Constitution for an Additional Judge of a High Court were the same as those stipulated for a (Permanent) Judge of such Court---Process of appointment of an Additional Judge was the same as that of appointment of a (Permanent) Judge--- Constitution did not provide for a separate and different oath of office for an Additional Judge and before entering upon the said office an Additional Judge had to make the same oath which was prescribed by the Constitution for a (Permanent) Judge of a High Court---Said oath of office for an Additional Judge was prescribed by the Constitution itself and by virtue of the provisions of Art. 260(1) of the Constitution a "Judge" in relation to a High Court included an "Additional Judge" of that Court---Judge of a High Court was appointed in many stages and his appointment as an Additional Judge marked the first and initial stage and his final and formal appointment as a (Permanent) Judge was the culminating stage of such appointment---Additional Judge's subsequent appointment as a Judge was not an appointment to a new office but through such appointment his initial appointment as an Additional Judge matured and merged into the office of a Judge---Subsequent oath made by Additional Judge was nothing but in continuation of his earlier oath, particularly when the subsequent oath was the selfsame oath which he had already made before entering upon the office of an Additional Judge---By making the said oath as an Additional Judge he had already entered the office of a Judge and his subsequent oath as a (Permanent) Judge only reinforced and confirmed his position in that office.

(j) Constitution of Pakistan---

----Arts. 193, 194, 197, 255(3), 175A & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding inter se seniority of the Judges of the High Court---Seniority of a Judge of the High Court---Computation of---Seniority of a Judge of the High Court was to be reckoned with reference to his making of the first oath as an Additional Judge of such Court---Such was the spirit of the of the Constitution---Supreme Court observed that such mode of determining seniority of a Judge of a High Court was safer as it obviated the chances of tinkering or fiddling with the seniority of a Judge by the Judicial Commission or the Parliamentary Committee by delaying the matter of his nomination and confirmation as such or by the Federal Government by delaying issuance of the notification of appointment of an Additional Judge as a (Permanent) Judge for reasons which may be manufactured or contrived; that such mode of determination of seniority of a Judge of a High Court (provided in the present judgment) was likely to foster and advance the constitutional mandate regarding "fully" securing the independence of the judiciary---Constitutional petition was dismissed accordingly.

Zaka ur Rehman Awan, Advocate Supreme Court for Petitioner.

Salman Aslam Butt, Attorney-General, Taimur Khan, Consultant to Attorney-General and Sardar Dilnawaz Cheema, Consultant to Attorney-General on Courts Notice.

Dates of hearing: 5th and 6th May, 2014.

2014 S C M R 1334

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ

D.-G. A.N.F. RAWALPINDI and others---Appellants/Petitioners

Versus

MUNAWAR HUSSAIN MANJ and others---Respondents

Criminal Appeal No.112 of 2003 and Jail Petition No.170 of 2003, decided on 20th February, 2014.

(Against the judgment dated 28-1-2003 passed by the Lahore High Court, Lahore in Criminal Appeal No.1227 of 2001)

Supreme Court Rules, 1980---

----O. X---Short order passed by Supreme Court---Scope---Short order signed by majority of the Judges---Treated as final disposition of the matter---Short order passed by the Supreme Court had all the effects of a judgment of the Supreme Court, if such short order had been signed by all or a majority of the Judges hearing the matter, even if for some reason such order was not followed by a detailed judgment---When Judges of the Supreme Court hearing a matter signed the short order, then for all intents and purposes it had to be treated as a final disposition, and absence of any detailed judgment did not require rehearing of the same matter.

The State v. Asif Adil and others 1997 SCMR 209; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Dr. Agha Ijaz Ali Pathan v. The State 2010 SCMR 322 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants (in Criminal Appeal No.112 of 2003).

M. Zawar Shah, Advocate Supreme Court for Petitioner (in Jail Petition No.170 of 2003).

Imran-ul-Haq, Deputy Attorney-General for Pakistan for the Federation (in both cases).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.1 (in Criminal Appeal No.112 of 2003).

M. Zawar Shah, Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No.112 of 2003).

Respondents Nos.1 to 3 in person (in Criminal Appeal No.112 of 2003).

Date of hearing: 20th February, 2014.

2014 S C M R 1336

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

SECRETARY, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and 269 others---Appellants

Versus

M. ISMAIL TAYER and 269 others---Respondents

Civil Appeals Nos.971 to 1012, 1013 of 2012, C.M.As. Nos.5314, 1014 to 1017 of 2012, 289-L, 386-L to 401-L of 2013, 61 to 223, 274 of 2014 and Civil Petitions Nos.1040-L, 1049-L, 1070-L of 2013, 46-L to 58-L, 92-L to 94-L, 106-L, 213-L, 219-L to 225-L, 239-L, 257-L, 277-L, 293-L, 307-L to 315-L and 330-L of 2014, decided on 31st March, 2014.

(On appeal from the judgment dated 5-5-2011 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.773 of 2009 and the judgments/orders dated 17-1-2012, 17-11-2011, 27-2-2012, 17-1-2012, 2-2-2012, 17-1-2012, 23-4-2012, 21-11-2011, 31-5-2012, 8-10-2012, 1-11-2012, 22-10-2012, 30-10-2012, 1-11-2012, 16-10-2012, 1-11-2012, 13-12-2012, 18-12-2012, 24-12-2012, 14-12-2012, 10-7-2013, 31-7-2013, 30-1-2013, 15-1-2013, 22-1-2013, 16-1-2013, 4-2-2013, 8-1-2013, 15-1-2013, 2-5-2013, 24-5-2013, 22-5-2013, 10-6-2013, 28-5-2013, 28-6-2013, 3-7-2013, 25-6-2013, 25-6-2013, 28-6-2013, 12-8-2013, 19-6-2013, 30-7-2013, 10-4-2013, 9-9-2013, 10-9-2013, 18-9-2013, 10-9-2013, 19-9-2013, 20-9-2013, 17-9-2013, 16-9-2013, 15-1-2013, 16-9-2013, 21-10-2013, 26-9-2013, 27-9-2013, 30-9-2013, 19-9-2013, 30-9-2013, 3-10-2013, 4-10-2013, 1-10-2013, 24-9-2013, 26-9-2013, 27-9-2013, 30-9-2013, 1-10-2013, 7-10-2013, 14-10-2013, 23-10-2013, 7-10-2013, 24-10-2013, 10-10-2013, 21-10-2013, 28-10-2013, 29-10-2013, 30-10-2013, 2-10-2013, 21-10-2013, 4-10-2013, 14-10-2013, 31-10-2013, 21-10-2013, 22-10-2013, 23-10-2013, 24-10-2013, 7-10-2013, 28-10-2013, 31-10-2013, 30-10-2013, 4-11-2013, 6-11-2013, 13-12-2013, 24-5-2013, 17-5-2013, 2-5-2013, 11-11-2013, 12-11-2013, 13-11-2013, 15-1-2013, 18-11-2013, 29-11-2013, 19-11-2013, 20-11-2013, 20-11-2013, 4-11-2013, 4-11-2013, 7-11-2013, 20-11-2013, 18-11-2013, 17-12-2013, 19-12-2013, 17-11-2013, 23-12-2013, 26-12-2013, 19-12-2013, 17-12-2013, 23-12-2013, 20-11-2013, 19-12-2013 and 23-12-2013 of the Lahore High Court, Lahore/Bahawalpur Bench/Rawalpindi Bench/Multan Bench, passed in W.Ps. Nos.29579, 6293, 20379, 20380, 20383, 20385 to 20393, 21546, 21547, 21550, 25402, 25403, 20376, 20377, 20381, 20382, 20384, 20394, 21548, 21551, 20378, 21549 of 2011, I.C.A. No.50 of 2012, W.Ps. Nos.324, 326, 327 of 2012, 11141, 24765 of 2011, 325, 299, 1653, 1654, 1914, 679, 3521 of 2012, 23058 of 2011, 13248, 13249, 10644, 298, 8745, 8746, 26478, 25760, 8747, 17077, 27183, 24652, 29155, 29287, 30862 to 30867 of 2012, 1480, 19144, 1899 of 2013, 29536, 31347 of 2012, 859, 1942, 2264, 2265, 2589 of 2013, 539, 29593, 29332 of 2012, 1373, 5058, 5069, 5071, 5073, 5499, 5501 to 5503, 5561, 5866, 6660, 7817, 7818, 8062, 7822, 5504, 5070, 5562, 5500, 5505, 7820, 5072, 7819, 7821 of 2013, 8344 of 2011, 7489, 7899, 8671, 5661, 8038, 1372, 8837, 10973 to 10975, 14337, 13122, 13168, 3487, 3486 of 2013, 21301 of 2012, 14297, 15537, 15950 of 2011, 345, 4643, 7349, 8640, 11504 of 2012, 3216, 894, 1853, 2689, 3216, 8984, 4507, 3485, 17937 of 2013, 25742 of 2011, 5102 of 2012, 8122, 933, 21918, 22183, 17118, 20381, 22028, 22166, 22144, 23519, 23665, 23770, 23093, 22912, 29332, 22888, 6162, 14635, 24551, 24664, 24850, 23493, 24769, 25276, 25197, 25012, 24099, 24211, 24437, 24645, 24713, 24757, 24939, 24957, 25692, 26431, 26923, 25685, 3946, 26059, 26131 of 2013, 6035, 6044/2013/BWP, 26111, 22115, 24286, 25495, 25161, 22102, 22103, 23375, 24618, 24949, 24953, 25055, 25239, 25484, 25670, 25984, 26140, 26738, 27343, 27480, 27559, 27730, 25103, 21989, 25196, 25517, 26516, 26557, 26611, 26636, 27804, 23183, 23230, 23823, 25703, 26820, 19412, 19413, 26878, 27151, 25682, 27487, 27796, 27690, 28166, 28424, 2547, 1878, 12157, 5041, 28780, 28797, 28927, 29044, 29131 of 2013, 29332 of 2012, 29291, 29287, 29314, 29331, 29346, 29470, 29545, 28067, 28135, 11026, 13644, 20141, 27206, 30834, 21545, 27710, 27562, 29537, 26514, 10544, 27314, 26635, 10667, 30967, 28184, 28475, 28664, 28893, 29230, 29263, 29303, 29317 and 27622 of 2013)

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

----S. 18---Punjab Civil Services Pension Rules, 1963, Rr. 4.4, 8.1 & 8.12---Constitution of Pakistan, Arts. 25, 185 & 212---Pension---Commutation of pension for a certain period---Periodic increase in pension during commutation period---Expiry of commutation period---Effect---Full pension would be restored inclusive of periodic increase in pension during the commutation period---Pension of retired civil servants of Provincial Government was commuted to one half for a period of 15 years---Upon expiry of commutation period full pension was restored---Provincial Government issued an Office Memorandum whereby increase in pension granted during the commutation period was deducted from the pension paid to retired employees---Legality---When a retired civil servant's portion of pension was commuted for a particular period of time, he surrendered his right to receive full pension in lieu of lump sum payment received by him, and on expiry of the commuted period, his right and entitlement to receive full pension, as prescribed, was restored and re-vested in him---Restoration of the right to receive pension in terms of R. 8.12 of Punjab Civil Services Pension Rules, 1963 was without any rider, and upon re-vesting of such right, the status of such retired civil servant in law was brought at par with the other retired civil servants, who had not exercised their option of seeking commutation of their pension---Retired civil servant on expiry of the period of commutation could not be discriminated against by being paid less pension, than his colleagues, who had not sought commutation, as there was no valid justification available in law between the two--- If the Government were to adopt such a course of (discriminative) action, as had been attempted in the present case, it would offend Art. 25 of the Constitution---Restored pension payable to a retired civil servant upon expiry of period of commutation would obviously include any increase in pension granted by the Government during the intervening period of commutation---Even retired civil servants of the Federal Government were being paid their pension inclusive of the increases sanctioned during the commutation period, after the Supreme Court struck down an Office Memorandum, which deprived increase in pension sanctioned during the commuted period---Appeal was dismissed accordingly.

Akram ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others 2012 SCMR 106 distinguished.

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

----S. 19---Pension, right of---Nature---Acquired and vested right---Pension formed a part of a civil servant's retirement benefits---Pension was not a bounty or an ex-gratia payment but a right acquired in consideration of past services---Pension was a vested right and a legitimate expectation of a retiring civil servant---Right to pension was conferred by law and could not be arbitrarily abridged or reduced except in accordance with law.

The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P. Communication and Works Departments Peshawar v. Muhammad Said Khan and another PLD 1973 SC 514; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Deokinandan Prasad v. State of Bihar and others AIR 1971 SC 1409 and State of Punjab and another v. Iqbal Singh AIR 1976 SC 667 ref.

(c) Words and phrases---

----"Restored"--- Definition.

Words and Phrases, Permanent Edition, Volume 37A; Corpus Juris Secundum, Volume 77 and Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 4 ref.

Ch. Muhammad Iqbal, Additional A.-G., Khalid Mehmood, Additional Secretary (Regulation), Finance Department, Government of the Punjab, Lahore for Appellants.

Khadim Nadeem Malik, Advocate Supreme Court, Asif Ch., Advocate Supreme Court, Abrar Hasan Naqvi, Advocate Supreme Court, Talat Farooq Sh., Advocate Supreme Court, Nazeer Ahmed Qureshi, Advocate Supreme Court, Afshan Ghazanfar, Advocate Supreme Court, Mian Ashiq Hussain, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

Date of hearing: 31st March, 2014.

2014 S C M R 1347

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Nasir-ul-Mulk and Ejaz Afzal Khan, JJ

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.1277-L of 2013, decided on 3rd January, 2014.

(On appeal from the order dated 25-10-2013 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.11215-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd. common intention---Bail, grant of---Further inquiry---Non-attribution of any firearm injury---Effect---Accused was not alleged to have caused any firearm injury either to the deceased or the eye-witnesses---Deceased received only one firearm injury, which was attributed to co-accused---Question of accused's guilt required further inquiry in such circumstances---Accused was granted bail accordingly.

Hammad Akbar Wallana, Advocate Supreme Court for Petitioner.

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

Date of hearing: 3rd January, 2014.

2014 S C M R 1349

[Supreme Court of Pakistan]

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

Malik MUHAMMAD ASLAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.3-L of 2013, decided on 16th January, 2013.

(Against the order dated 26-12-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.17387-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(iii), 337-L(2) & 34---Constitution of Pakistan, Art. 185(3)---Shajjah-i-khafifah, ghayr-jaifah-mutalahimah, other hurt, common intention---Pre-arrest bail, grant of---Belated recovery of weapon of offence from accused inconsequential for the prosecution---Accused allegedly gave a hatchet blow to the injured victim, which blow landed on a finger attracting provisions of S. 337-F(iii), P.P.C.---Plea of prosecution that accused should not be granted pre-arrest bail as hatchet used by him during the occurrence was yet to be recovered from him---Validity---Although hatchet was not recovered from the accused as yet, but the occurrence took place about three months ago, during which period any blood available on the hatchet must have disintegrated leaving the proposed recovery to be of little legal consequence---Accused could not be deprived of his liberty merely to facilitate the investigating officer to go through a formality which was not likely to serve any beneficial purpose for the prosecution---Section 337-F(iii), P.P.C. carried a maximum punishment of three years' imprisonment---Petition for leave to appeal was converted into appeal and allowed, and consequently accused was granted pre-arrest bail.

Aftab Hussain Bhatti, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Jaffar Khan, S.-I. for the State.

Date of hearing: 16th January, 2013.

2014 S C M R 1351

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

FAZAL UR REHMAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through District Officer (Revenue) Bhakkar and another---Respondents

Civil Petition No.1569-L of 2013, decided on 25th November, 2013.

(Against the judgment dated 9-10-2013 of the Lahore High Court, Lahore passed in C.R. No.918 of 2013)

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 32---Constitution of Pakistan, Art. 185(3)---Unauthorized occupant---No documentary proof to support claim of occupation---Plea of petitioner that he had a 40 years possession over the land in question, therefore he was dispossessed in violation of S. 32 of Colonization of Government Lands (Punjab) Act, 1912---Validity---No document existed in favour of petitioner to establish his claim to remain in occupation of the property in dispute---Petitioner with no legal authority had occupied the premises in dispute---Petitioner was an unauthorized occupant---Plea of petitioner regarding his 40 years possession over the land, could never be a ground for the purpose of proprietary rights---Petition for leave to appeal was dismissed accordingly.

(b) Administration of justice---

----Law leaned towards persons who believed in the rule of law and not those who took the law in their hands.

Ch. Mushtaq Masood, Advocate Supreme Court for Petitioners with Petitioner No.2.

Nemo for Respondents.

Date of hearing: 25th November, 2013.

2014 S C M R 1353

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

FAQIR MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.148-L of 2014, decided on 13th March, 2014.

(On appeal against the order dated 13-1-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.17342-B of 2013)

Criminal Procedure Code (V of 1898)---

----S. 497---Electricity Act (IX of 1910), S. 39-A---Prevention of Corruption Act (II of 1947), S. 5(2)---Electricity theft, criminal misconduct---Bail, grant of---Delay in trial---Medical grounds---Late age of accused---Effect---Accused allegedly committed theft of electricity and also provided such electricity to other inhabitants of the locality---Accused was an aged man and was also ill---Section 39-A of Electricity Act, 1910 provided a sentence of 3 years' imprisonment [thus it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.]---Accused was behind bars for the last seven months---Challan had been submitted against accused but on account of non-availability of Special Judge, the trial was not proceeding---Supreme Court granted bail to accused in circumstances and directed the concerned authority to take immediate steps for appointment of Presiding Officers of Special Courts.

Hammad Akbar Wallana, Advocate Supreme Court for Petitioner.

Imran-ul-Haq, D.A.-G., Qaiser Mehmood, Dy. Dir. FIA and Hameedullah, I.O. for Respondents.

Date of hearing: 13th March, 2014.

2014 S C M R 1355

[Supreme Court of Pakistan]

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

MUHAMMAD BOOTA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.21-L of 2013, decided on 22nd January, 2013.

(Against the order dated 22-11-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.16488-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 337-A(i)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, shajjah-i-khafifah---Pre-arrest bail, grant of---Bailable offence---Generalized and collective allegation---Firearm not used during the occurrence---Strained relations between parties---Possibility of mala fide implication---Specific allegation against accused was that he used the butt of his firearm to cause blows to the injured prosecution witness---Medical certificate of injured witness showed that he did not receive any multiple injuries and the only injury sustained by him attracted S.337-A(i), P.P.C. which offence was bailable---Accused was not stated to have caused any injury to the deceased---Except for the allegation of injuring prosecution witness, remaining allegations against accused were generalized and collective---F.I.R. referred to the fact that during the incident some people from the accused's side also received injuries at the hands of the complainant party---During investigation accused's side also advanced its cross-version of the same incident---Despite being allegedly armed with a firearm accused did not use the same during the incident---Background of strained relations between the parties found specific mention in the F.I.R., thus possibility regarding exaggeration by the complainant party qua accused could not be ruled out at present stage---Possibility of accused's implication with mala fides was not without substance---Petition for leave to appeal was converted into appeal and allowed in circumstances, and consequently accused was admitted to pre-arrest bail.

Muhammad Sarwar Qamar, Advocate Supreme Court for Petitioner with the Petitioner in person.

Syed Abne Hassan, Advocate Supreme Court for the Complainant.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Fida Hussain, S.-I. for the State.

Date of hearing: 22nd January, 2013.

2014 S C M R 1358

[Supreme Court of Pakistan]

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

PROVINCE OF PUNJAB through District Officer Revenue, Rawalpindi and others---Appellants

Versus

MUHAMMAD SARWAR---Respondent

Civil Appeal No.1478 of 2013, decided on 21st January, 2014.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench dated 9-7-2013 passed in Civil Revision No.981 of 2010)

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

----S. 115---Court exercising its revisional power under S.115, C.P.C. on its own motion---Scope---Court could exercise revisional powers (under S.115, C.P.C.) on its own motion or on the application by an aggrieved party---Revisional power was general supervisory power and discretionary in nature where the court was empowered to examine the record of any case decided by a court subordinate to it to rectify any error or irregularity---Such power was exercisable where the court itself found any error of the nature provided in S.115, C.P.C. without there being any right in favour of a party aggrieved of an order or judgment of a subordinate court.

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

----S. 115--- Revision petition/application--- Filing of--- Limitation period---Ninety days---Where an aggrieved party sought redressal against the judgment or order through the revisional powers of the court under S.115, C.P.C. it had ninety (90) days to make such application, failing which the application was liable to be dismissed (as being time barred).

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and Government of N.-W.F.P. v. Abdul Malik 1994 SCMR 833 ref.

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

Rizwan Niaz, Advocate Supreme Court for Respondent.

Date of hearing: 21st January, 2014.

2014 S C M R 1365

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

MUHAMMAD TABISH NAEEM KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No.951-L of 2012, decided on 2nd January, 2013.

(Against the order dated 26-3-2012 of Lahore High Court, Lahore passed in W.P. No.26194 of 2011)

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 9 & 5, Sched.---Civil Procedure Code (V of 1908), O. VIII, R.1 & O. IX, R.6(a)---Family Court---Procedure---Family suit---Written statement not filed by defendant---Family Court empowered to strike off defendant's defence and pass ex parte decree---Scope---Family Court was a quasi judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principles of fair hearing and trial---Defendant of a family suit, who was duly served, but did not file his written statement within the time allowed to him by the court, the Family Court shall have the inherent power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles enunciated by the Civil Procedure Code, 1908.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. 9 & 12---Civil Procedure Code (V of 1908), O.VIII, R. 1 & O. IX, R.6(a)---Family Court---Procedure---Family suit---Written statement not filed by defendant---Family Court striking off defendant's defence and passing ex parte decree---Legality---Ex parte decree never challenged by the defendant---Effect---Where defendant was aggrieved of an ex parte order of the Family Court he should either get it set aside by filing an application before the Family Court or should challenge the same in appeal---Where defendant never challenges and gets the ex parte decree against him set aside, then such decree would attain finality.

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

----O.XLI, R.22---Decree---Cross objections, filing of---Purpose---Cross objections were not meant for the purpose of challenging the decree as a whole or for having the same set aside---Cross objections were only relevant and meant to have (challenge) a finding on a particular issue, which had been decided against a party to the lis, while supporting the decree in favour of the party filing cross objections.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Petitioner.

Ch. Aamer Rehman, Advocate Supreme Court and Mehmood ul Islam, Advocate-on-Record for Respondents Nos.3 to 5.

Date of hearing: 2nd January, 2013.

2014 S C M R 1369

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Mian MUHAMMAD AKRAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.52-L of 2013, decided on 29th January, 2013.

(Against the order dated 16-1-2013 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.234-B of 2013)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Pre-arrest bail, grant of--- Amount given by way of entrustment---Complainant had allegedly handed over some amount to the accused by way of trust---Cheque issued by accused in favour of complainant to return the said amount prima facie was not issued towards repayment of any loan or fulfilment of an obligation so as to attract S. 489-F, P.P.C.---Question as to whether S. 489-F, P.P.C. was attracted in the present case required further inquiry---During investigation no evidence came on record regarding any obligation on the part of the accused to repay any amount to the complainant---Accused had already joined the investigation---Petition for leave to appeal was converted into appeal and allowed, and consequently accused was granted pre-arrest bail.

Petitioner in person.

Complainant in person.

Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab and Sikandar, A.S.-I. for the State.

Date of hearing: 29th January, 2013.

2014 S C M R 1371

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mushir Alam, JJ

NADEEM AKHTAR TABASUM---Petitioner

Versus

MUSLIM COMMERCIAL BANK LIMITED and others---Respondents

Civil Petition No.139 of 2013, decided on 24th April, 2014.

(Against judgment dated 10-12-2012 of Islamabad High Court, Islamabad, passed in F.A.O. No.80 of 2012)

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 23-A, 64, 65, 66 & 90---Constitution of Pakistan, Art.185(3)---Judgment-debtor failing to pay part of decretal amount---Auction of judgment-debtor's property---Notice of auction---Publication in the newspaper---Judgment debtor aware of the auction proceedings---Banking Court decreed suit in favour of the Bank---Judgment-debtor failed to pay part of decretal amount, whereafter Banking Court confirmed auction of mortgaged property and dismissed objection petition filed by the judgment-debtor/petitioner---Validity---Judgment-debtor did not challenge the judgment and decree passed by the Banking Court---Mortgaged property was put to auction twice---First auction was set aside at the motion of the judgment-debtor and other objectors and re-auction was ordered---Judgment-debtor was fully aware of the re-auction proceedings---Judgment-debtor could not challenge the auction on grounds that notice was sent to the incorrect address, as notice was also published in the newspaper---Part of decretal amount already paid by the judgment-debtor was adjusted by the bank/decree holder towards the outstanding liability of the judgment-debtor---Appeal filed by judgment-debtor against judgment of Banking Court was rightly dismissed in limine by the High Court---Petition for leave to appeal was dismissed accordingly and leave was refused.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Raja Muqsit Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Sh. Muhammad Suleman, Advocate Supreme Court for Respondent No.2.

Date of hearing: 24th April, 2014.

2014 S C M R 1374

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUHAMMAD ZAHAR SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.42-L of 2013, decided on 12th March, 2013.

(On appeal against the judgment dated 14-12-2012 passed by Lahore High Court, Lahore in Criminal M. No. 14868-BC of 2011)

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 395, 412, 420, 468, 471, 447 & 511---Dacoity, dishonestly receiving property stolen in the commission of dacoity, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal trespass---Petition for cancellation of bail, dismissal of---Civil dispute---Police filing negative report qua guilt of accused---Effect---Accused persons who were police officials allegedly beat up the complainant party, confined them in a car and took away their paddy crop---Dispute between the parties was of civil nature as bone of contention between parties was the rice crop in question---Matter had been thoroughly investigated by the police authorities who filed a negative report before the court insofar as the guilt of accused persons was concerned---Consequently false allegation against accused persons could not be ruled out---Petition for cancellation of bail awarded to accused persons was dismissed accordingly and leave was refused.

Ch. Muhammad Hussain, Advocate Supreme Court along with Petitioner.

Rana Arif, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

Date of hearing: 12th March, 2013.

2014 S C M R 1376

[Supreme Court of Pakistan]

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

MUHAMMAD NADEEM ANWAR---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Director NBFCs Deptt., Islamabad---Respondent

Civil Petition No.304 of 2012, decided on 11th February, 2014.

(On appeal from the judgment dated 30-11-2011 in Intra Court Appeal No.1 of 2010 passed by the Peshawar High Court, Peshawar)

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

----S.403---Constitution of Pakistan, Arts. 13(a) & 185(3)---General Clauses Act (X of 1897), S. 26---Companies Ordinance (XLVII of 1984), Ss. 230(7), 234(6) & 282-K---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10 & 11---Penal Code (XLV of 1860), Ss. 409 & 109---Double jeopardy, principle of--- Scope--- Offences committed in one go but punishable under two separate and distinct enactments---Chief Executive Officer of bank (i.e. accused) allegedly obtained loan facilities fraudulently, falsified bank records, misappropriated funds of bank and his company and also committed corrupt practices---Criminal complaint was filed against accused by Securities and Exchange Commission of Pakistan (SECP) before the High Court---Reference was also filed against accused before National Accountability Bureau (NAB)---Criminal complaint and NAB reference were based on the same acts/omissions by accused---Accused was convicted under the NAB reference for corruption and corrupt practices---Plea of accused that elements of the criminal complaint filed by SECP and NAB reference were identical; that when he was convicted in the NAB reference, he could not be convicted twice for the same acts and omissions in the criminal complaint before the High Court---Validity---Provisions of Ss. 230(7), 234(6) & 282-K of Companies Ordinance, 1984 and Ss. 9, 10 & 11 of National Accountability Ordinance, 1999 were different enactments of law having different procedure and forum for initiating proceedings thereunder---Although both sets of offences had been committed by the accused in one go, however accused acted in such a manner which constituted offences punishable under two separate and distinct laws, i.e. one under the National Accountability Ordinance, 1999 and the other under the Companies Ordinance, 1984--- Despite the fact that the two separate prosecutions of accused arose out of the same incident or that some of the facts in the two prosecutions were common, the offences committed by accused under the Companies Ordinance, 1984 were quite different from the offences committed by him under the National Accountability Ordinance, 1999---Both were different and distinct pieces of legislation, therefore, acts and omissions committed by accused could not be said to be the same offences---Since the acts committed by accused did not fall within the definition of same offences, therefore, principle of double jeopardy would not come into force---Petition for leave to appeal was dismissed accordingly and leave was refused.

PLD 2002 SC 273 distinguished.

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

----S. 403---Constitution of Pakistan, Art. 13(a)---General Clauses Act (X of 1897), S. 26---Double jeopardy, principle of---Scope---No person could be vexed twice and prosecuted or punished for the same offence, but if he was guilty of offence under another enactment, though by the same chain of facts, he could be tried, convicted and punished under that very offence committed by him.

Adam v. Collector of Customs, Karachi PLD 1969 SC 446; Behari and others v. The State AIR 1953 All 510; Monica Bedi v. State of Andhra Pradesh (2011) 1 Supreme Court Cases 284; Manipur Administration, Manipur v. Thokchom Birasingh AIR 1965 SC 87; Sangeetabar Mahendrabhai Patel v. State of Gujarat and another (2012) 7 Supreme Court Cases 621; Muhammad Ashraf and others v. The State 1995 SCMR 626; Brothers Steel Mills Limited and others v. Mian Ilayas Mairaj and 14 others PLD 1996 SC 543 and Sher Muhammad Unar and others v. The State PLD 2012 SC 179 ref.

Syed Hasnain Ibrahim Kazmi, Advocate Supreme Court for Petitioner.

Iftikharuddin Riaz, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Muzaffar A. Mirza, Director Law SECP and Ibrar Saeed, Law Officer, SECP for Respondent.

Date of hearing: 11th February, 2014.

2014 S C M R 1446

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

NAVEED MUNIR---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and another---Respondents

Civil Petition No.1495-L of 2011, decided on 16th July, 2014.

(On appeal from order dated 27-6-2011, passed by the Lahore High Court, Lahore in W.P. No.26514 of 2010)

(a) Punjab Court of Wards Act (II of 1903)---

----S. 6---Guardians and Wards Act (VII of 1890), S. 7---Constitution of Pakistan, Art. 185(3)---Minor incapable of managing his valuable immovable property and other affairs---Guardian, appointment of---Mala fide of step-mother and paternal relatives of the minor---Effect---Not in the best interest of minor to appoint either a paternal cousin or stepmother as guardian of his person and/or property---Power of Court of Wards to make an order assuming the superintendence of the person and property of minor---Scope---Parents of minor boy (who was 11 years old) were divorced---Father contracted second marriage---Minor's father passed away leaving behind valuable properties, including agricultural land, commercial shops, residential houses, etc. and bank accounts---Biological mother of minor could not be traced despite many efforts of the court---Step-mother and a paternal cousin of the minor were locked in litigation with each other for guardianship of the minor---Both the step-mother and paternal cousin of minor submitted an undertaking before the Supreme Court that parties agreed not to litigate the issue of guardianship further before different forums, thus the Supreme Court may pass an appropriate order for welfare of the minor---Supreme Court observed that the interest of various parties in the minor may well be motivated by the property that he had inherited, rather than any natural love or affection; that if the minor had not inherited such property, he would perhaps have ended up in an orphanage or abandoned in the street; that the conduct of the paternal cousin, step-mother and the other paternal relatives of the minor had not been above-board; that the funds and immovable property inherited by the minor were not safe from the mala fide actions of his paternal relatives and step-mother, who attempted to transfer the same to third parties; that the minor was in the physical custody of his step-mother, who had other children from her previous husband; that the living conditions, as per the report of the Local Commission, appointed by the Supreme Court, did not appear to be very conducive to his well-being, and serious security concerns were also expressed by the minor himself; that in such circumstances it may not be in the best interest of the minor to appoint either his paternal cousin or stepmother, as a guardian of his person and/or property, and that present case was a fit case where the suo motu powers conferred by S. 6 of the Punjab Court of Wards Act, 1903, may be exercised by the competent authority by making an appropriate order assuming the superintendence of the person and property of the minor---Supreme Court directed that the Commissioner of the Division concerned should ensure that the matter of the assumption of the superintendence and control of the person and the property of the minor was be considered by the competent authority in terms of S. 6 of the Punjab Court of Wards Act, 1903, so that appropriate notifications were issued, orders passed and appointments made; that till the minor attained the age of 18 years, the Commissioner concerned shall report every three months about the person and property of minor to the Registrar of the Supreme Court for information of the court; that till the formal notification was issued in terms of the Punjab Court of Wards Act, 1903, the Receiver appointed and the Committee constituted by the Supreme Court to oversee the minor's performance in school will continue to function and perform their duties; that the Commissioner concerned shall file periodic quarterly reports to the Registrar of the Supreme Court regarding the details of the income that accrued from the properties of the minor, the expenditures incurred on the minor, the educational progress of the minor, the step taken or continued to ensure the health, security, well-being and welfare of the minor, and for protecting and preserving his property, and any other matter effecting the welfare of the minor---Petition for leave to appeal was disposed of accordingly.

(b) Guardians and Wards Act (VII of 1890)---

----S. 7---Constitution of Pakistan, Art. 185(3)---Parental jurisdiction of the Supreme Court---Scope---Best interest of minor---Formalistic approach commonly associated with the adjudication of adversarial civil disputes may not be conducive to the exercise of parental jurisdiction by the Supreme Court---More proactive role may have to be adopted so as to ensure the protection of the best interest of the minor.

Gohar Razzaq Awan, Advocate Supreme Court along with Petitioner in person.

Mrs. Tasneem Amin, Advocate-on-Record along with Mst. Kausar Parveen in person, Khalid, Advocate and Mehmood Advocate for Respondents.

Ejaz Qutab, Advocate Supreme Court on Court's Call.

Ch. Muhammad Hanif Khatana, Additional P.-G., Punjab, Aman Anwar, A/C, Raiwind and M. Arshad, Naib Tehsildar, Amici Curiae.

Date of hearing: 28th March, 2014.

2014 S C M R 1457

[Supreme Court of Pakistan]

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

Peer MUKARRAM-UL-HAQ---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No.34 of 2012, decided on 7th April, 2014.

(On appeal against the judgment dated 5-4-2011 passed by the Islamabad High Court, Islamabad, in W.P. No.4738 of 2010)

(a) Constitution of Pakistan---

----Arts. 48(1), 189, 190 & 212(3)---Civil Servants Act (LXXI of 1973), S. 23---Civil Servants (Appeal) Rules, 1977, R. 5---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 3(1)(a) [since repealed]---Constitutional obligation of the President of Pakistan to ensure implementation of the judgments of the Supreme Court---Scope---Dismissal of civil servant from service attaining finality after judgment of Supreme Court---President ordering re-instatement of such civil servant on grounds of hardship under S. 23 of Civil Servants Act, 1973---Legality and effect---President nullifying findings of the Supreme Court---Civil servant in question was dismissed from service on charge of un-authorized absence from duty---Civil servant preferred departmental appeal under S. 23 of Civil Servants Act, 1973 before the President (competent authority), which remained undecided---Consequently civil servant filed appeal before the Service Tribunal, which was allowed, however Supreme Court in its appellate jurisdiction maintained penalty of dismissal from service---Such judgment of the Supreme Court attained finality---Subsequent to Supreme Court's judgment civil servant preferred second appeal/review to the President under S. 23 of Civil Servants Act, 1973, which was ultimately allowed, and civil servant was reinstated in service---Held, such order by the President was per se violative of the judgment of the Supreme Court given under Art. 212(3) of the Constitution, whereby penalty of dismissal from service was maintained---Such order by the President (competent authority) offended Art. 190 of the Constitution, which mandated that all executive and judicial authorities shall act in aid of the Supreme Court---Civil servant had already availed the right of appeal against his dismissal from service in terms of R.5 of Civil Servants (Appeal) Rules, 1977---Civil servant having exhausted his remedy of appeal in the original proceedings (before the Service Tribunal and the Supreme Court), could not in law, file a second appeal and/or review under S. 23 of the Civil Servants Act, 1973, as such appeal/review would offend the provisions of Art. 212(3) of the Constitution---Findings recorded by the Supreme Court against the civil servant could not be appealed against by resorting to S. 23 of the Civil Servants Act, 1973 before the President---President (competent authority), in the present case, had nullified the findings of the Supreme Court against the civil servant---Even otherwise civil servant in question could not have preferred the appeal/review in terms of S. 23 of the Civil Servants Act, 1973, as he ceased to be a civil servant on the date of filing of such appeal/review due to his dismissal from service attaining finality---Appeal filed by civil servant was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Constitutional obligations of the President of Pakistan and Prime Minister---Scope---Implementation of the judgments of the Supreme Court---Both President and Prime Minister had to ensure that the judgments of the Supreme Court were implemented in its letter and spirit, and findings of the Supreme Court were not nullified.

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

----S. 23---Constitution of Pakistan, Arts. 48(1), 189, 190 & 212(3)---Civil service---Dismissal of civil servant from service attaining finality after judgment of Supreme Court under Art. 212(3) of the Constitution---President not empowered to reinstate such civil servant on grounds of hardship under S.23 of Civil Servants Act, 1973---Although S. 23 of Civil Servants Act, 1973 empowered the President to deal with the case of a civil servant in such a manner as may appear to him to be 'just' and 'equitable', but such power was not unbridled---Section 23 of Civil Servants Act, 1973 did not empower the President to pass orders of reinstatement of a civil servant who was dismissed from service, pursuant to the findings recorded by the Supreme Court which had attained finality---When there was no ambiguity in the findings recorded by the Supreme Court in relation to dismissal of a civil servant, the President in defiance of such findings was neither bound to act upon the advice of the Prime Minster in terms of proviso to the Art. 148(1) of the Constitution, nor the Prime Minister had the authority to advise the President to order reinstatement of such civil servant---Reinstatement of a civil servant on the ground of hardship, who had exhausted all the remedies under the law up to the Supreme Court on the issue of his dismissal from service, would be manifestly violative of Arts.189, 190 & 212(3) of the Constitution.

Shoaib Shaheen, Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2014.

2014 S C M R 1464

[Supreme Court of Pakistan]

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

NAVEED alias NEEDU and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.55-L of 2009, decided on 10th January, 2013.

(Against the judgment dated 3-6-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.1367 of 2002 and Murder Reference No.675 of 2002)

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

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive not proved---Two convicts sentenced to death for murder of one deceased---Effect---Accused and co-accused were sentenced to death by Trial Court for murdering complainant's brother-in-law---High Court maintained death sentence passed by Trial Court---Validity---Motive set up by the prosecution for the incident was that prior to the incident accused and co-accused had committed some high-handedness with a girl from the locality, because of which complainant's father and deceased allegedly reprimanded and admonished the accused and co-accused and threatened to send them to jail---Complainant stated before Trial Court that during the incident forming the motive no serious reprimand or rebuke had been offered by his father or deceased to the accused and co-accused and no altercation had taken place or hot words exchanged on that occasion---Girl around whom the motive revolved had never been named or identified either during investigation or during trial---Complainant's father was also never produced either before the investigating officer or the Trial Court---No serious effort was made by the investigating agency to collect any evidence regarding the motive asserted by the complainant party---Specific motive set up by the prosecution remained far from being established on the record---Medical evidence also suggested that there was a possibility that all injuries sustained by deceased had been caused by one and the same weapon---Even otherwise one person had lost his life and for that two persons had been sentenced to death---Supreme Court maintained conviction of accused and co-accused recorded by Trial Court but reduced their sentences from, death to imprisonment for life---Appeal was dismissed accordingly.

Ahmed Nawaz and another v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165 and Muhammad Mumtaz and another v. The State and another 2012 SCMR 267 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive not proved---Effect---Failure of prosecution to prove the motive set up may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a death sentence to that of imprisonment for life for safe administration of justice.

Ahmed Nawaz and another v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165 and Muhammad Mumtaz and another v. The State and another 2012 SCMR 267 ref.

Azam Nazir Tarar, Advocate Supreme Court for Appellants.

Malik Saeed Hassan, Senior Advocate Supreme Court for Respondents.

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

Date of hearing: 10th January, 2013.

2014 S C M R 1469

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

Mst. ZAITOON BEGUM---Appellant

Versus

NAZAR HUSSAIN and another---Respondents

Civil Appeals Nos.1181 - 1182 of 2007, decided on 13th May, 2014.

(On appeal from the judgment/order dated 17-1-2007 passed by Lahore High Court, Rawalpindi Bench in C.Rs. Nos.33 and 34 of 2000)

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---General power of attorney--- Genuineness of--- Fraud and misrepresentation---Female-plaintiff filed a suit alleging that General Power of Attorney executed by her in favour of defendant was obtained through fraud and misrepresentation; that she was given the impression that power of attorney was being obtained to institute a pre-emption suit regarding sale of land by her brother, however the same was used to vest complete authority in the defendant to sell property belonging to the plaintiff; that she was at the mercy of her husband, who joined hands with the defendant to deprive her of her property---Validity---Plaintiff admitted that she executed the deed of Power of Attorney; that she visited the office of Sub-Registrar, and that deed of Power of Attorney was attested by her husband---Deed of Power of Attorney bore the thumb impressions of the plaintiff and her National Identity Card number was also mentioned on the same by the Sub-Registrar---Proper certificate as required by law was appended to the deed of Power of Attorney, and it was also read over to the plaintiff by the Sub-Registrar---Stamp vendor stated in his evidence that it was the plaintiff who purchased the stamp papers for executing the Power of Attorney---Official of Deputy Commissioner's Office fully endorsed the view of Stamp Vendor---Moharrar Registry in his evidence also supported due execution of deed of Power of Attorney by the plaintiff in favour of defendant---During cross-examination of defendant, not a single question was put to him to suggest that deed of Power of Attorney was obtained through fraud or misrepresentation, or that the same was not read over and explained to the plaintiff---Evidence on record suggested that plaintiff and her husband were living cordially at the time when the Power of Attorney was executed in favour of defendant, and when subject property was sold on the basis of the same; that plaintiff instituted the present suit at the instance of her brother, who out of greed was after her property and was pursuing the case throughout---Plaintiff's husband testified that plaintiff duly executed the deed of Power of Attorney with her free will and consent, in his presence and got it registered with the Sub-Registrar; that suit land was sold and consideration for the same was received by the plaintiff---Such statement of plaintiff's husband was not seriously challenged by the plaintiff, in any manner---Plaintiff did not come to the court with clean hands and a clear stance---Suit of plaintiff had been rightly dismissed---Appeal filed by plaintiff was dismissed accordingly.

Janat Bibi v. Sikandar Ali PLD 1990 SC 642 and Muhammad Tufail v. Akbar Ali 2004 SCMR 1370 distinguished.

Shabana Irfan v. Shafi Khan 2009 SCMR 40 ref.

(b) Pardanashin lady---

----Deed executed by illiterate pardanashin lady---Allegation of fraud---Burden of proof---Burden of proof was on the person in whose favour deed had been executed by such lady.

(c) Pardanashin lady---

----Illiterate lady--- Protection awarded under law to such lady---Scope---Misuse of such protection---Effect---Misleading the court---Law as developed by courts provided maximum protection to illiterate ladies, to ensure that one could practice fraud upon them so as to deprive them of valuable property rights---However, under the garb of such protection or privilege, such ladies could not be given free licence to tell lie, by misusing such privilege or protection allowed to them under the law---Credibility of an illiterate lady, giving testimony on oath, was shaken to a great extent, once she was found jumping from one stance and catching on another stance---Such eventuality would give rise to a strong presumption that under the garb of protection given to an illiterate lady, she was herself indulging in misrepresentation and attempting to mislead the court to reach at a patently wrong conclusion---Courts were required to deal with each case according to its facts and circumstances and the evidence adduced therein, and in no manner should widen the scope of protection/privilege given to illiterate ladies.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of courts below---Such findings were not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on both points of fact and law.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53 ref.

(e) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Re-appraisal of evidence by the Supreme Court---Principles---Restraint---Scope---Principles of re-appraisal of evidence by the Supreme Court were more stringent, and the court would exercise extra-ordinary restraints to interfere lightly, unless and until, it was established that the courts below, including the High Court, had grossly misread or non-read the material evidence, and the impugned judgments and decrees were perverse, causing serious miscarriage of justice.

Abdur Rashid Awan, Advocate Supreme Court for Appellant (in both cases).

Tanvir-ul-Islam, Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 13th May, 2014.

2014 S C M R 1477

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Gulzar Ahmed and Muhammad Ather Saeed, JJ

INAYATULLAH---Appellant

Versus

Syed KHURSHEED AHMED SHAH and others---Respondents

Civil Appeal No.966 of 2013, decided on 15th May, 2014.

(On appeal from the judgment dated 18-7-2013 passed by the Election Tribunal, Sukkur in Election Petition No.48 of 2013)

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

----S. 54(b)---Post Office Act (VI of 1898), Preamble---Election petition---Serving of election petition on contesting candidates---Personally or through registered post---Courier service---Petitioner serving election petition on contesting candidates through courier service---Effect---Courier service at best could be treated as an agent of the petitioner---Service through an agent would not constitute service effected personally---Service through registered post raised statutory presumptions in the ordinary course---No such presumption attached to service through courier---Appeal filed by petitioner was dismissed accordingly.

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

----S. 55(3)--- Election petition--- Verification on oath---Plea of petitioner that although verification had not been made on oath before the Oath Commissioner at the foot of the petition itself, but an affidavit had been filed which bore the attestation of the Oath Commissioner---Validity---Election petition was sent to the contesting candidates through courier on 18-6-2013---Affidavit in question was sworn on 17-6-2013, however attestation of the same was made on 18-6-2013---Verification on the petition itself stated that such verification was made on 17-6-2013, but such verification was incorrect bearing in mind that the copy of the election petition was sent to contesting candidates on the following day i.e. 18-6-2013---Affidavit of service was itself belied and rendered false by the courier receipts---Appeal filed by petitioner was dismissed accordingly.

Shahab Sarki, Advocate Supreme Court for Appellant.

Mian Raza Rabbani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 15th May, 2014.

2014 S C M R 1481

[Supreme Court of Pakistan]

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

IRSHAD MASIH and others---Petitioners

Versus

EMMANUEL MASIH and others---Respondents

Civil Review Petition No.235 of 2009 in Civil Appeal No.1244 of 2003, decided on 24th June, 2014.

(For review against the order dated 22-10-2009 passed by this august Court in C.A. No.1244 of 2003)

Per Sarmad Jalal Osmany, J.; Ijaz Ahmed Chaudhry, J. agreeing; Anwar Zaheer Jamali, J. dissenting. [Majority view]

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30-A(1)(a)---Succession Act (XXXIX of 1925), Ss. 29 & 37---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Proprietary rights acquired by a Christian lady as a limited owner---Death of Christian lady---Proprietary rights would revert to legal heirs of last male tenant---"Last male tenant"---Interpretation---"F" and his three brothers, who were all Christians, acquired tenancy rights in the disputed property from their father "A"---Upon death of "F", who had no male issue, his share of property devolved upon his widow as limited owner under the custom---Widow contracted second marriage, where after proprietary rights in disputed property devolved upon her only daughter "M" as limited owner during her life time---Upon death of "M" disputed property would revert to the legal heirs of the last male tenant per S. 30-A(1) of the Colonization of Government Lands (Punjab) Act, 1912---"M's" father i.e. "F" was indeed the last male tenant and his legal heir was his widow, and upon her death, her daughter "M" and ultimately the petitioners (legal heirs of "M"), therefore disputed property would devolve upon the petitioners in equal shares as per Ss. 29 & 37 of the Succession Act, 1925---Review petition was allowed accordingly, and the matter was remanded to the concerned Deputy Commissioner to determine the legal heirs of "M" and thereafter proceed to mutate the property in their names in equal shares in accordance with provisions of S. 37 of the Succession Act, 1925.

Mst. Inayat Bibi through Legal heirs v. Issac Nazir Ullah and 2 others PLD 1992 SC 385 ref.

Per Anwar Zaheer Jamali, J.; disagreeing with Sarmad Jalal Osmany, J. [Minority view]

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

----S. 51, O. XXI, R. 10---Execution of decree---Powers of Executing Court---Scope---Executing court, under no circumstances, could go beyond the decree---Executing court could not creatively interpret a decree which had attained finality before the Supreme Court to nullify its effect.

Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar v. Shalimar General Insurance Company Limited 1994 SCMR 22; Province of Punjab through Secretary Industries v. Burewala Textile Mills Limited 2001 SCMR 396 and Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore PLD 2009 SC 760 ref.

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

----Ss. 51 & 114 & O. XXI, R. 10 & O.XLVII, R. 1---Order passed during execution proceedings, review of---Scope---Court dealing with a review petition and re-examining an order passed during execution proceedings was constrained not only by the limited scope of exercise of jurisdiction of review, but also by the settled principle that the executing court could not go behind the decree.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30-A(1)(a)---Succession Act (XXXIX of 1925), Ss. 29 & 37---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Proprietary rights acquired by a Christian lady as a limited owner---Death of Christian lady---Proprietary rights would revert to legal heirs of last male tenant---"Last male tenant"---Interpretation---"F" and his three brothers, who were all Christian, acquired tenancy rights in the disputed property from their father "A"---Upon death of "F", who had no male issue, his share of property devolved upon his widow as limited owner under the custom---Widow contracted second marriage, where after proprietary rights in disputed property devolved upon her only daughter "M" as limited owner during her life time---Upon death of "M" disputed property would revert to the legal heirs of the last male tenant per S. 30-A(1) of the Colonization of Government Lands, 1912, and "M's" rights of alienation of disputed property would not be governed by the Succession Act, 1925---"Last male tenant" in the present case was "A" or his surviving male issues or their descendants, which meant that after "M's" death the property would devolve upon her father's brothers or their successors---"M's" legal heirs would not have a claim of ownership over disputed property in such circumstances---Review petition was dismissed accordingly. [Minority view].

Illam Din v. Muhammad Din PLD 1964 SC 842 ref.

Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioners.

Mian Muhammad Hanif, Advocate Supreme Court for Respondents.

Date of hearing: 10th February, 2014.

2014 S C M R 1499

[Supreme Court of Pakistan]

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

Qari MUHAMMAD RAFIQUE---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE (INV.), PUNJAB and others---Respondents

Civil Petition No.773-L of 2013, decided on 25th April, 2014.

(On appeal from the order dated 8-4-2013 in I.C.A. No.288 of 2013 passed by the Lahore High Court, Lahore)

Police Order [22 of 2002]---

----Art. 18(6)---Criminal Procedure Code (V of 1898), Ss. 173 & 221---Change/transfer of investigation---Scope---Investigation transferred at a stage when challan had already been submitted in court, charge had been framed and trial had commenced---Order for transfer of investigation at such a belated stage would not be sustainable in the eyes of law.

Muhammad Nasir Cheema v. Mazhar Javaid and another PLD 2007 SC 31 ref.

Gohar Razzaq Awan, Advocate Supreme Court for Petitioner.

Shahid Azeem, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

Date of hearing: 25th April, 2014.

2014 S C M R 1502

[Supreme Court of Pakistan]

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

FAQIR HUSSAIN alias BALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.1008-L of 2012, decided on 16th January, 2013.

(Against the order dated 29-11-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15885-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149, 109, 337-A(i), 337-F(i) & 337-L(2)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment, shajjah-i-khafifah, ghayr-jaifahdamiyah, other hurt---Bail, grant of---Further inquiry---Allegation against accused was that he along with his co-accused gave a beating to prosecution witnesses; that he along with his co-accused abducted one of the deceased and later drowned him in a river---Medical evidence showed that all injuries sustained by the prosecution witnesses attracted offences which were bailable---Accused was not alleged to have caused any injury to one of the deceased---Regarding allegation of abduction of one of the deceased and his drowning in a river, provisions of S. 365, P.P.C. were neither invoked in the F.I.R. nor any charge had so far been framed against the accused for such an offence---Report submitted before court under S. 173, Cr.P.C. specifically mentioned that story regarding abduction of one of the deceased and his drowning in a river was untrue---Investigation of the case was complete and challan had been submitted in court, thus physical custody of accused was not required at present stage for purposes of investigation---Trial of accused was not progressing despite directions of the Supreme Court and the High Court, inasmuch as even charge had not been framed---Case against accused called for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and consequently accused was admitted to bail.

Tahir Aslam Qureshi, Advocate Supreme Court for Petitioner.

Ch. Nazir Ahmed Kamboh, Advocate Supreme Court, M. Shahid Buttar, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for the Complainant.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and M. Afzal, S.I. for the State.

Date of hearing: 16th January, 2013.

2014 S C M R 1504

[Supreme Court of Pakistan]

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

Lt. Gen. (Retd.) JAMSHAID GULZAR and another---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos.826, 827 and 828 of 2007, decided on 25th June, 2013.

(On appeal from judgments of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-12-2005 and 8-3-2006 passed in W.Ps. Nos.2379 of 2005 and 68 of 2006)

(a) Constitution of Pakistan---

----Art. 242(1A)---Federal Public Service Commission Ordinance (XLV of 1977), S. 4---Federal Public Service Commission (Amendment) Act (V of 2006), S. 2---Chairman and Members of Federal Public Service Commission, appointment of---Terms of office---Reduction in tenure of office---Authority of legislature to take away a vested right retrospectively---Scope---Chairman and Members of Federal Public Service Commission were appointed for a term of five years under Art.242(1A) of the Constitution and S. 4 of the Federal Public Service Commission Ordinance, 1977, respectively---Subsequently their tenure of office was reduced to three years by promulgation of various Ordinances and finally by Federal Public Service Commission (Amendment) Act, 2006---Plea of Chairman and Members of the Commission was that their appointment for a term of five years was their vested right which could not be curtailed or reduced to three years by retrospective operation of the impugned Ordinances and the Federal Public Service Commission (Amendment) Act, 2006---Validity---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment---Language of S. 2 of Federal Public Service Commission (Amendment) Act, 2006 made it clear the change in tenure of office had been given retrospective effect from the date when Federal Public Service Commission Ordinance, 1977 was promulgated---Legislature had ensured the applicability of the Federal Public Service Commission (Amendment) Act, 2006 with retrospective effect, covering the case of all serving Chairman/Members of the Commission---When the legislature had given the Federal Public Service Commission (Amendment) Act, 2006 retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights could be offered contrary to it--- Appeal was dismissed accordingly.

(b) Legislation---

----Retrospective effect---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment.

(c) Legislation---

----Retrospective effect---Vested right, curtailment of---Scope---Where the legislature had given an enactment retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights of a party could be offered contrary to it.

Nasir-ud-Din Khan Nayyer, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Appellants.

Raja Muhammad Aleem Abbasi, Deputy Attorney General and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 25th June, 2013.

2014 S C M R 1524

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

ABDUL MAJEED KHAN through L.Rs. and others---Appellants

Versus

Ms. MAHEEN BEGUM and others---Respondents

Civil Appeal No.1056 of 2009, decided on 29th May, 2014.

(On appeal against the judgment dated 26-11-2008 passed by the Peshawar High Court, D.I. Khan Bench, D.I. Khan in Writ Petition No.343 of 2007)

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

----S. 163---Gift, validity of---Challenging validity of a gift mutation---Forum---Civil court---Not revenue authorities---Question of validity or otherwise of a gift mutation was not the domain of the revenue hierarchy but fell exclusively within the plenary jurisdiction of the civil court---Disputed questions of fact could not be entertained by revenue hierarchy.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Orders/judgments passed by a lower court or authority without jurisdiction---Such orders/judgments were deemed to have been passed illegally and the High Court would be justified in exercising its constitutional jurisdiction to rectify the same.

Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003 SCMR 708 and Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P. Peshawar and 4 others PLD 1991 SC 531 ref.

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Tanvir-ul-Islam, Advocate Supreme Court for Respondents.

Date of hearing: 29th May, 2014.

2014 S C M R 1530

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

FEDERAL GOVERNMENT M/o DEFENCE, RAWALPINDI---Appellant

Versus

Lt. Col. MUNIR AHMED GILL---Respondent

Civil Appeal No.1172 of 2009, decided on 7th May, 2014.

(Against the judgment dated 22-12-2008 passed by Lahore High Court, Rawalpindi Bench in W.P. No.2562 of 2000)

(a) Constitution of Pakistan---

----Art. 199(3)---Pakistan Army Act (XXXIX of 1952), S. 2 & Preamble---Order passed by army authorities---Mala fide, quorum non judice or without jurisdiction---Bar of jurisdiction imposed on High Court under Art. 199(3) of the Constitution---Scope---When any action of the army authorities regarding a serving officer of the armed forces or any other person subject to the Pakistan Army Act, 1952, was established to be either mala fide, quorum non judice or without jurisdiction then the same could be assailed through a constitutional petition by the aggrieved person, and the bar of jurisdiction under Art.199(3) of the Constitution would have no applicability.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 ref.

(b) Pakistan Army Act (XXXIX of 1952)---

----Ss. 8(3), 24 to 51, 52, 53, 54, 55 & 57---Offences relating to general behavior and conduct of an army officer---Distinguishable from substantive offences---Sections 52 & 55 of the Pakistan Army Act, 1952 were omnibus provisions which related to general behavior and conduct of an officer of the army, whereas the other offences starting from Ss. 24 to 51, 53, 54 & 57 describes substantive offences---Offences under Ss. 52 & 55 of the Pakistan Army Act, 1952 were not described in detail and consequently would cover a wide variety of conduct of a person subject to the Pakistan Army Act, 1952 generally with regard to his day to day behaviour with others, his/her integrity and good conduct---Sections 52 & 55 of the Pakistan Army Act, 1952 covered any action or conduct which was unbecoming of an officer and gentleman.

(c) Pakistan Army Act (XXXIX of 1952)---

----S. 55---Army officer---Falsifying income tax returns---Offences relating to general behavior and conduct of an army officer---Scope---Falsifying an income tax return by an army officer would be covered under S. 55 of the Pakistan Army Act, 1952 because it certainly displayed a lack of integrity.

(d) Pakistan Army Act (XXXIX of 1952)---

----S. 55---Constitution of Pakistan, Art. 199(3)---Army officer---Allegation of falsifying income tax returns---Tax returns accepted by income tax authorities---Field General Court Martial (FGCM) still trying such officer under S. 55 of Pakistan Army Act, 1952 and dismissing him from service---Legality---Record showed that income tax return filed by army officer was accepted by the concerned income tax authorities---Army officer was not asked either to show cause why it should not be accepted or otherwise required to justify the same---Prosecution of army officer in question by army authorities for an offence which the concerned department had not taken cognizance of and neither issued him any show cause notice etc., and given him a clean chit, then it was not within the domain or jurisdiction of army authorities to prosecute him for the same---High Court had rightly accepted constitutional petition filed by the army officer in question and set aside his conviction---Supreme Court directed that since army officer in question had reached age of superannuation, hence he shall be deemed to have honourably retired from the army with all consequential benefits including pension etc.

Khawaja Ahmed Hassan, D.A.-G., M.S. Khattak, Advocate-on-Record and Col. Shamsher and Maj. Shahjehan (JAG) GHQ for Appellant.

Col. (R.) Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 25th April, 2014.

2014 S C M R 1536

[Supreme Court of Pakistan]

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

MAZHAR ALI---Petitioner

Versus

ANSAR ALI and others---Respondents

Civil Petition No.115-L of 2013, decided on 25th April, 2014.

(On appeal from the judgment dated 29-11-2012 in W.P. No.9311 of 2012 passed by the Lahore High Court, Lahore)

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari---Original case property---Scope---Applicant was accused of stealing a buffalo belonging to defendant/respondent, and had allegedly sold the same to purchase another buffalo (disputed buffalo)---Initially Judicial Magistrate granted superdari of disputed buffalo to the defendant/respondent---Subsequently Judicial Magistrate on the orders of Revisional Court inquired into the matter summarily and granted superdari of disputed buffalo to the applicant---Revisional Court upheld order of grant of superdari in favour of applicant---High Court in its constitutional jurisdiction, however, restored the initial order passed by Judicial Magistrate, whereby superdari of the buffalo was granted to the defendant/respondent---Legality---Affidavits placed on record in support of applicant's claim were duly supported by the circumstances of the case---Judicial Magistrate granted superdari of disputed buffalo to the applicant, which findings of fact were upheld by the Revisional Court finding no illegality in the order of Judicial Magistrate---High Court illegally restored initial order of Judicial Magistrate, which had been set aside by the Revisional Court---High Court had set aside findings of fact recorded by both the courts below and granted superdari to defendant/ respondent without pin pointing any legal infirmity therein---High Court merely on statement of investigating officer that superdari of disputed buffalo was already with defendant/respondent for the last about one year, granted superdari to the defendant/respondent---Order of High Court was set aside in circumstances---Appeal was allowed accordingly.

Malik Amjad Pervaiz, Senior Advocate Supreme Court for Petitioner.

Nazar Abbas Syed, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondent No.1.

Date of hearing: 25th April, 2014.

2014 S C M R 1539

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

MUHAMMAD BACHAL MEMON and others---Appellant

Versus

Syed TANVEER HUSSAIN SHAH and others---Respondents

Civil Appeals Nos.5-K of 2014 and 311 to 314 of 2013, decided on 18th June, 2014.

(Against the judgments dated 28-10-2013 and 12-11-2010 passed by the Sindh Service Tribunal, Karachi and High Court of Sindh in Appeal No.95 of 2012 and Constitutional Petition No.D-890 of 2006 respectively)

(a) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 8 & 9---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 9---Constitution of Pakistan, Arts. 139(3) & 240---Civil service---Cadres---Inter se seniority---Engineers working in different Government departments having separate seniority lists---Reconfiguration/merger of departments---Procedure---Creation of combined seniority list---Legality---First cadre of engineers worked in the Provincial Education Department---Second cadre of engineers worked in the Communication and Works Department ("C&W") Department---Said two cadres continued their parallel existence alongside each other---As a result of reconfiguration of departments in the year 2002, Provincial Government created a new Works and Services department and a combined seniority list was prepared for engineers belonging from the two cadres on the basis that said two cadres purportedly stood merged---Held, under the constitutional scheme, administrative changes or allocation and reallocation of the business of the Province could be made under the Rules of Business made under Art. 139(3) of the Constitution but changes in the service conditions including seniority of civil servants could only be made under Art. 240 of the Constitution, something which was not done in the present case---Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the rules framed thereunder for such purpose---Even if an attempt was made by the Provincial Government to provide for a change or merger of cadres it had to be done in accordance with the provisions of S. 8 of the Sindh Civil Servants Act, 1973, which related to seniority or through legislation---Preparation of combined/joint seniority list for the engineers from the two cadres was not in accordance with the law---Appeal was disposed of accordingly.

(b) Fundamental Rules, 1922---

----R. 9(4)---Sindh Civil Servants Act (XIV of 1973), Preamble---"Cadre"---Term "cadre" was not defined in the Sindh Civil Servants Act, 1973---Term "cadre" as given in the Fundamental Rules, 1922 was not inconsistent with any of the provisions of the Sindh Civil Servants Act, 1973, thus the same would apply to the service laws of the Province (i.e. Sindh).

(c) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 8 & 26---Constitution of Pakistan, Art. 240---Inter se seniority of civil servants---Alteration in---Terms and conditions of service including seniority inter se between civil servants could only be altered/effected by means of an Act of the Provincial Assembly as had been expressly stipulated in Art. 240 of the Constitution or by rules made within the rule making power given in S. 26 of the Sindh Civil Servants Act, 1973.

(d) Constitution of Pakistan---

----Art. 139(3)---Civil service---Rules of Business of a Provincial Government---Rules of business could not be made in respect of service matters.

(e) Civil service---

----Government departments--- Merger of--- Cadres--- Merger of government departments did not by itself, amount to merger of cadres.

M. Aqil Awan, Senior Advocate Supreme Court for Appellants (in C.A. 5-K of 2014).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As. 311 - 312 of 2013).

Mehmood A. Sheikh, Advocate-on-Record assisted by Faraz Raza Advocate, Moazzam Habib, Advocate and Ms. Amina Sheikh, Advocate for Appellants.

Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. 313 of 2013).

Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. 314 of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.A. 5-K of 2014).

M. Aqil Awan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3, 4, 6, 7, 9, 10 (in C.A. 311 of 2013).

Wasim Sajjad, Senior Advocate Supreme Court assisted by Idris Ashraf, Advocate for Respondent No.3 (in C.A. 312 of 2013).

Nemo for other Respondents.

Sibtain Mehmood, A.A.-G. for Province of Sindh.

Dates of hearing: 7th to 10th and 17th April, 2014.

2014 S C M R 1554

[Supreme Court of Pakistan]

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

KHIZAR HAYAT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.293 of 2010, decided on 8th January, 2013.

(Against the judgment dated 23-4-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.285 of 2006)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Reappraisal of evidence---Accused allegedly inflicted hatchet blows upon the deceased and murdered him---Trial Court convicted accused under Ss. 302(b) & 34, P.P.C. and sentenced him to imprisonment for life---High Court maintained conviction and sentence passed by the Trial Court---Validity---F.I.R. was promptly lodged and accused was nominated therein as the principal perpetrator---Medical evidence fully supported the ocular account, which was furnished by prosecution witnesses who were natural witnesses of the incident being inmates of the house wherein the occurrence took place---Blood-stained hatchet had also been recovered from the accused during investigation---Courts below undertook an exhaustive analysis of the evidence available on record and then concurred in their conclusion regarding guilt of accused---Courts below had already treated accused leniently in the matter of his sentence---Appeal was dismissed accordingly.

Mrs. Roshan Ara, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Appellant.

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

Date of hearing: 8th January, 2013.

2014 S C M R 1557

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

COMMISSIONER INCOME TAX---Appellant

Versus

HABIB BANK LIMITED AND ANZ GRINDLAYS BANK PLC---Respondent

Civil Appeals Nos.1956 to 1958 of 2006, decided on 14th March, 2014.

(Against judgments dated 3-4-2004 and 26-3-2004 of High Court of Sindh at Karachi, passed in C.Ps. Nos. 1600 and D-1727 of 1994)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 17 & 32---Interest on securities of the Federal/Provincial Government---Exempted from tax---Method of accounting for computation of income---Method regularly adopted by assessee---Respondent-Banks filed their returns of income tax for the relevant assessment years declaring interest on Government securities on "receipt basis"---Declaration so made was accepted by assessing authority---Assessments were framed and orders were passed treating the same as a past and closed transaction---Subsequently assessing authority issued notices to the banks to show cause as to why the assessments carried out earlier not be opened and revised---Legality---Section 32 of Income Tax Ordinance, 1979 provided an exception to the computation of income including interest on any securities of the Federal Government or a Provincial Government received by an assessee in any income year---Banks were justified in adopting the method of accounting which was hybrid and had been consistently used by the banks since long---Appeal filed by assessing authority was dismissed accordingly.

(b) Estoppel---

----No estoppel against the law.

(c) Constitution of Pakistan---

----Arts. 189 & 201---Law enunciated by the High Courts and the Supreme Court---Binding precedent---Law enunciated by the High Courts under Art. 201 of the Constitution became a binding precedent for all the forums within the Province---Law enunciated by the Supreme Court under Art. 189 of the Constitution became binding precedent for all forums in the country.

Akhtar Ali Mahmud, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Salman Iqbal Pasha, Advocate Supreme Court for Respondent.

Date of hearing: 14th March, 2014.

2014 S C M R 1562

[Supreme Court of Pakistan]

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

Sheikh MUHAMMAD SHAKEEL---Appellant

Versus

Sheikh Hafiz MUHAMMAD ASLAM---Respondent

Civil Appeal No.1428 of 2007, decided on 14th May, 2014.

(Appeal against the order dated 18-6-2007 passed by the High Court of Sindh, Karachi, in Ist appeal No.32 of 2004)

(a) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---"Promissory note"---Attestation of---Not a legal requirement---Instrument which fulfilled all the conditions mentioned in S. 4 of the Negotiable Instruments Act, 1881 would be termed as a "promissory note"---Such an instrument was not required to be attested in terms of Art. 17(2)(a) of Qanun-e-Shahadat, 1984.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Stamp Act (II of 1899), Ss. 35 & 36---Promissory note---Insufficiently stamped---Neither invalid nor void---Admissibility in evidence of an insufficiently stamped promissory note---Scope---Insufficiently stamped Promissory Note was neither invalid nor a void instrument, but it was only subject to disabilities mentioned in S. 35 of the Stamp Act, 1881---Deficiently stamped pro note was not admissible in evidence nor it could be acted upon unless duly stamped---However in terms of S. 36 of Stamp Act, 1881 if a deficiently stamped instrument was once admitted in evidence and marked as an exhibit, it was not permissible for the Court of first instance, or in appeal or in revision to exclude such instrument from its consideration---Provisions of S. 36 of Stamp Act, 1881 were mandatory in nature and had overriding effect on S. 35 of the said Act imposing a complete bar to question the admissibility of a Promissory Note once it had been admitted and exhibited in evidence without any objection from the other side and included all such instruments which fell under proviso (a) to S.35 of the Stamp Act, 1881.

Ch. Khalid Mehmood v. Ch. Said Muhammad PLD 2005 Lah. 732 ref.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Stamp Act (II of 1899), Ss. 35 & 36---Civil Procedure Code (V of 1908), O.VIII, R.1 & O. XIV, R. 1(5)---Promissory note insufficiently stamped---Admissibility in evidence---Scope---Irrespective of the fact that the Promissory note produced by the plaintiff in evidence was insufficiently stamped, it was neither challenged by the defendant in his written statement nor an issue was framed in regard to it--- Insufficiently stamped promissory note was admitted in evidence and marked as an exhibit without objection, thus it could not be discarded on the ground that it was insufficiently stamped---Section 36 of the Stamp Act, 1881 debarred the defendant from calling in question the admissibility of such a Promissory Note on the ground that it was insufficiently stamped---Appeal was allowed accordingly.

Ch. Khalid Mehmood v. Ch. Said Muhammad PLD 2005 Lah. 732 ref.

Arshad Ali Ch., Advocate-on-Record/Advocate Supreme Court for Appellant.

Muhammad Ilyas Sheikh, Advocate Supreme Court for Respondent.

Date of hearing: 14th May, 2014.

2014 S C M R 1567

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

AMJAD QADOOS---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU (NAB) ISLAMABAD and others---Respondents

Civil Petition No.669 of 2014, decided on 13th June, 2014.

(On appeal against the judgment dated 17-4-2014 passed by Peshawar High Court, Peshawar in W.P. No.185-A of 2014)

Income Tax Ordinance (XLIX of 2001)---

----S. 227(2)(3)---National Accountability Ordinance (XVIII of 1999), S.3---Tax Officer alleged to have acted unlawfully---Investigation/ prosecution of such Tax Officer by National Accountability Bureau (NAB)---Whether permission of Federal Board of Revenue was required---Section 227(3) of the Income Tax Ordinance, 2001 provided that acts done by officials of the Federal Board of Revenue were protected to the extent that no inquiry could be initiated against such officers in respect of their official acts without the permission of the Board---Wherever the officials of the income tax department or of any other agency did any act in their official capacity in furtherance of the objectives of the legislation which gave them the power to do so, such acts should remain protected---Such protection, however, could only be extended to legitimate acts i.e. those done in good faith, bona fidely and in the interest of the State and not to acts which were allegedly unlawful---Where a Tax Officer did an act which was allegedly unlawful, e.g. issuing/authorizing bogus and fraudulent tax refunds, then such protection was not available to him and NAB authorities would not need permission from Federal Board of Revenue before initiating an inquiry into the conduct of such official.

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Akbar Tarar, Additional P.-G. NAB and Saeed Akhtar, Assistant Director NAB, Khyber Pakhtunkhwa.

Syed Zubair Shah, D.C. I.R. for FBR.

Salman Aslam Butt, Attorney-General for Pakistan on Court's Notice.

Date of hearing: 13th June, 2014.

2014 S C M R 1573

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Mian Saqib Nisar, JJ

M/o IPC through Secretary and others---Petitioners

Versus

ARBAB ALTAF HUSSAIN and others---Respondents

Civil Petitions Nos.784, 853 to 876 of 2014, Criminal Original Petitions Nos.48 and 54 of 2014, decided on 21st July, 2014.

(Against the judgment dated 17-5-2014 of the Islamabad High Court, Islamabad passed in Writ Petitions Nos.1789, 1949, 1866, 1861, 1860, 1973, 1865, 2045, 2277, 1974, 2167, 2264, 2061, 2166, 1972, 1971, 1859, 2057, 2055, 2056, 2060, 1864, 2059, 2082 and 2058 of 2014)

(a) Constitution of the Pakistan Cricket Board, 2014---

----Paras. 6, 38 & 41---Chairman, Pakistan Cricket Board ("Board")---Removal from office after supersession of the Board---Legality---Acceptance of supersession and acquiescence by the Chairman---Effect---Acceptance by silence, doctrine of---Chairman of the Board was removed from office after the Patron (i.e. Prime Minister) superseded the Board and constituted an Interim Management Committee for the performance of the functions of the Board---High Court set aside the act of supersession of the Board and revived the superseded Board, with the effect that Chairman was restored to his post---Validity---Chairman never personally came forward to challenge his removal and supersession of the Board; therefore, he for all intents and purposes accepted the supersession and acquiescence thereto---One of the Members of the Board had challenged the supersession of the Board before the High Court by way of impugned judgment and the Chairman only moved an application for his transposition as a petitioner in the matter, but there was no order of the High Court in respect of his transposition request---"Doctrine of acceptance by silence" could also be legitimately invoked against the Chairman in such context---Chairman through his counsel gave an undertaking before the Supreme Court that for the vindication of his position he requested the Court for his reinstatement as per the impugned judgment of High Court , and simultaneously shall resign, without taking over as the Chairman even for a single moment---On account of such promise and undertaking, the Chairman accepted the new Constitution, and the holding of fresh elections (events which took place after the supersession of the Board)---Chairman was estopped by his own conduct to take a different stance before the Supreme Court and defend the impugned judgment of the High Court---Appeal was allowed accordingly and impugned judgment of High Court was set aside.

(b) Words and phrases---

----"Acquiescence"---Definition.

Black's Law Dictionary 8th Edition ref.

(c) Sports (Development and Control) Ordinance (XVI of 1962)---

----S. 4---Sports Board---Constitution---Power to repeal, amend or substitute the Constitution---Vested with the Federal Government---Plea that provisions of S. 4 of the Sports (Development and Control) Ordinance, 1962, gave authority to the Federal Government to give a Constitution for the first time for a Sports Board created under the provisions of the said Ordinance, but there was no power in the said Ordinance enabling the Federal Government to make any amendment in such Constitution or to substitute that Constitution with a new one---Validity---Authority which had the power to enforce law, shall necessarily have the power to repeal the law; to amend the same; and even to substitute the law by repealing the earlier law on the subject, provided it was otherwise within the legislative competence of such authority---Plea in such circumstances was held to be without force---Appeal was allowed accordingly.

(d) Constitution of the Pakistan Cricket Board, 2014---

----Paras.10, 38 & 41---Pakistan Cricket Board ("Board")---Member, Board of Governors---Removal from office after supersession of the Board---Unexplained delay in challenging removal---Effect---Acquiescence---Laches---Infructuous petition---Member, Board of Governors (petitioner) was removed from office after the Patron (i.e. Prime Minister) superseded the Board and constituted an Interim Management Committee for the performance of the functions of the Board---Member filed a constitutional petition before the High Court challenging the supersession of the Board, which was allowed and superseded Board was revived with the effect that Member in question was restored to his post---Validity---Term of office of the Member in question had almost expired by the time he filed a constitutional petition before the High Court challenging the supersession of the Board by the Patron---After supersession of the Board, Member in question remained mum for a period of almost three months without any explanation---Rule of acquiescence and principle of laches was attracted to the present case---Member in question never made an honest effort to seek the enforcement of any of his right, which even otherwise had extinguished with the term of his office as a Member of the Board of Governors coming to an end---Term of office of said Member had come to an end when his petition before the High Court came up for hearing and was decided, therefore, he lost his locus standi to maintain his petition; which could also be termed to have become infructuous---Appeal was dismissed accordingly and judgment of High Court was set aside.

State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

(e) Constitution of the Pakistan Cricket Board, 2014---

----Para. 39---Constitution of Pakistan, Art. 199---Pakistan Cricket Board ("Board")--- Contractual employees--- Removal from service---Constitutional petition under Art. 199 of the Constitution filed by contractual employees of the Board against their removal from service---Maintainability and competency---Services of contractual employees of the Board were not governed by any statutory rules and thus their constitutional petitions filed before the High Court were not competent; secondly, the employment of the said employees was contractual in nature and their services were terminated after due notice as per their contractual terms and conditions of service---Even on such account the constitutional petitions before the High Court were incompetent and had to fail---Appeal was allowed accordingly.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

Mrs. Asma Jehangir, Senior Advocate Supreme Court for Petitioners (in C.Ps. 784, 854 to 876 of 2014).

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Taffazul H. Rizvi, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioners (in C.P. 853 of 2014).

Sahibzada Ahmed Raza Kasuri, Senior Advocate Supreme Court for Petitioners (in Cr. O.Ps. 48 and 54 of 2014).

Sahibzada Ahmed Raza Kasuri, Senior Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondent No.1 (in C.Ps. 784, 854 to 857, 866, 868 and 873 of 2014).

Malik Muhammad Qayyum, Senior Advocate Supreme Court, M. Taffazul H. Rizvi, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Respondents Nos.2, 4, 5, 8 to 13 (in C.P. 784 of 2014).

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Syed Hasnain Ibrahim Kazmi, Advocate Supreme Court for Respondents (in C.Ps. 859 and 860 of 2014).

Raja Ghazanfar Ali Khan, Advocate Supreme Court for Respondent No.2 (in C.P. 875 of 2014).

Ghulam Asghar Khokhar, Advocate Supreme Court for Respondent No.1 (in C.Ps. 853 and 862 of 2014).

Salman Aslam Butt, Attorney-General for Pakistan, Waqas Rana, Advocate Supreme Court/Consultant to A.-G., Taimur Khan, Consultant to A.-G. and Najam Aziz Sethi in person for Federation.

Faisal Rai, Nebeel Edger Pace, Ehtisham, Irfan, Adnan Siddiqui, Akram Gillani and Ilyas Ahmed in persons.

Date of hearing: 21st July, 2014.

2014 S C M R 1591

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

ZAFAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.966-L of 2012, decided on 7th January, 2013.

(On appeal from the order dated 29-11-2012 in Criminal Miscellaneous No.8702-B of 2012 passed by the Lahore High Court, Lahore)

Criminal Procedure Code (V of 1898)---

----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, cancellation of---Conduct of accused---Abscondment for a lengthy period---Probability of absconsion---Promptly lodged F.I.R.---Specific nomination in the F.I.R.---Effect---Accused along with his co-accused was alleged to have fired at and murdered the deceased---High Court allowed bail to accused---Validity---F.I.R. was recorded within one hour of the incident, wherein accused was specifically nominated for firing at and killing the deceased---Accused and one of the co-accused were the main accused who were allegedly responsible for the murder---Accused remained a fugitive from law for 1-1/2 years and was arrested at the airport trying to leave the country---Accused due to his conduct, had disentitled himself from bail as there were chances of his absconsion---During the period of his abscondment accused was also nominated in another F.I.R.---Co-accused, who had been attributed the fatal injury was still a proclaimed offender---Prima facie case was made out against the accused and he had failed to make out a case for further inquiry---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused by the High Court was cancelled.

Mian Abdul Quddus, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Ch. Zubair Ahmed Farooq, Additional P.-G. and Amanat Ali, ASI for the State.

Ch. Abdul Ghaffar, Advocate Supreme Court for Respondent No.2 (without caveat).

Date of hearing: 7th January, 2013.

2014 S C M R 1594

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

GHULAM HUSSAIN RAMZAN ALI---Appellant

Versus

COLLECTOR OF CUSTOMS (PREVENTIVE), KARACHI---Respondent

Civil Appeal No.427 of 2010 out of Civil Petition No.121-K of 2010, decided on 28th May, 2014.

(On appeal from the judgment dated 24-12-2009 of the High Court of Sindh at Karachi passed in Special Custom Reference Application No.49 of 2007)

(a) Customs Act (IV of 1969)---

----S. 196---General Clauses Act (X of 1897), S. 27---Reference to High Court, filing of---Limitation---Commencement of time for purposes of limitation---Scope---Judgment of Appellate Tribunal sent to counsel by registered post---Presumption that such judgment was served---Time for filing reference before High Court would start to run from the date of service of post---Appeal, in the present case, was dismissed by Appellate Tribunal on 17-2-1998, and record showed that judgment had been dispatched to the counsel from office of Appellate Tribunal on 26-2-1998 through registered post---Even otherwise counsel moved first application for supply of copy of judgment on 2-5-1998, i.e. almost seventy days after the appeal had been heard and dismissed---Second application was moved by the counsel after almost 13 months on 5-3-1999, and third application was moved after more than three years on 11-6-1999---Gross negligence was exercised by the counsel in not bothering for at least 70 days to find out as to why the decision had not allegedly reached his office---Reference filed before the High Court on 16-2-2007 in such circumstances was hopelessly time-barred---Appeal was dismissed accordingly.

Raja Kumari v. P. Subbarama Naidu AIR 2005 SC 109 = (2004) 8 SCC 774 ref.

(b) Customs Act (IV of 1969)---

----S. 158---Power of customs authorities to search baggage of a transit passenger---Scope---Under S. 158 of Customs Act, 1969, Customs Authorities had the jurisdiction to search the baggage of a transit passenger when he was leaving the customs station.

(c) Void order---

----Challenge to a void order---Limitation---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.

Messrs Blue Star Spinning Mills Limited v. Collector of Sales Tax and others 2013 SCMR 587 ref.

Sohail Muzaffar, Advocate Supreme Court for Appellant.

Raja Muhammad Iqbal, Advocate Supreme Court for Respondent.

Wazir Muhammad, Assistant Registrar, Custom Appellate Tribunal, Islamabad along with Rana Azhar, Assistant Registrar, Custom Appellate Tribunal, Lahore on Court's Notice.

Date of hearing: 28th May, 2014.

2014 S C M R 1603

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Amir Hami Muslim and Ijaz ahmed Chaudhry, JJ

Mst. NASREEN BIBI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.102 of 2012, decided on 16th January, 2013.

(Against the judgment dated 5-7-2011 passed by the Lahore High Court, Lahore in Criminal Appeal No.250 of 2006)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Sentence, reduction in---Narcotic found in different bags---Separate samples to be taken from each bag---Consolidated sample taken from all bags---Effect---Accused-lady was apprehended while in possession of four bags allegedly containing 40 kilograms of poast---Trial Court convicted accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced her imprisonment for life, which sentence was upheld by the High Court---Validity---F.I.R. and memo of recovery showed that a consolidated sample of five hundred grams was separated from the four bags and sent for testing---No separate sample had been secured (from each bag) and tested vis-à-vis the substance contained in each bag---Since only one consolidated sample was taken from the four bags, thus only one bag out of the four bags could be counted towards the guilt of accused---If four bags contained forty kilograms of poast, then one bag could be said to have contained ten kilograms of poast, and it was only such quantity which could be considered against the accused for the purposes of her conviction and sentence---Sentence of accused was reduced in such circumstances from imprisonment for life to that already undergone by her---Appeal was disposed of accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----S. 9---Possession of narcotic---Sample sent for examination---Narcotic found in different bags/packets---Samples had to be secured from every bag or packet of narcotic substance, and each such sample was to be separately tested by a chemical examiner.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

Mrs. Nighat Saeed Mughal, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Appellant.

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

Date of hearing: 16th January, 2013.

2014 S C M R 1605

[Supreme Court of Pakistan]

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

PEOPLE UNITY OF PIA EMPLOYEES CBA, KARACHI---Petitioner

Versus

The REGISTRAR OF TRADE UNIONS (NIRC) ISLAMABAD and another---Respondents

Civil Petition No.541 of 2014, decided on 12th May, 2014.

(On appeal against the Order dated 9-4-2014 passed by the Islamabad High Court, Islamabad, in Writ Petition No.1621 of 2014)

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

----Ss. 19(11), proviso & 19(9)(e)--- Constitution of Pakistan, Art.185(3)---Trade union---Membership of more than 5000 members and presence in more than one Province---Entitled to function as Collective Bargaining Agent ("CBA") for a term of 3 years---Procedure to be adopted by such trade union for seeking benefit of 3 years---In terms of proviso to S. 19(11) of Industrial Relations Act, 2012, a trade union claiming membership of more than 5000 and having presence in more than one province was required to provide details before holding of the Referendum and once such details were available, the Registrar, in law, was required to extend the term of such trade union to act as CBA for three years by issuance of a certificate, as contemplated in S.19(9)(e) of the Industrial Relations Act, 2012---Such trade union, however, shall not automatically get the term of three years to act as CBA---Trade union claiming three years term must approach the Registrar with an application within reasonable time, in case the Registrar did not issue the requisite certificate for the term of three years.

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

----Ss. 19(11), proviso & 19(9)(e)---Trade union---Benefit of functioning as Collective Bargaining Agent ("CBA") for a term of 3 years---Delay in approaching Registrar for availing such benefit---Effect---Trade union in question claimed that it had a membership of more than 5000 and had presence in more than one Province, thus it was entitled to function as CBA for a term of three years in terms of proviso to S. 19(11) of Industrial Relations Act, 2012---Validity---Trade union in question won the Referendum but did not approach the Registrar to avail benefit of acting as CBA for 3 years in terms of proviso to S. 19(11) of Industrial Relations Act, 2012---Trade union remained mum on this issue and only approached the Registrar when its term to act as CBA had expired---Additionally on the date of Referendum, the Registrar had examined the number of members of the trade union which was not more than 5000 so as to grant it the benefit of a 3 years term to act as CBA---Issue of number of members claimed by the trade union ought to have been agitated before the relevant forum, the moment the trade union was declared as CBA, but the same was not done for more than 20 months and the Registrar had already announced the date of (next) Referendum---Trade union in question could not avail the benefit of proviso to S. 19(11) of Industrial Relations Act, 2012, in such circumstances---Petition for leave to appeal was dismissed accordingly and leave was refused.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, M.A. Ghani Ch., Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Abdul Hafeez Amjad, Advocate Supreme Court for Respondent No.2.

Date of hearing: 12th May, 2014.

2014 S C M R 1609

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J. and Amir Hani Muslim, J

LETTER FROM DG, PUNJAB JUDICIAL ACADEMY, LAHORE: In the matter of

Criminal Miscellaneous Application No.504 of 2014 in Criminal Appeals Nos.405 and 406 of 2012, decided on 8th August, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Criminal Procedure Code (V of 1898), S. 497 & Sched. II---Constitution of Pakistan, Art. 188---Review application---Rectification of bail granting order by Supreme Court---Whether S.13 of Pakistan Arms Ordinance, 1965, a non-bailable offence in the Province of Punjab---Supreme Court had granted bail to the accused by observing that the Province of Punjab had brought an amendment whereby the offence under S.13 of the Pakistan Arms Ordinance, 1965, had been made non-bailable---Held, no such amendment had been made as stated by the Law and Parliamentary Affairs Department, Government of Punjab--- Supreme Court directed that Supreme Court's observations in the bail granting order regarding S.13 of the Pakistan Arms Ordinance, 1965, being non-bailable, was rectified to the extent that "no amendment had been made in S.13 of the Ordinance in the Province of Punjab to make the said offence non-bailable"---Application was disposed of accordingly with observation that present rectification did not affect the decision in appeal.

Syed Khurshid Anwar Rizvi, DG Punjab Judicial Academy and Zahid Yousaf Qureshi, Additional AG, Khyber Pakhtunkhwa attended.

Date of hearing: 8th August, 2014.

2014 S C M R 1611

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ijaz Ahmed Chaudhry, JJ

PROVINCE OF PUNJAB through Secretary Revenue and others---Petitioners

Versus

DISTRICT BAR ASSOCIATION, KHANEWAL and others---Respondents

Civil Petitions Nos.747-L of 2011 and 506-L of 2012, decided on 2nd July, 2014.

(On appeal from the judgment 15-3-2011 in W.P. No.12308 of 2010 passed by the Lahore High Court, Multan Bench, Multan and judgment dated 25-1-2012 in W.P. No.22257 of 2011 passed by the Lahore High Court, Lahore)

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Punjab Privatization Board Act (IV of 2010), Ss. 6(h), (i), 27 & 28(a)---Allotment of State land---Procedure---Public auction---Directive of Chief Minister to allot State land---Status---Allotment of State land to an individual or private organization through sale by private treaty---Legality---Housing scheme for lawyers---Chief Minister announced establishment of lawyers' colonies in districts concerned and directed the officers in the Revenue hierarchy to allot land for the housing schemes and assess price thereof---Matter remained pending on one pretext or other---Ultimately Bar Associations concerned filed constitutional petitions before the High Court, which were allowed and Bar Associations were declared absolute owners of the State land subject to payment of price of land---Validity---Grant/allotment of State land was not the right of an individual but, in fact, was a grace---No person had any right or title in the State land until a written order had been passed and allottee/grantee had lawfully taken over possession---In the present case, neither the land was allotted to the Bar Associations nor they lawfully acquired possession thereof---Record showed that summaries regarding allotment of land to Bar Associations were declined thrice by the Chief Minister---Allotment could not be said to be an allotment unless and until it was approved by the competent authority---Provincial Government had formulated a policy for sale/allotment of State land through public auction, thus Bar Associations in question were not entitled to any allotment---No special provision existed for allotment of land for housing scheme of lawyers---High Court had not considered the fact that Provincial Government could not make any sale of State land without observing the process chalked out in the relevant policy and the Punjab Privatization Act, 2010---Impugned judgment of High Court was set aside in circumstances---Appeal was allowed accordingly.

Human Rights Cases Nos.7581-P and 9059-P of 2009 and Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning, Karachi and others 2008 SCMR 105 ref.

Muddassar Khalid Abbasi, AAG, Syed Mashal Raza Kazmi and Qamar Abbas Sultan, Assistant Director (BOR) for Petitioners.

Syed Asghar Hussain Sabazwari, Advocate Supreme Court and S. Safdar Hussain, Advocate-on-Record for Respondents (in C.P. No.747-L of 2011).

Sh. Ahsanuddin, Advocate Supreme Court for Respondents (in C.P. No.506-L of 2012).

Nemo for Respondent No.2 (in C.P. No.506-L of 2012).

Nemo for Applicant (in C.M.A. No.3826 of 2012).

Date of hearing: 8th April, 2014.

2014 S C M R 1621

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Gulzar Ahmed and Iqbal Hameedur Rahman, JJ

Dr. Mian ANJUM HABIB and another---Appellants

Versus

WASEEM AHMED KHAN and another---Respondents

Civil Appeals Nos.285-L and 661 of 2010, decided on 24th April, 2014.

(On appeal against the judgment dated 25-6-2010 passed by the Lahore High Court, Lahore, in R.F.A. No.150 of 2007)

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Agreement to sell---Terms---Option to cancel agreement to sell by paying back earnest money---Scope---Alteration of terms of agreement to sell by subsequent agreement---Vendee/plaintiff entered into an agreement to buy a certain property from the vendor/defendant---Vendee paid earnest money for the property---Agreement to sell provided that vendor could cancel the agreement by making payment of double the amount of earnest money received---Subsequently both parties entered into another (second) agreement which provided that in case the vendor avoided registry/transfer of property, he would not only have to pay double the amount of earnest money received according to market value, but the vendee would also be entitled to approach the court for obtaining registry/transfer---Vendor refused to transfer the property as a result of which vendee filed a suit for specific performance of agreement to sell---Trial Court decreed the suit---Plea of vendor was that suit for specific performance of agreement was not maintainable as he had allegedly returned to the vendee double the amount of earnest money received, thus the agreement to sell stood cancelled---Validity---Second agreement allowed the vendee to approach the court for obtaining registry/transfer---As per said second agreement even if the vendor paid double the amount received by him as earnest money, the agreement to sell would not cease but would remain operative for the vendee to have it enforced through a court of law for obtaining registry/transfer of the property---As a consequence of the second agreement no option remained with the vendor to cancel the agreement to sell---Agreement to sell thus remained alive for its enforcement through a court of law---On filing the suit for specific performance, vendee had also deposited the balance sale consideration in court---Suit for specific performance had been rightly decreed by the Trial Court---Appeal was disposed of accordingly.

Amir Alam Khan, Senior Advocate Supreme Court for Appellants (in C.A. No.285-L of 2010).

Syed Najjam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Appellants (in C.A. No.661 of 2010).

Syed Najjam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Respondents (in C.A. No.285-L of 2010).

Amir Alam Khan, Senior Advocate Supreme Court for Respondents (in C.A. No.661 of 2010).

Date of hearing: 24th April, 2014.

2014 S C M R 1628

[Supreme Court of Pakistan]

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

FAYYAZ AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.1003-L of 2012, decided on 15th January, 2013.

(Against the order dated 21-12-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.18046-B of 2012)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art. 185(3)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal misconduct---Pre-arrest bail, grant of---Accused was an officer of the revenue department and allegation against him was that he registered a power of attorney attributed to the complainant, whereas complainant denied execution of any such power of attorney---Accused was not a beneficiary of such power of attorney and no particular allegation had been levelled against him that he accepted any illegal gratification in the matter---Anti Corruption Establishment had obtained verification regarding the relevant power of attorney from a lawyer in a foreign country, who confirmed that it was the complainant who had thumb marked the relevant power of attorney in his presence---Accused was exonerated in his departmental inquiry regarding the present matter---Accused had already joined investigation and nothing was to be recovered from his custody---Accused was a public servant and thus, there was little likelihood of his absconsion in case of admission to bail--- Arrest of accused in such circumstances was unnecessary---Petition for leave to appeal was converted into appeal and allowed, and consequently accused was admitted to pre-arrest bail.

Muhammad Ahsan Bhoon, Advocate Supreme Court with Petitioner in person.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Rana M. Nawaz, Circle Officer, Anti-Corruption, Sialkot for the State.

Complainant in person.

Date of hearing: 15th January, 2013.

2014 S C M R 1630

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, CJ., Amir Hani Muslim and Muhammad Ather Saeed, JJ

FEDERATION OF PAKISTAN through Secretary M/o Petroleum and Natural Resources and another---Appellants

Versus

DURRANI CERAMICS and others---Respondents

Civil Appeals Nos. 1540 - 1599 of 2013 and Civil Appeal No.21 of 2014, decided on 22nd August, 2014.

(On appeal from the judgment/order of the Peshawar High Court, Peshawar dated 13-6-2013 in Writ Petitions Nos.2582-P, 2880-P, 2457-P, 2546-P, 2578-P, 2653-P, 2804-P, 3050-P, 3156-P, 2654-P, 2579-P, 2750-P, 2831-P, 3022-P, 3023-P, 3089-P, 2454-P, 2455-P, 2459-P, 2738-P, 2740-P, 2801-P, 3051, 2581-P, 2583-P, 2584-P, 2613-P, 2728-P, 2802-P, 3087-P, 2456-P, 2523-P, 2585-P, 2611-P, 3380-P, 3088-P, 3090-P, 2577-P, 2580-P, 2739-P, 2881-P, 2941-P, 2976-P, 3270-P, 2612-P, 2911-P, 2913-P, 2940-P, 2987-P, 3104-P, 3228-P, 2395-P, 2424-P, 2910-P, 2974, 3214-P, 3227-P, 3229-P, 3271-P, 2514-P of 2012 and judgment dated 24-10-2013 passed by Peshawar High Court, Abbottabad Bench in Writ Petition No.788-A of 2012)

(a) Cess---

----Whether levy of a cess was a "tax" or a "fee"---Determination---Question whether a particular levy was a "tax" or a "fee" was decided by the courts upon examining the facts and circumstances of each case keeping in mind the criteria for holding the levy a "fee" or "tax"---Cess had been defined as a tax which raised revenue to be applied for a specific purpose---Nomenclature, however, would not be relevant and whether the imposition of a particular cess could be termed as a tax or fee would depend upon the nature of a levy---When cess was levied for a particular purpose; it could either be tax or fee depending upon the nature of the levy---Both were compulsory exaction of money by public authorities---Whereas "tax" was a common burden for raising revenue and upon collection became part of public revenue of the State, "fee" was exacted for a specific purpose and for rendering services or providing privilege to particular individuals or a class or a community or a specific area---However, the benefit so accrued may not be measurable in exactitude---So long as the "levy" was to the advantage of the payers, consequential benefit to the community at large would not render the levy a tax.

Vijayalashmi Rice Mill and others v. Commercial Tax Officers Palakol [2006] 6 SCC 763; Jindal Stainless Ltd. and others v. State of Haryana and others (AIR 2006 SC 2550); Australian Tape Manufacturers Association Limited v. Common Wealth of Australia [1993] 176 CLR 480; Sreenivasa General Traders v. State of Andhra Pradesh (AIR 1983 SC 1246); Messrs Shivalik Agro Poly Products (AIR 2004 SC 4393); Luton v. Lessels [2002] HCA 13 and Roy Morgan Research Pvt. Ltd. v. Commissioner of Taxation [2011] HCA 35) ref.

(b) Gas Infrastructure Development Cess Act (XXI of 2011)---

----Ss. 3, 4 & Second Sched.---Gas Infrastructure Development Cess ("the Cess"), levy of---Whether levy of said cess was a "tax" or a "fee"---Cess in question was to be utilized for specific purposes, namely, development of infrastructure of certain (gas) pipeline projects, Liquefied Natural Gas (LNG) or for price equalization of other imported alternative fuels including Liquefied Petroleum Gas (LPG)---Cess in question was not a common burden for raising revenue generally---Money so collected from levy of said cess was to be utilized for a specific purpose for the advantage and benefit of the consumers of gas---Cess in question was basically to be levied on all consumers of gas with certain exemptions, mainly domestic consumers, who only consumed 20.3 % of the total gas, whereas 76 % of the total gas was consumed by those from whom the cess in question was collected---Latter sector would mainly benefit from the said cess, as it would ensure continuous and increased supply of gas to such sector---Other consumers or the country as a whole would also benefit from the (gas pipeline) projects but the same was inconsequential compared to the advantage that would accrue to the payers i.e. those not exempted from the cess---In the Annual Budget Statement (Federal Budget 2013-14), Gas Infrastructure Development Cess had been listed as Non-Tax Revenue, thus on the Government's own showing, cess in question was not a tax---Appeal was dismissed accordingly.

(c) Gas Infrastructure Development Cess Act (XXI of 2011)---

----S. 3---Constitution of Pakistan, Art. 73 & Fourth Sched. Part I, Entries Nos. 43 to 53---Money Bill---Gas Infrastructure Development Cess Act, 2011 introduced (in the Parliament) as a Money Bill---Legality---Gas Infrastructure Development Cess was not a "tax" but a "fee"---Cess in question was not a tax covered by any Entry relating to imposition or levy of tax under Part-I of the Federal Legislative List, thus the Gas Infrastructure Development Cess Act, 2011, could not have been introduced as a money bill under Art. 73 of the Constitution---Gas Infrastructure Development Cess was, therefore, not validly levied in accordance with the Constitution---Appeal was dismissed accordingly.

(d) Interpretation of statutes---

----Words in a statute---Disjunctive meaning---Scope---Courts could assign disjunctive meaning to particular words in a statute---Such construction was permissible if it reflected the true intention of the Legislature and if to hold otherwise would render particular words in the statute either meaningless or lead to absurdity.

Abdul Razak v. Karachi Building Control Authority (PLD 1994 SC 512) ref.

(e) Interpretation of statutes---

----Words in a statute---Meaning assigned---Scope---Ordinary and natural meaning--- Basic rule for interpretation of statutes was to give the words their ordinary and natural meaning---Deviation from such rule was permissible only when it became necessary, for example to avoid or overcome absurdity or render certain words meaningless---Such exercise was undertaken when assigning the words their ordinary meaning did not reflect the true intention of the Legislature.

(f) Constitution of Pakistan---

----Fourth Sched. Part I, Entry No. 51---Federal Legislative List---"Taxes on mineral oil, natural gas and minerals for use in generation of nuclear energy"---Word "and", interpretation of---Conjunctive meaning---Plea that word "and" in Entry No.51 (Part I, Fourth Sched. to the Constitution) should be read as "or" for bringing out the true meaning of it as intended by the framers of the Constitution---Validity---By the use of "and" in between "natural gas" and "minerals" in Entry No.51 (Part I, Fourth Sched. to the Constitution), all the three items were to be read conjunctively with the words following them---In the said Entry "and" could have been substituted by "or" only if without the change absurd consequences would have followed---Restricting "mineral oil" or "natural gas" to their use in the generation of nuclear energy would not lead to any absurdity, thus Entry No.51 could only be accorded its natural meaning and the same should be read conjunctively.

(g) Constitution---

----Living document---Constitution was a living document which catered for future development and progress.

(h) Taxation---

----Double taxation, imposition of---Scope---Double taxation could be imposed only by clear and specific language and not by implication.

Pakistan Industrial Development Corporation v. Pakistan through Secretary Ministry of Finance 1992 SCMR 891 ref.

(i) Constitution of Pakistan---

----Art. 160(3)---Taxes "raised" under the authority of Parliament---Meaning---Word "raise" appearing in Art. 160(3) of the Constitution referred to taxes levied by or under the authority of Parliament---Said Article did not provide for imposition of "tax" but referred to taxes that were collected and gathered under the authority of the Parliament.

Salman Aslam Butt, AGP, Muhammad Waqar Rana, Advocate Supreme Court assisted by Sardar Dil Nawaz Cheema, Advocate, Nazir Malik, Director (Law) M/o Petroleum, Hassan Mehmood, Director (Gas) and Salman Akram Raja, Advocate Supreme Court assisted by Husnain Arshad, Bilal Bashir, Ms. Zainab Qureshi, Neshay Aqueel and Muhammad Shakeel Mughal, Advocates for Appellants.

Abid S. Zuberi, Advocate Supreme Court assisted by Ayan Memon and M. Munir Khan, Advocates for Respondent No.4 (in C.A. 1540 of 2013).

Ahmed Nawaz Chaudhry, Advocate-on-Record/Advocate Supreme Court for Respondent No.5 (in C.A. No.1540 of 2013).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court assisted by Saad Buttar, Advocate for Respondents Nos.4 to 29 (in C.A. No. 1541 of 2013).

Athar Minallah, Advocate Supreme Court for Respondent No.1 (in C.As. Nos.1542, 1544, 1549, 1551, 1558, 1563 to 1565, 1567, 1568, 1570, 1571, 1577 of 2013).

Athar Minallah, Advocate Supreme Court for Respondent No.2 (in C.As. Nos.1568 and 1592 of 2013).

Atif Ali Khan, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A. 1546 of 2013).

Haroon-ur-Rashid, Advocate Supreme Court for Respondent No.1 (in C.As. Nos.1552 and 1559 of 2013).

Haroon-ur-Rashid, Advocate Supreme Court for Respondents Nos.1, 4 to 13 (in C.A. No.1591 of 2013).

Haroon-ur-Rashid, Advocate Supreme Court for Respondent No.7 (C.A. No.1592 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondent No.1 (in C.As. Nos.1555, 1580 and 1587 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondent No.2 (in C.A. No.1553 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.1 and 2 (in C.A. No.1554 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.6 and 15 (in C.A. No.1560 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.1 to 5 (in C.A. No.1562 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.1 to 15 (in C.A. 1569 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondent No.2 (in C.As. Nos.1581 and 1585 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.2 to 7 (in C.A. No.1588 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Hashmi, Umair Malik, Saad Hashmi, Tanveer Niaz, Nader Mehboob, Zarnab and Shoaib, Advocates for Respondents Nos.1, 2, 3, 7, 9 and 10 (in C.A. 1597 of 2013).

Sardar Muhammad Ghazi, Advocate Supreme Court for Respondent No.1 (in C.As. Nos.1556 and 1557 of 2013).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.7, 8, 12 to 14 and 18 (in C.A. No.1560 of 2013).

Tasleem Hussain, Advocate-on-Record/Advocate Supreme Court for Respondent No.1 (in C.A. No.1572 of 2013).

Tasleem Hussain, Advocate-on-Record/Advocate Supreme Court for Respondents Nos.1 and 3 (in C.A. No.1592 of 2013).

Tariq Mahmood, Senior Advocate Supreme Court for Respondent No.1 (in C.A. No.1576 of 2013).

Syed Arshad Ali, Advocate Supreme Court for Respondent No.6 (in C.A. No.1592 of 2013).

Nemo for Respondents (in C.As. Nos.1543, 1545, 1547, 1548, 1550, 1561, 1562, 1566, 1569, 1573 to 1575, 1578, 1579, 1582 to 1584, 1586, 1589 to 1590, 1593 to 1596, 1598, 1599 of 2013 and 21 of 2014).

Zulfiqar Khalid Maluka, Advocate Supreme Court in C.M.As. Nos.970 to 972 in C.A. No.1540 of 2013.

Issac Ali Qazi, Advocate Supreme Court in C.M.A. No.1066 of 2014.

Ali Ahmed Khan Rana, Advocate Supreme Court in C.M.A. No.1091 of 2014.

Dates of hearing: 12th, 14th, 17th to 19th February, 4th and 5th March, 2014.

2014 S C M R 1658

[Supreme Court of Pakistan]

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

MUHAMMAD NADEEM WAQAS and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.814 and 815 of 2006, decided on 1st January, 2013.

(On appeal from the judgment dated 7-9-2005 in Criminal Appeals Nos.2010 and 2011 of 2000, Murder Reference No.151 of 2001 passed by the Lahore High Court, Lahore)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Motive not proved---Two convicts sentenced to death for murder of one deceased---Effect---Accused and co-accused allegedly inflicted dattar blows to deceased and murdered him---Motive for the incident was that deceased had abused and slapped accused's father prior to the incident---Accused and co-accused were sentenced to death by Trial Court, which conviction was maintained by the High Court---Validity---Motive part of the prosecution story was not proved and remained shrouded in mystery---Prosecution witnesses had admittedly not seen the motive incident and were not present at the time---Question as to what provoked the accused and co-accused to cause multiple injuries with dattar on the body of deceased was not known to any one, thus it was a mitigating circumstance for showing leniency in favour of accused and co-accused in the matter of their sentences---Even otherwise, two persons (accused and co-accused) had been sentenced to death for the murder of one deceased, which in peculiar circumstances of the case was a bit harsh---Supreme Court maintained conviction of accused and co-accused under S. 302(b), P.P.C. but reduced their sentence from death to imprisonment for life with direction to pay compensation of Rs.50,000 each to legal heirs of deceased---Appeal was disposed of accordingly.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.814 of 2006).

Ch. Muhammad Anwar Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No.815 of 2006).

Mian Muhammad Sikandar Hayat, Advocate Supreme Court for the Complainant.

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

Date of hearing: 1st January, 2013.

2014 S C M R 1662

[Supreme Court of Pakistan]

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

Messrs NICE 'N' EASY FASHION (PVT.) LTD. and others---Appellants

Versus

ALLIED BANK OF PAKISTAN and another---Respondents

Civil Appeal No.189 of 2006, decided on 3rd June, 2014.

(On review against the order dated 5-4-2005 passed by the Lahore High Court, Lahore in E.F.A. No.469 of 2004)

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

----S. 19(7)---Civil Procedure Code (V of 1908). O. XXI, Rr. 89 & 90---Recovery suit--- Auction of judgment-debtor's property---Legality---Objection petition filed by judgment-debtor contending that auction process was irregular and illegal---Validity---Bid sheet was prepared by the auctioneer appointed by the Banking Court, who conducted the auction proceedings and submitted his detailed report---Said report reflected that proper steps were taken for conducting the auction proceedings and the highest bid was accepted, which was more than the value of the property shown by the judgment-debtor---Judgment-debtor contended that auction proceedings were irregular and illegal but filed an application before the Banking Court under S. 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001, instead of making an application under O. XXI, Rr. 89 & 90, C.P.C.---Even if objection petition of judgment-debtor was treated as an application under O.XXI, Rr.89 & 90, C.P.C., judgment-debtor had failed to deposit the amounts as mandated in the said Rules, without which the objections could not be entertained---Banking Court had issued notices in terms of S. 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 in the execution proceedings and thereafter it followed the inbuilt mechanism provided therein, which was summary in nature, thus the Banking Court was not bound to follow the procedure provided under O.XXI, C.P.C.---Highest bidder had deposited the auction amount within the stipulated time, and possession of property in dispute had already been delivered to the highest bidder---No inherent defect was found in the procedure adopted by the Banking Court in terms of S.19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Appeal was dismissed accordingly.

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

----O. XXI, Rr. 89 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19---Recovery suit---Sale of judgment debtor's property by auction---Objection application against such sale---Pre-requisites---Deposit of amount---Order XXI, Rr. 89 & 90, C.P.C. mandated that the objector should deposit the amounts mentioned in the said Rules along with the objection application---In the absence of the deposit, the application and or objection could not be entertained by a Banking Court.

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

----S. 19---Civil Procedure Code (V of 1908), O. XXI---Recovery suit---Sale of judgment-debtor's property by auction---Summary procedure---Once the Banking Court adopted the summary procedure provided under S. 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, it was not bound to follow the procedure provided under O.XXI, C.P.C. in execution proceedings.

Mahmood A. Sheikh, Advocate Supreme Court for Appellants.

Ashar Elahi, Advocate Supreme Court for Respondent No.1.

Khalid Jamil, Advocate Supreme Court for Respondent No.2.

Date of hearing: 3rd June, 2014.

2014 S C M R 1667

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Jawwad S. Khawaja, Asif Saeed Khan Khosa and Mushir Alam JJ

KAMRAN MURTAZA---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

Constitutional Petition No.65 of 2014, decided on 15th August, 2014.

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

Constitution of Pakistan---

----Arts. 2A, 17 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution--- Protest marches by political parties--- Democratic polity---Democratic constitutional dispensation---Saving of---Unconstitutional measures---Petitioner contended that the political standoff or impasse created by the protest marches had adversely affected all spheres of national life and that such a situation may prompt or embolden some authorities or functionaries to take undue advantage of the situation and to resort to some unconstitutional measures; that the Supreme Court should intervene in the matter so that the relevant issues may be resolved within the framework of the Constitution and the law and the democratic polity and dispensation of the Republic was not dislodged or derailed---Validity---Supreme Court directed that all the State authorities and functionaries should act only in accordance with the Constitution and the law guided by the principles enunciated in the case of Sindh High Court Bar Association v Federation of Pakistan (PLD 2009 SC 897) and they should restrain from acting in any manner unwarranted by the Constitution and the law.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 897 ref.

Petitioner in person.

Salman Aslam Butt, Attorney-General for Pakistan for the Federation.

Date of hearing: 15th August, 2014.

2014 S C M R 1669

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

MUNIR AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.207 of 2014, decided on 3rd June, 2014.

(On appeal against the order dated 17-4-2014 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No.1268-B of 2014)

Per Iqbal Hameedur Rahman, J.; Ejaz Afzal Khan, J. agreeing; Anwar Zaheer Jamali, J. dissenting.[Majority view]

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 353, 148, 149 & 186---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 185(3)---Firing upon a police party---Bail, grant of---Further inquiry---Absence of exit wound and fracture---No source of light mentioned in the F.I.R. for night identification---Accused was alleged to have fired at the complainant/police-official from a distance of 5 to 6 feet, causing an entry wound on the front shoulder, but Medico-legal Report showed that neither there was any exit wound nor any fracture---Absence of exit wound and fracture, prima facie showed that the shot was allegedly fired from a far off point, contrary to version in the F.I.R.---Further it was questionable as to why the raiding police party failed to react to the firing of the accused party---Occurrence took place in the night, but no source of light was mentioned in the F.I.R.---In such circumstances case was one of further inquiry---Accused was admitted to bail accordingly. [Minority view].

Per Anwar Zaheer Jamali, J.; disagreeing with Iqbal Hameedur Rahman, J. [Minority view]

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 148, 149 & 186---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 185(3)---Firing upon a police party---Bail, refusal of---F.I.R. was promptly lodged within about one hour of the occurrence---Accused was nominated in the F.I.R. with a specific role of making direct firing upon the complainant/police-official---Complainant suffered a serious injury on his shoulder, which was a vital part of the body, and he had no ulterior motive to spare the actual culprit and falsely implicate the accused---Injury sustained by complainant was fully supported from the medical and X-ray reports, which revealed that a piece of metal was found in the left shoulder of the complainant---Eye-witnesses of the occurrence, whose presence at the spot was admitted, had fully supported the prosecution case---Offence alleged against accused fell within the prohibitory clause of S. 497(1), Cr.P.C.---Recovery of crime weapon was made on pointation of accused, along with empties recovered from the place of occurrence---Petition for leave to appeal was dismissed in circumstances and accused was refused bail. [Minority view].

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

----S. 497---Bail---Principle---Exercise of discretion by courts below---Grant/refusal of bail---Not to be disturbed lightly---When courts below had exercised discretion based on proper appreciation of available case record for the purpose of grant or refusal of bail, then the applicable law was not to be disturbed lightly for the reason that another view of the matter was also possible, unless such exercise of discretion was found to be arbitrary, fanciful or was a result of misreading of record or the applicable provisions of law.

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

----S. 497---Bail---Appreciation of evidence---Scope---At bail stage deeper appreciation of evidence was not permissible.

Khadim Nadeem Malik, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmed Farooq, Additional P.-G. for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 3rd June, 2014.

2014 S C M R 1676

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ijaz Ahmed Chaudhry, JJ

PAKISTAN WAPDA EMPLOYEES PEGHAM UNION---Petitioner

Versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and others---Respondents

Civil Petition No.1700 of 2013, decided on 14th March, 2014.

(On appeal from the judgment dated 13-9-2013 in W.P. No.3472 of 2013 passed by the Islamabad High Court Islamabad)

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

----Ss. 7, 8 & 9---Constitution of Pakistan, Art. 185(3)---Registration of trade union---Allegations of corruption and malpractices against Registrar, Trade Unions---Not supported by documentary evidence---Effect---Registrar Trade Unions had registered the respondent-trade union after checking all documentation submitted with the application for registration--- Petitioner-union challenged registration of respondent-union contending that Registrar had taken bribes and committed malpractices--- Petitioner-union had levelled bald allegations against the work of the Registrar office, which were not supported by any documentary evidence---After registration of respondent-union, a referendum was held for the election of Collective Bargaining Agent, and the respondent-union defeated the petitioner-union by a thumping majority--- Petition for leave to appeal was dismissed in circumstances and leave was refused.

Messrs Hakimsons Chemical Industries (Pvt.) Ltd. v. The Registrar of Trade Unions (West), Government of Sindh 1999 SCMR 234 ref.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Maintainability---Factual controversies---High Court could not resolve factual controversies in its constitutional jurisdiction.

M.A. Ghani Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M.S. Khattak, Advocate-on-Record and Sohail Mehmood, D.A.-G. for Respondent No.2 on Court's Notice.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court for Respondent No.3.

Date of hearing: 14th March, 2014.

2014 S C M R 1683

[Supreme Court of Pakistan]

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

MUHAMMAD AZAM---Appellant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.461 of 2014 and Criminal Appeal No.305 of 2014, decided on 11th August, 2014.

(Against the judgment dated 22-4-2014 passed by the High Court of Balochistan, Quetta in Criminal Revision No.128 of 2013)

Penal Code (XLV of 1860)---

----Ss. 392 & 34---Robbery, common intention---Reappraisal of evidence---Prosecution witnesses not implicating the accused---Conviction nonetheless--- Effect--- Presumptive, speculative and conjectural appreciation of evidence by courts below---Accused and co-accused were alleged to have hired a motorcar from the complainant and subsequently snatched the same---Motor car was recovered from a different city---Accused was convicted under Ss. 392 & 34, P.P.C., and sentenced to three years' imprisonment with a fine of Rs.20,000---Appeal filed by accused before the Sessions Court was dismissed---Revision petition filed before the High Court was also dismissed---Validity---Complainant, who was the only eyewitness of the robbery, appeared as a prosecution witness and categorically stated before the Trial Court that accused was not one of the persons who had snatched away the motorcar from him, and was completely innocent in the matter---Other prosecution witnesses, including witness of recovery made statements before the Trial Court to the effect that accused was innocent and that he had not committed any offence; that the stolen motorcar had not been recovered from physical possession of the accused, and that at the time of the alleged recovery accused was merely present in the street wherefrom the stolen motorcar had been recovered---All said statements made by different prosecution witnesses before the Trial Court had gone a long way in establishing that the prosecution had utterly and miserably failed to prove its case against the accused beyond reasonable doubt---Supreme Court observed that Judge-in-Chamber of the High Court had clearly referred to the different aspects of the case but despite that the Judge-in-Chamber had concluded in favour of the prosecution, which conclusion was presumptive, speculative and conjectural at best; that in the circumstances of the present case no reasonable court could have arrived at such a conclusion and that such conclusion was possible only when the settled legal principles governing appreciation of evidence in criminal cases were applied inversely and the facts of the present case were appreciated and assessed with jaundiced perceptions and perverted sense of justice---Appeal was allowed and conviction and sentence of accused were set aside and he was acquitted of the charge.

Mir Aurangzaib, Advocate Supreme Court/Advocate-on-Record for Appellant.

Tahir Iqbal Khattak, Deputy Prosecutor-General, Balochistan for the State.

Date of hearing: 11th August, 2014.

2014 S C M R 1687

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

CHIEF COMMISSIONER, INLAND REVENUE and another---Petitioners

Versus

MUHAMMAD AFZAL KHAN and others---Respondents

Civil Petition No.908 of 2014, decided on 8th July, 2014.

(On appeal from the judgment of the Lahore High Court, Lahore dated 19-2-2014 passed in I.C.A. 303 of 2011)

Constitution of Pakistan---

----Arts. 25, 185(3) & 199---Civil Service---Similar posts in different departments performing similar functions---Up-gradation of posts---Uniformity---Discrimination---Respondents were appointed as Senior Auditors (BPS-16) in the Sales Tax Department---After reconfiguration of tax department respondents were re-designated as Inland Revenue Audit Officers---Respondents filed a constitutional petition before the High Court for up-gradation of their posts on the analogy of up-gradation of posts to BPS-18 of Audit Officers in other departments like Auditor General of Pakistan, Accountant-General Punjab and Controller General of Accounts---Constitutional petition was allowed by the High Court on the grounds that respondents performed similar functions to that of Audit Officers in the other said departments, thus, refusal to grant them BPS-18 would amount to discrimination, and that Paragraph 2(a) of the Office Memorandum dated 20-1-2001 provided for uniformity in the up-gradation of similar posts in different departments of similar nature---Validity---Supreme Court granted leave to appeal to consider inter alia whether the constitutional petition filed by the respondents before the High Court was maintainable, as its subject matter related to the terms and conditions of service of the respondents and thus within the exclusive jurisdiction of the Service Tribunal; whether Paragraph No. 2(a) of the Office Memorandum dated 20-1-2001, could be construed in a manner that the up-gradation of a post in one department of the Government would furnish a ground to the officers performing similar job in other departments for up-gradation of the post, as the said provision provided that up-gradation could only be made if it was considered to be necessary for bringing about rationalism in the administrative structure; whether maintaining the impugned judgment of the High Court would bring about anomalies within the Inland Revenue Department as the respondents may as a result rank senior to other officers to whom they were subordinate; and whether the respondents could have been granted up-gradation from BPS-16 to BPS-18 when in the meanwhile their posts had already been upgraded to BPS-17 on 14-4-2012.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ibrar Ahmed, Advocate Supreme Court for Petitioners.

Hamid Khan, Senior Advocate Supreme Court for Respondents Nos.1 to 39.

Date of hearing: 8th July, 2014.

2014 S C M R 1689

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

MUREED HUSSAIN---Appellant

Versus

The STATE through Prosecutor-General Sindh---Respondent

Criminal Appeal No.58-K of 2013, decided on 21st August, 2014.

(On appeal against the judgment of the High Court of Sindh, Karachi dated 9-9-2013 passed in Criminal Appeal No.267 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd---Reappraisal of evidence---Benefit of doubt---Contradictions between version of complainant and prosecution witnesses---Presence of complainant and prosecution witnesses at scene of occurrence doubtful---Effect---Accused allegedly fired at and murdered the deceased---Trial Court convicted accused under S.302(b), P.P.C and sentenced him to imprisonment for life---High Court dismissed appeal filed by accused against his conviction---Validity---Contradictions existed between the version of complainant and prosecution witnesses in relation to the incident---Complainant admitted before the investigating officer that during the incident he had fired in the air, however prosecution witnesses stated that it was the co-accused who fired in the air---Co-accused was let off during investigation and was never charged---Weapon and crime empties were recovered on different dates and kept in police custody, where after they were sent for forensic tests---Results of forensic tests would be inconclusive in such circumstances---Record showed that prosecution witnesses were not eye-witnesses of the occurrence and came to the scene after the fatal shot had been fired---Presence of complainant at the scene of occurrence was also doubtful---Benefit of doubt had to be given to the accused in such circumstances---Appeal was allowed and accused was acquitted of the charge.

Habib Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Saleem Akhtar, Additional P.-G. Sindh for Respondent.

Complainant in person.

Date of hearing: 6th August, 2014.

2014 S C M R 1694

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Gulzar Ahmed and Muhammad Ather Saeed, JJ

Sheikh SALEEM---Petitioner

Versus

Mrs. SHAMIM ATTAULLAH KHAN and others---Respondents

C.P. No. 262-K of 2014, decided on 13th August, 2014.

(Against the order dated 6-5-2014 passed by High Court of Sindh in C.P. No.S-745 of 2011)

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

----S. 20---Civil Procedure Code (V of 1908), S. 24-A---Rent case---Transfer of rent case to another court---Applicability of S. 24-A, C.P.C.---Scope---Provisions of C.P.C. may not be applicable in rent proceedings stricto sensu but the equitable principles of C.P.C. would always be applicable in order to do complete justice between the parties and also to meet the ends of natural justice---Section 24-A of C.P.C. was meant for expeditious disposal of cases and it obliged the parties to the proceedings not only to keep track of the case but also about the date fixed in the matter---Said provision was an equitable principle to foster the interest of justice by providing expeditious disposal of the case, and thus would be equally applicable in rent proceedings under the Sindh Rented Premises Ordinance, 1979, because the underlying feature of the said Ordinance was to provide special forum for expeditious disposal of disputes between the landlord and tenant.

Khyber Insurance Company Ltd. v. Pakistan National Shipping Corporation PLD 1994 SC 725 ref.

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

----S. 24-A---Scope of S.24-A, C.P.C.---Section 24-A of C.P.C. was meant for expeditious disposal of cases and it obliged the parties to the proceedings not only to keep track of the case but also about the date fixed in the matter---Said provision was an equitable principle to foster the interest of justice by providing expeditious disposal of the case.

Nadeem Azhar Siddiqui, Advocate Supreme Court and Mrs. Shiraz Iqbal Choudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th August, 2014.

2014 S C M R 1698

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

MUHAMMAD RAFIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.335 of 2004, decided on 4th June, 2014.

(Against the judgment dated 25-11-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.730 of 1997)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Reappraisal of evidence---Benefit of doubt---Chance and related witnesses---Delay in lodging F.I.R. and conducting post-mortem examination---Blood-stained earth not collected---Motive not proved---Medical evidence not corroborating ocular account---Ocular account was furnished by two witnesses, father and brother-in-law of the deceased, who were chance witnesses and related to the deceased and did not receive any independent corroboration or support---Said witnesses claimed that although they lived one kilometer away from the place of occurrence, but on the day of the incident they were present near the spot because they were working as labourers at a project near the place of occurrence---Before Trial Court said witnesses failed to establish the reason for their presence near the spot at the relevant time inasmuch as they failed to give any detail either of the projects they were working on or the name of the contractor who had hired them as labourers for the project---Formal site plan prepared by the patwari concerned did not show any under construction project close to the place of occurrence---F.I.R. was lodged with a noticeable delay and post-mortem examination was conducted belatedly on the following afternoon---Possibility existed that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution---Motive set up by the prosecution for the occurrence was ruled out of consideration by the courts below---Although a firearm was recovered from the accused, but in the absence of any crime empty such recovery was legally inconsequential---Distance from which shot was fired at deceased as alleged by the eye-witnesses did not find corroboration form the medical evidence---Prosecution failed to prove its case against the accused beyond any reasonable doubt---Accused was acquitted of the charge in circumstances by extending him benefit of doubt.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 4th June, 2014.

2014 S C M R 1723

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ejaz Afzal Khan, JJ

Professor Dr. MUHAMMAD ASLAM BALOCH---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Health Department and others---Respondents

Civil Petition No.1103 of 2013, decided on 6th August, 2014.

(On appeal against the judgment dated 13-6-2014 passed by the Balochistan Service Tribunal, Quetta in Service Appeal No.221 of 2013)

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Constitution of Pakistan, Art. 212(3)---Date of birth, alteration of---Procedure---Representation/application for change of date of birth---Not to be entertained after a period of two years from the date of such entry in the service record---Civil servant/petitioner was appointed as Assistant Professor (BS-18) vide notification dated 6-3-1991---Date of birth of civil servant/petitioner was recorded as 16-11-1951 in his service record---Civil servant submitted an application before the competent authority in the year 2004 for change of his date of birth from 16-11-1951 to 16-11-1954---Inquiry Committee was constituted in terms of R. 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, which recommended alteration of date of birth in the service record of the civil servant--- Consequently notification notifying alteration in date of birth in the service record of civil servant was issued---Legality---Rule 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 stated that date of birth of civil servant once recorded at the time of joining of Government service shall be final and would not be altered except where a clerical mistake occurred in recording the same in the service record; and that a request of a civil servant for change of his date of birth shall not be entertained after a period of two years from the date of such entry in his service record---Civil servant, in the present case joined service on 6-3-1991 and since then up to the year 2004, he never objected to his date of birth in the service record---Rule 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 did not authorize the competent authority to entertain representation of the civil servant in question for altering his date of birth as it was made beyond the period of two years mentioned in the said rule---Before civil servant challenged his date of birth in the year 2004, his department had issued seniority lists at different times in which date of birth of civil servant was mentioned as 16-11-1951, but he never objected to the same---Civil servant got his date of birth altered through fabricated documents when he was at the verge of retirement in the year 2011---Supreme Court expressed its displeasure over the manner in which Inquiry Committee had extended favour to the civil servant and recommended alteration in date of birth in the service record against the language of R. 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, and by relying on duplicate educational certificate and National Identity Card, which documents were obtained by foul play and could not be construed as conclusive proof for determining date of birth---Supreme Court directed competent authority to issue notification of retirement of civil servant (as he had attained the age of superannuation in the year 2011 in terms of his original date of birth), and recover salaries paid to him from his proposed pensionary benefits---Petition for leave to appeal was dismissed accordingly.

Kamran Murtaza, Advocate Supreme Court for Petitioner.

M. Farid Dogar, A.A.-G. Balochistan for Respondents.

Date of hearing: 6th August, 2014.

2014 S C M R 1741

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Gulzar Ahmed and Muhammad Ather Saeed, JJ

SAJJAD HUSSAIN MUKHI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.85-K of 2014, decided on 12th August, 2014.

(Against the judgment dated 3-2-2014 passed by High Court of Sindh in Criminal Acquittal Appeal No.48 of 2013)

Criminal Procedure Code (V of 1898)---

----S. 200---Constitution of Pakistan, Art. 185(3)---Dispute regarding property---Civil proceedings, initiation of--- Stay of criminal proceedings---Scope---Where both parties had filed suits regarding disputed property, and the same were pending, the criminal court would obviously stay its hands in entering upon the dispute, as deciding the dispute with regard to properties squarely fell within the domain of the civil court---Petition for leave to appeal was dismissed accordingly.

Anwar Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 12th August, 2014.

2014 S C M R 1744

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Mushir Alam, JJ

TASSADUQ HUSSAIN---Petitioner

Versus

Mst. MUNEER FATIMA---Respondent

Civil Petition No.709 of 2014, decided on 20th August, 2014.

(On appeal from judgment dated 14-4-2014 of the Lahore High Court, Rawalpindi Bench, passed in F.A.O. No.130 of 2012)

(a) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17---Constitution of Pakistan, Art. 185(3)---Eviction of tenant---Relationship of landlord and tenant denied---Purported sale agreement---Failure to prove authenticity of sale agreement---Rent Controller ordered eviction of tenant/petitioner from the disputed premises---Plea of tenant was that there was no relationship of landlady and tenant as he had purchased the disputed premises by way of a sale deed and had paid the consideration---Validity---Terms of the purported sale agreement exhibited by the tenant did not mention that he was put in possession on payment of the sale consideration mentioned therein---Tenant did not specifically plead in his written statement the date and time when he was put in possession of the premises in dispute nor he pleaded the mode through which he made payment towards the sale consideration---Petitioner had also not filed a suit for specific performance of the sale agreement against the landlady to perfect his title---Premises in dispute was still in the name of the landlady in the Cantonment Board---Relationship of landlady and tenant did exist between the parties---Tenant had failed to prove the factum of possession as owner of premises pursuant to a sale agreement---Petition for leave to appeal was dismissed accordingly.

Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434 distinguished.

(b) Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal, grant of---Scope---Findings of courts below based on proper appreciation of material---Supreme Court, in such circumstances, in exercise of its jurisdiction under Art. 185(3) of the Constitution, would not be inclined to grant leave to appeal.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Gulzarin Kiani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 20th August, 2014.

2014 S C M R 1762

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa, Sh. Azmat Saeed, Iqbal Hameedur Rahman and Dost Muhammad Khan, JJ

Criminal Appeal No.19 of 2012

(Against the order dated 5-7-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.7821-B of 2011)

SARWAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.32-L of 2012

(Against the order dated 8-3-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.470-B of 2012)

IFTIKHAR AHMED---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.82 of 2014

(Against the order dated 23-12-2013 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.1783-B of 2013)

NADEEM KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Petition No.397 of 2013

(Against the order dated 30-9-2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No.2088-B of 2013)

SHAUKAT ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.455 of 2013

(Against the order dated 10-9-2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No.2619-B of 2013)

MUKHTIAR HUSSAIN---Petitioner

Versus

ALLAH DITTA and others---Respondents

Criminal Appeals Nos.19, 32-L of 2012, 82 of 2014, Criminal Petitions Nos.397 and 455 of 2013, decided on 3rd October, 2014.

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

----Ss. 91, 204, 496, 497 & 498---Private complaint--- Summoning of accused by Trial Court to face trial---Ensuring future appearance before court---Requirement---Court may require accused to furnish a bond with or without sureties---Applying for pre-arrest bail not relevant---Principles.

Supreme Court formulated the following principles in relation to furnishing a bond under section 91, Cr.P.C, when an accused had been summoned by the Trial Court under section 204, Cr.P.C. to face trial in connection with a private complaint:

(i) Issuance of process by a court through summons for appearance of an accused person before the court neither amounted to arrest of the accused person nor it could ipso facto give rise to an apprehension of arrest on his part and, thus, such accused person could not apply for pre-arrest bail.

(ii) A process was issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence was of the "opinion" that there was "sufficient ground" for "proceeding" against the accused person. Opinion of a court about availability of sufficient ground for proceeding against an accused person could not be equated with appearance of "reasonable grounds" to the court for "believing" that he "has been guilty" of an offence within the contemplation of section 497(1), Cr.P.C. Due to such differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature became apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. were meant to cater for different situations.

(iii) If the court issuing process against an accused person decided to issue summons for appearance of the accused before it then the intention of the court was not to put the accused person under any restraint at that stage. If the accused person appeared before the court in response to the summons issued for his appearance then the court may require him to execute a bond, with or without sureties, so as to ensure his future appearance before the court as and when required.

(iv) If in response to the summons issued for his appearance the accused person appeared before the court but failed to submit the requisite bond for his future appearance to the satisfaction of the court or to provide the required sureties then the accused person may be committed by the court to custody till he submitted the requisite bond or provided the required sureties.

(v) If the process issued by a court against an accused person under section 204, Cr.P.C. was through a warrant, bailable or non-bailable, then the accused person may be under some kind or form of restraint and, therefore, he may apply for his pre-arrest bail if he so choose which may or may not be granted by the court depending upon the circumstances of the case, but even in such a case upon appearance of the accused person before the court he may, in the discretion of the court, be required by the court to execute a bond for his future appearance, with or without sureties, obviating the requirement of bail.

Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 approved.

Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 and Reham Dad v. Syed Mazhar Hussain Shah and others Criminal Appeal No.56 of 1986 affirmed.

Maqbool Ahmad and another v. The State and another 1997 PCr.LJ 1074; M. Siddique v. Rehmat and others 2001 PCr.LJ 1123; Ghulam Abbas v. State 2005 YLR 1043; Muhammad Ijaz v. Nadeem and 3 others PLD 2006 Lah. 227; Muhammad Yasin v. The State and another 2008 YLR 2197; The Crown v. Khushi Muhammad PLD 1953 Federal Court 170; Muhammad Muddasar v. The State and others 2011 SCMR 1513; Sadiq Ali v. The State PLD 1966 SC 589; Chiragh Shah and another v. The State 1969 SCMR 134; Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Jamal-ud-Din v. The State 1985 SCMR 1949; Meeran Bux v. The State PLD 1989 SC 347; Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 and Khizer Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470 ref.

Wazir Khan and another v. The State 1987 PCr.LJ 532; Sajjad Hussain alias Basara v. Faqir Muhammad and another 1987 PCr.LJ 1898; Malik Anjum Farooq Paracha v. Manzur-ul-Haq and 5 others PLD 1992 Lah. 444; Noor Nabi and 3 others v. The State 2005 PCr.LJ 505; Zia-ur-Rehman Sajid v. Muhammad Aslam and another 2005 PCr.LJ 1706; Khizer Hayat v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Shaukat Rasool v. The State and another PLD 2009 Lah. 590; Luqman Ali v. Hazaro and another 2010 SCMR 611 and Amjad Iqbal v. Additional Sessions Judge, Bhalwal, District Sargodha and 9 others PLD 2012 Lah. 33 per incuriam.

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

----Ss. 54 & 55---Police Order [22 of 2002], Art. 4(1)(j)---Police Rules (1934), Rr. 24.1, 24.4, 24.7, 25.2(1), 25.2(2), 25.2(3), 26.1, 26.2 & 26.9---Arrest of accused during investigation---Not necessary---Even in cases of the most heinous offences the police was under no statutory obligation to necessarily and straightaway arrest an accused person during an investigation as long as he was joining the investigation and was cooperating with the same.

Abdul Qayyum v. S.H.O. Police Station Shalimar, Lahore 1993 PCr.LJ 91; Muhammad Shafi v. Muhammad Boota and another PLD 1975 Lah. 729; Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others PLD 1992 Kar. 358; Mst. Razia Pervez and another v. The Senior Superintendent of Police, Multan and 5 others 1992 PCr.LJ 131 and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

Azam Nazir Tarar, Advocate Supreme Court with appellants Nos.3 to 5 in person for Appellants (in Criminal Appeal No.19 of 2012).

Azam Nazir Tarar, Advocate Supreme Court with Appellants in person for Appellants (in Criminal Appeal No.32-L of 2012).

Ansar Nawaz Mirza, Advocate Supreme Court with Appellant in person for Appellants (in Criminal Appeal No.82 of 2014).

Petitioners in person (in Criminal Petition No.397 of 2013).

Nemo for Petitioners (in Criminal Petition No.455 of 2013).

Mian Muhammad Shafiq Bhandara, Advocate Supreme Court for the Complainant (in Criminal Appeal No.19 of 2012).

Raja Abdul Rehman, Advocate Supreme Court and Syed Ali Imran, Advocate Supreme Court for the Complainant (in Criminal Appeal No.32-L of 2012).

Nemo for the Complainant (in Criminal Appeal No.82 of 2014).

Nazir Ahmed Bhutta, Advocate Supreme Court for the Complainant (in Criminal Petition No.397 of 2013).

Nemo for the Complainant (in Criminal Petition No.455 of 2013).

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab and Ch. Abdul Waheed, Additional Prosecutor-General, Punjab for the State (in all cases).

Date of hearing: 29th September, 2014.

2014 S C M R 1819

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Gulzar Ahmed and Dost Muhammad Khan, JJ

AZIZ-UR-REHMAN and another---Petitioners

Versus

Haji AURANGZEB through Legal Heirs and another---Respondents

Civil Petition No.3 of 2014, decided on 5th September, 2014.

(Against the judgment dated 4-11-2013 of the Peshawar High Court, Abbottabad Bench passed in Civil Revision No.168 of 2011)

Constitution of Pakistan---

----Art. 185(3)---Appellate jurisdiction of the Supreme Court---Leave to appeal to Supreme Court---Scope---When the two courts of fact below i.e. Trial Court and the First Appellate Court had drawn their conclusions which were consistent with the evidence and there was no perversity or any defect in their judgments, then the Supreme Court was not required to embark upon any detailed examination of evidence while exercising jurisdiction under Art. 185(3) of the Constitution.

Muhammad Munir Peracha, Senior Advocate Supreme Court for Petitioners.

Khalil ur Rehman Khan Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 5th September, 2014.

2014 S C M R 1821

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Gulzar Ahmed, JJ

Haji ABDUL RAZIQ KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary M/O Commerce and Textile Industry, Islamabad and others---Respondents

Civil Petition No.1239 of 2014, decided on 25th July, 2014.

(Against the judgment dated 3-7-2014 passed by Islamabad High Court, Islamabad in I.C.A. No.193 of 2014)

Import Policy Order, 2013---

----Para. 4, proviso---Import of vehicles more than 5 years old---Banned under the Import Policy Order, 2013 ("Order")---Exception provided under proviso to Paragraph 4 of the "Order"---Scope---Said proviso made exception to application of the "Order" in respect of imports where Bill of Lading or Letters of Credit were issued or established prior to issuance of the "Order"---Benefit of exception provided under proviso to paragraph 4 of the "Order" would not be available for Letters of Credit issued or established after the "Order" had come into effect---Where the agreement to import goods comprised of more than one transaction and payments were to be effected by confirmed irrevocable Letters of Credit for each transaction, then exception under proviso to paragraph 4 of the "Order" would apply only to those transactions for which Letters of Credit were issued or established prior to the coming into effect of the "Order"---Exception under proviso to paragraph 4 of the "Order" did not make mention of documents like agreement between the importer and exporter nor did it refer to pro forma invoice of goods to be imported, thus said documents were irrelevant for purposes of the exception.

Mian Abdul Ghaffar, Advocate Supreme Court for Petitioner.

Farhat Nawaz Lodhi, Advocate Supreme Court for Respondents Nos.2 to 4.

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Respondent No.5.

Date of hearing: 25th July, 2014.

2014 S C M R 1827

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

NAZIR-UL-HASAN and 2 others---Petitioners

Versus

Syed ANWAR IQBAL and others---Respondents

Civil Petition No. 585-K of 2013, decided on 15th July, 2014.

(On appeal against the Order dated 22-8-2013 passed by the High Court of Sindh at Karachi in C.P. No.D-2682 of 2012)

Pakistan Standards Institution Recruitment Rules, 2012---

----Rr. 5 & 6---Promotion of Assistant Director to Deputy Director---Eligibility---Educational qualification---Petitioners and respondent were working as Assistant Directors (BS-17) in Pakistan Standards and Quality Control Authority ("Authority")---Petitioners held diplomas in various disciplines, while the respondent had a bachelor's degree in engineering---Petitioners, who were senior to the respondent were promoted to posts of Deputy Director (BS-18) in the year 2012---Respondent challenged promotion of petitioners by contending that they could not be promoted as they only held diplomas; that Pakistan Engineering Council had given its opinion/comments that a diploma could not be equated with a degree; that appointment of diploma-holders to posts involving professional engineering works was illegal---Validity---When petitioners were promoted, the relevant rules in force were the Pakistan Standards Institution Recruitment Rules, 2012--- Rule 5 of the said Recruitment Rules provided that posts of Deputy Director to be filled by promotion could be done from amongst the Assistant Directors with at least 5 years' service---Nowhere in the Pakistan Standards Institution Recruitment Rules, 2012 was it provided that promotees should be professional engineers---Requirement of a Master's or Bachelor's degree were only provided for direct appointees, and not promotees---Admittedly petitioners were appointed as Deputy Directors by promotion hence condition of Bachelor's degree could not be placed upon them, as in the case of direct appointees---Opinion/comments of Pakistan Engineering Council should not have influenced the matter of petitioners' promotion, as department/institution itself must determine as to whether the persons in its service were fit to hold a particular position--- Promotion of petitioners was upheld in circumstances---Appeal was allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and Mazhar Ali B. Chauhan, Advocate-on-Record for Petitioners.

Anwar Hussain, Advocate Supreme Court for Respondent No.1.

M. Aslam Butt, D.A.-G. on Court's Notice.

Abdul Ahad Larik, Assistant Registrar, PEC for Respondents Nos.5 and 6.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 15th July, 2014.

2014 S C M R 1830

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Muhammad Ather Saeed, JJ

JAVED PAREKH---Appellant

Versus

MUHAMMAD SAFDAR MALIK---Respondent

C.A. No. 79-K of 2013, decided on 23rd July, 2014.

(Against the judgment dated 30-1-2013 passed by the High Court of Sindh at Karachi in Ist Appeal No.4 of 2007)

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3(2)---Summary suit for recovery of money---Leave to defend granted---Conditional upon bank guarantee equivalent to the claimed amount---Substitution of bank guarantee by deposit of original title documents of property of equivalent value---Permissibility---Trial Court allowed application of defendant for leave to defend but made it conditional upon submission of bank guarantee equivalent to the amount claimed in the suit---Defendant made an application seeking substitution of bank guarantee with deposit of title documents of property of equivalent value---Said application was rejected by the Trial Court and High Court---Validity---Substitution of bank guarantee as security with original title documents of property of equivalent value ought to have been allowed in circumstances of the case---Issue relating to deposit of original title documents as security had already been decided by the Supreme Court when the case was remanded to the High Court with the direction to accept the original title documents of property as surety---Orders of High Court and Trial Court were set aside in circumstances and matter was remanded to the Trial Court with the direction that original title documents of property deposited by the defendant shall be treated as security for the purposes of grant of leave to defend---Appeal was allowed accordingly.

Anwar Hussain, Advocate Supreme Court for Appellant.

Respondent Ex parte.

Date of hearing: 23rd July, 2014.

2014 S C M R 1833

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

NATIONAL TELECOMMUNICATION CORPORATION through Chairman---Appellant/Petitioner

Versus

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

C.A. No. 283 of 2014 and Criminal O.P. No.32 of 2014, decided on 20th August, 2014.

(On appeal from the judgment dated 19-12-2013 passed by the Islamabad High Court, Islamabad in W.P. No.467 of 2012)

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 41(6) & 58---Industrial Relations Act (IX of 2012), Ss. 1, 87 & 88--- General Clauses Act (X of 1897), S. 8---Constitution of Pakistan, Art. 17(1)---Officers and employees of the National Telecommunication Corporation---Non-application of Industrial Relations Act, 2012---Industrial Relations Act, 2012 would not apply to the officers and employees of the National Telecommunication Corporation---Reference to Art. 17(1) of the Constitution would not help attract application of the Industrial Relations Act, 2012, to the officers and employees of the National Telecommunication Corporation notwithstanding it would not restrict their right to form associations or unions to voice their grievance and negotiate with their employers for better terms of their employment.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 ref.

Noor Muhammad v. The State PLD 1991 SC 150; Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others PLD 1991 Sc 143 and Amjad Qadoos v. The Chairman National Accountability Bureau (NAB) Islamabad and others Civil Petition No.669 of 2014 distinguished.

Syed Husnain Ibrahim Kazmi, Advocate Supreme Court for Appellant/Petitioner (in both cases).

Kh. Ahmed Hussain, D.A.-G. along with M.S. Khattak, Advocate-on-Record for Respondents Nos.1 to 3.

Salim Khan, Advocate Supreme Court for Respondent No.4.

Salman Riaz Ch., Advocate Supreme Court for Respondent No.5.

Date of hearing: 17th July, 2014 (Judgment Reserved)

2014 S C M R 1843

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

SOHAIL AHMED USMANI---Appellant

Versus

DIRECTOR-GENERAL PAKISTAN CIVIL AVIATION AUTHORITY and another---Respondents

Civil Appeal No.92-K of 2012, decided on 16th July, 2014.

Civil service---

----Reinstatement---Back benefits, entitlement to---Delay in completing and submitting most immediate and priority work---Appellant, who was an employee of the Civil Aviation Authority ("Authority") was awarded major penalty of dismissal from service since he failed to complete and submit priority work that was marked to him; that he was a habitual late comer and remained missing from office during working hours without intimation, and had availed frequent leaves---Appellate authority converted appellant's dismissal from service to compulsory retirement---Appellant filed constitutional petition before the High Court, which was allowed and appellant was reinstated in service on the ground that all charges against him, except that of late submission of priority work, remained unproved---High Court, however, directed that competent authority may impose any minor penalty upon the appellant in accordance with rules of the Authority, and that since appellant was not free from blemish and partly responsible, thus, he was not entitled to back benefits except for the purpose of seniority and counting of intervening period for pensionary benefits---Validity---High Court had not given any reason for holding the appellant partly responsible---Appellant had properly explained reasons for the delay in submitting priority work by stating that the nature of priority work was such that he did not have much experience in it; that there was considerable work load on him, but despite that he took out the time to accomplish the priority work assigned to him---Once the High Court had reinstated the appellant in service, it should have allowed the back benefits unless it was proved that the appellant had obtained a gainful employment during the period of dismissal or was making some earnings---Appeal was allowed accordingly and authority was directed to pay back benefits to the appellant from the date of his dismissal to the date of his reinstatement.

S. Mahmood Abbas, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Sanaullah Noor Ghouri, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondent No.2.

Dates of hearing: 15th and 16th July, 2014.

2014 S C M R 1849

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

LAHORE DEVELOPMENT AUTHORITY---Appellant

Versus

BASHIR A. MALIK and others---Respondents

Civil Appeal No.483-L of 2012, decided on 12th September, 2014.

(On appeal from judgment of Lahore High Court, Lahore, dated 6-10-2011, passed in I.C.A. No.15 of 2010)

Per Anwar Zaheer Jamali, J; dissenting with Ejaz Afzal Khan, J. [Minority view]

(a) Lahore Development Authority Building and Zoning Regulations, 2007---

----Regln. 10.9.3---Construction of commercial building---Completion certificate, issuance of---Minor violations of approved construction plan---Penalty---Issuance of completion certificate upon payment of penalty---Respondents applied for issuance of completion certificate in the office of Lahore Development Authority (LDA)---Survey was carried out by an official of LDA, who noted minor violations of the approved construction plan, which were compoundable upon payment of penalty---Director, LDA passed an order requiring respondents to pay a penalty of Rs. 33,992 for issuance of completion certificate---Respondents were willing to pay the said penalty, however the challan for payment of penalty was not issued by LDA on one pretext or another, and the matter remained pending for over three decades---Validity---Deviation/violations of the approved building plan were minor---Plot in question was commercial and could be used for commercial purposes, thus conversion of some flats in the building into shops was not a change in the use of building, but simply a violation of the construction plan, which was compoundable---Director, LDA had also accorded approval for regularization of violations of the approved building plan upon payment of penalty---No justified reason existed for LDA not to issue the challan for payment of penalty---High Court had rightly directed LDA to issue completion certificate to respondent upon payment of penalty---Appeal was dismissed accordingly. [Minority view].

(b) Penalty---

----Penalty, payment of---Quantum---Penalty imposed by public authority---Public authority at fault for delaying collection of penalty---Effect---Whether penalty to be calculated afresh at present rate---Where the public authority was at fault in delaying the collection of penalty, the defendant could not be burdened with any additional liability by calling upon him to pay penalty at the present rate (instead of the rate applicable at the time of imposing of penalty).

Noor-ul-Hassan Khan v. Lahore Development Authority 2013 CLC 100 ref.

Per Ejaz Afzal Khan, J.; Ijaz Ahmed Chaudhry, J. agreeing; Anwar Zaheer Jamali, J.; dissenting. [Majority view]

(c) Lahore Development Authority Building and Zoning Regulations, 2007---

----Regln. 10.9.3---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Construction of commercial building---Completion certificate, issuance of---Minor violations of approved construction plan---Penalty---Respondent claiming that Director General of Lahore Development Authority (LDA) had passed an order requiring respondent to pay a penalty before issuance of completion certificate---Lahore Development Authority (LDA) denied such claim of respondent---Whether Lahore Development Authority (LDA) had approved any penalty for issuance of completion certificate was a factual controversy, which could not be decided by the High Court under its constitutional jurisdiction---Question of whether such penalty was imposed or approved by the competent authority was disputed, therefore, High Court could not have passed an order under its constitutional jurisdiction directing LDA to issue challan for the penalty and thereafter issue completion certificate on its payment---Supreme Court set aside the order of the High Court and directed that constitutional petition filed before the High Court should be treated as a suit filed before the civil court, where the parties may raise all legal and factual objections---Appeal was allowed accordingly.

Ali Akbar Qureshi, Legal Advisor and Rana Tahir, Assistant Director LDA for Appellant.

Kh. Saeed-uz-Zafar, Advocate Supreme Court for Respondents.

Date of hearing: 2nd July, 2014.

2014 S C M R 1858

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja, Gulzar Ahmed, Iqbal Hameedur Rahman and Mushir Alam, JJ

CIVIL REVIEW PETITION NO.305 OF 2013

(Against the judgment dated 4-12-2013, passed by this Court in Constitution Petition No.5 of 2011)

IN

CONSTITUION PETITION NO.5 OF 2011

AND

CIVIL MISC. APPLICATION NO. 7997 OF 2013

(For permission to become a party in the Review Petition)

AND

CIVIL MISC. APPLICATION NO.270 OF 2014

(For suspension of the operation of letter dated 8-1-2014)

IN

CIVIL REVIEW PETITION NO.305 OF 2013

AND

CIVIL MISC. APPLICATION NO.746 OF 2014

(For restoration of C.M.A. No.221 of 2014)

IN

CIVIL MISC. APPLICATION NO.221 OF 2014

IN

CIVIL REVIEW PETITION NIL OF 2014

(Against the judgment dated 4-12-2013, passed by this Court in Constitution Petition No.5 of 2011)

IN

CONSTITUION PETITION NO.5 OF 2011

AND

CIVIL REVIEW PETITION NO.27 OF 2014

(Against dismissal of C.M.A. No. 6247 of 2013)

IN

CIVIL MISC. APPLICATION NO.6247 OF 2013

IN

CONSTITUTION PETITION NO.5 OF 2011

JAMSHORO JOINT VENTURE LTD. and others---Applicants/Petitioners

Versus

Khawaja MUHAMMAD ASIF and others---Respondents

Civil Review Petition No.305 of 2013 in Constitutional Petition No.5 of 2011 and Civil Miscellaneous Application No.7997 of 2013 and Civil Miscellaneous Application No.270 of 2014 in Civil Review Petition No.305 of 2013 and Civil Miscellaneous Application No.746 of 2014 in Civil Miscellaneous Application No.221 of 2014 in Civil Review Petition Nil of 2014 in Constitution Petition No.5 of 2011 and Civil Review Petition No.27 of 2014 in Civil Miscellaneous Application No.6247 of 2013 in Constitution Petition No.5 of 2011, decided on 4th June, 2014.

(a) Constitution of Pakistan---

----Art. 188---Review of Supreme Court Judgment---Award of a project by Sui Southern Gas Company Limited (SSGCL) to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquefied Petroleum Gas (LPG)---Undue and illegal favours given to JJVL---Material changes made to the Implementation Agreement to benefit JJVL---Deletion of a certain clause from the Implementation Agreement amounted to giving undue favour to JJVL, putting SSGCL in total disadvantageous position where it lost recourse of acquiring the LPG Plant in the event of default by JJVL---Approval of Board of Directors or the Finance Committee of Directors on deletion of said clause was never sought---Deletion of some other clauses from the Implementation Agreement, being a very material subject and having the consequence of materially changing the nature of the agreement was necessarily required to be placed before the Board of Directors of SSGCL, but the same was not done---Final draft of the Implementation Agreement to be signed between SSGCL and JJVL was neither approved by the Board of Directors of SSGCL nor the Ministry of Petroleum and Natural Resources was informed of the same---Term of original Implementation Agreement was restricted only upto 3-2-2011, but changes made therein extended it beyond such date upto the currency of the Gas Sales Agreement---Such change put JJVL in total advantageous position and left SSGCL with no opportunity to look for a better and more favourable deal from the one offered by JJVL--- Twenty one (21) months after the submission of the bid, JJVL was still unable to raise or firm up its financing and was seeking further indulgence from SSGCL for the comfort of JJVL's lenders---No approval of the Board of Directors of SSGCL was ever obtained for the material change in royalty payments which was the basic source of income for SSGCL---Similarly such change in the royalty payment was not advised to the Ministry of Petroleum and Natural Resources---JJVL submitted its Bid Bond late, but the same was still accepted by SSGCL---Minutes of Board meetings of SSGCL showed that there was no express reference to condoning the delay in submission of BID Bond by JJVL---Judgment under review thoroughly dealt with and discussed all the documents on record and there appeared to be no mis-reading or non-reading of record nor was there any error floating on the surface of record---Review petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 184(3)--- Supreme Court Rules, 1980, O. XXV---Constitutional petition under Art. 184(3) of the Constitution before the Supreme Court---Scope---Issue/subject not raised in the memo of Constitutional petition but argued by the counsel---Whether such issue/subject fell within the competence of the Supreme Court---Once the question on the subject which though not raised in the memo of Constitutional petition was argued by a counsel and such argument had important bearing on the subject not only on facts but also on law and the documents appearing on the record also showed relevancy of the argument; the Supreme Court would not in such a situation shrink from its responsibility by leaving the matter unattended---In dealing with such issues which were reflective of the record and had a bearing on facts and law, the Court would proceed to deal with the question on the available record as per law.

Qaiser Abbas v. Muslim Commercial Bank Ltd. and others 2013 SCMR 1034 distinguished.

(c) Constitution of Pakistan---

----Arts. 18 & 184(3)---Contract Act (IX of 1872), S. 2(h)---Freedom to contract---Fundamental right---Interference by court---Scope---Re-writing of a contract was not the job of the Court as it was within the domain of the parties to make any agreement/contract which was their Fundamental Right under Art. 18 of the Constitution---However, such right was not an unbridled one but was subject to qualification as prescribed by law, and the law applicable in general was the Contract Act, 1872.

(d) Constitution of Pakistan---

----Art. 184(3)--- Judicial review--- Scope--- Government bodies---Contractual powers---Principle of judicial review applied to the exercise of contractual powers by Government bodies in order to prevent arbitrariness, favouritism or violation of the terms of the tender and absence of transparency in the award of the contract---Court had the power to decide on the question of legality i.e. whether the authority had exceeded its powers, committed error of law, committed breach of rules of natural justice, reached a decision which a reasonable person could not have reached or abused its power.

Messrs Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others AIR 2000 SC 2272 ref.

(e) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before the Supreme Court---Scope---Suit pending before a court containing a matter raised in the constitutional petition---Effect--- Supreme Court while exercising jurisdiction under Art. 184(3) of the Constitution had ample power to adjudicate upon and consider the question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by the Constitution---Jurisdiction of the Supreme Court would not be fettered or restricted merely for the reason that some suit was pending on any of the questions involved in the constitutional petition for that would be of subordinate consideration when dealing with the question of public importance with reference to the enforcement of any of the Fundamental Rights which were of supreme importance and had a much wider connotation and implication to the public at large.

(f) Constitution of Pakistan---

----Arts. 185 & 188---Supreme Court---"Appellate jurisdiction"---"Review jurisdiction"---Distinct---Review could not be termed as an appeal---Jurisdiction of review and appeal were two separate remedial species under the law, jurisdiction of which was specifically conferred by law with its limits and boundaries---Scope of review by its very nature was not an appeal or re-hearing merely on the ground that one party conceived itself to be dissatisfied with the decision of the Court.

Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 ref.

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before the Supreme Court---Decision---Not appealable---Law had not provided for an appeal against a decision given by the Supreme Court under Art. 184(3) of the Constitution.

Kh. Ahmed Tariq Rahim, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Uzair Karamat Bhandari, Advocate Supreme Court for Petitioners/Applicants (in C.R.P. No.305 of 2013).

Qasim Mirjat, Additional A.-G. Sindh and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners/Applicants (in C.M.A. No. 7997 of 2013).

Kh. Ahmed Tariq Rahim, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners/Applicants (in C.M.A. No.270 of 2014).

Arshad Ali Chaudhry, Advocate-on-Record for Petitioners/Applicants (in C.M.A. No. 746 of 2014).

Muhammad Azhar Siddique, Advocate Supreme Court for Petitioners/Applicants (in C.R.P. No.27 of 2014).

Syed M. Attique Shah, Additional AGP for Federation.

M. Bilal, Senior Advocate Supreme Court for C.C.P.

Arshad Ali Chaudhry, Advocate-on-Record for the S.S.G.C.

Date of hearing: 4th June, 2014.

2014 S C M R 1728

[Supreme Court of India]

Present: Chandramauli Kr. Prasad and V. Gopala Gowda, JJ

MARY---Appellant

Versus

STATE OF KERALA and others---Respondents

Civil Appeal No.9466 of 2003, decided on 22nd October, 2013.

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

----S. 56---Doctrine of frustration---Applicability---Statutory contract---Performance of contract becoming impossible---Consequences for non-performance of statutory contract mentioned in the contract---Whether doctrine of frustration would apply---Appellant was a successful bidder in a tender for the right to vend arrack in certain shops---Appellant deposited 30% of the bid amount in accordance with relevant statutory rules regarding disposal of shops through auction ("auction rules")---Auction rules provided for forfeiture of earnest deposit money in case of breach of contract---After the bid deposit, it was discovered that the residents of the area were against the establishment of an arrack shop because of religious sentiments---Residents of the area offered physical resistance to the opening of shops and the law and order enforcing agencies could not assure smooth conduct of business---Appellant believed that it was impossible for her to run the arrack shop and she wrote to the administrative authorities requesting them to not to confirm the sale in her favour as it was impossible for her to execute the privilege for the reasons beyond her control---Appellant also requested to refund the deposit already paid on the plea that the proposed contract may be treated as rescinded---Department declined the request of the appellant to refund the deposit by virtue of the "auction rules" which allowed the State to forfeit the entire deposit amount---Further, a notice was issued to the appellant to deposit the rest sum of money and enter into a permanent agreement---Legality---Question for determination, in the present case, was whether the appellant could invoke the doctrine of frustration or impossibility or whether she would be bound by the terms of the statutory contract---Doctrine of frustration excluded ordinarily further performance where the contract was silent as to the position of the parties in the event of performance becoming literally impossible---However, a statutory contract in which party took absolute responsibility could not escape liability whatever may be the reason---In such a situation, events would not discharge the party from the consequence of non-performance of a contractual obligation---Further, in a case in which the consequences of non-performance of contract was provided in the statutory contract itself, the parties shall be bound by that and could not take shelter behind S. 56 of the Contract Act, 1872---Auction rules, in the present case, in no uncertain terms provided that "on the failure of the auction purchaser to make deposit" or "execute such agreement temporary or permanent" "the deposit already made by him towards earnest money and security shall be forfeited to Government"---Appellant had not carried out her obligations as provided in the auction rules and consequently the State was entitled under the auction rules to forfeit the security money---Appeal was dismissed accordingly.

Sushila Devi v. Hari Singh (1971) 2 SCC 288 : AIR 1971 SC 1756 and Har Prasad Choubey v. Union of India (1973) 2 SCC 746 : AIR 1973 SC 2380 distinguished.

(b) Contract---

----Doctrine of fairness or reasonableness---Not applicable to statutory or commercial contracts---Variation of terms of statutory contract on basis of doctrine of fairness not allowed.

Doctrine of fairness was nothing but a duty to act fairly and reasonably. It was a doctrine developed in the administrative law field to ensure rule of law and to prevent failure of justice where an action was administrative in nature. Where the function was quasi-judicial, the doctrine of fairness was evolved to ensure fair action. But, said doctrine certainly could not be invoked to amend, alter, or vary an express term of the contract between the parties. This was so even if the contract was governed by a statutory provision i.e. where it was a statutory contract. It was one thing to say that a statutory contract or for that matter, every contract must be construed reasonably, having regard to its language. But to strike down the terms of a statutory contract on the ground of unfairness was entirely different. Statutory contract could not be varied, added or altered by importing the doctrine of fairness. In a contract governed by a statute, a party took a calculated risk, and in law, it could not be relieved of the obligations undertaken by it under the contract.

Assistant Excise Commissioner and others v. Issac Peter and others (1994) 4 SCC 104 ; AIR 1994 SCW 2616 ref.

Doctrine of reasonableness or fairness could not apply in a commercial transaction.

Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and others (1986) 3 SCC 156 : AIR 1986 SC 1571 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and another 1991 Supp (1) SCC 600 : AIR 1991 SC 101 ref.

In a contract governed by a certain Act and the Rules made thereunder, the party undertook to abide by the terms and conditions of the Act and the Rules. In such a situation, the party could not invoke the doctrine of fairness or reasonableness.

Subramonium Prasad for Appellant.

G. Prakash for Respondents.

2014 S C M R 1748

[Supreme Court of India]

Present: T.S. Thakur and Vikramajit Sen, JJ

Messrs KULJA INDUSTRIES LIMITED---Appellant

Versus

CHIEF GENERAL MANAGER, W.T. PROJECT, BSNL and others---Respondents

Civil Appeal No.8944 of 2013 (arising out of S.L.P. (C) No.20716 of 2011), decided on 4th October, 2013.

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

----S. 23---Contractor/supplier performing work for State-owned company--- Breach on part of contactor---Power to blacklist contractor---Scope---Decision of State to blacklist contractor---Subject to judicial review on the touchstone of the principles of natural justice and doctrine of proportionality.

Power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of any other work whatsoever was inherent in the party allotting the contract. There was no need for any such power being specifically conferred by statute or reserved by contractor. That was because 'blacklisting' simply signified a business decision by which the party affected by the breach decided not to enter into any contractual relationship with the party committing the breach. Between two private parties the right to take any such decision was absolute and untrammeled by any constraints whatsoever. The freedom to contract or not to contract was unqualified in the case of private parties. But any such decision was subject to judicial review when the same was taken by the State or any of its instrumentalities. Any such decision would be open to scrutiny not only on the touchstone of the principles of natural justice but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus became an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence was similarly examinable by the Court (in its power of judicial review under the Constitution).

Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another (1975) 1 SCC 70 : (AIR 1975 SC 266; Messrs Southern Painters v. Fertilizers and Chemicals Travancore Ltd. and another AIR 1994 SC 1277 : (AIR 1994 SCW 639); Patel Engineering Ltd. v. Union of India (2012) 11 SCC 257 : (AIR 2012 SC 2342 : AIR 2012 SCW 3260); B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and others (2006) 11 SCC 548 : AIR 2007 SC 437 : AIR 2006 SCW 5834 and Joseph Vilangandan v. The Executive Engineer, (PWD) Ernakulam and others (1978) 3 SCC 36 : AIR 1978 SC 930 ref.

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

----S. 23---Contractor/supplier performing work for State-owned company---Fraud / illegality / non-performance / un-satisfactory performance on part of contactor---Blacklisting of contractor---Grounds---Legal position in the United States of America ("USA") and United Kingdom ("UK")---Guidelines issued by the Governments of USA and UK for blacklisting contractors recorded.

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

----S. 23---Contractor/supplier working for State-owned company---Fraud on part of contractor---State black listing contractor permanently for all times to come---Proportionality---Contractor in question issued forged/fabricated bills to the State-owned company ("company")---Excess payment was made to the contractor in collusion with officials of the company on the basis of fraudulent bills---Even in such circumstances permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable, firstly because the contractor was supplying bulk of its manufactured products to the company, and secondly because the excess amount received by it had already been paid back---Court declined to determine the time period for which the contractor should be blacklisted and remitted the matter back to the competent authority to do the same having regard to the attendant facts and circumstances---Appeal was allowed accordingly.

Messrs Parekh and Co. for Appellant.

Gaurav Agrawal for Respondents.

2014 S C M R 258

[Supreme Court of UK]\

Present: Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption and Lord Toulson

WOODLAND---Appellant

Versus

ESSEX COUNTY COUNCIL---Respondent

Decided on 23rd October, 2013.

(On appeal from [2012] EWCA Civ 239)

Per Lord Sumption, JSC; Lady Hale DPSC, Lord Clarke, Lord Wilson, Lord Toulson, JJSC agreeing

(a) Negligence---

----Duty of care---Non-delegable duty of care---School/Education authority---Non-delegable duty of care owed by a school/education authority to its pupils with respect to independent contractors performing functions on behalf of the school/education authority---Scope---Personal injury---Pupil suffering injury during a swimming lesson, which was organised by the school through an independent contractor---School/Education authority owed a non-delegable duty of care to ensure that reasonable care was taken to secure the safety of pupils who were attending school-swimming lessons conducted through an independent contractor.

Appellant attended a primary school which was under the control of the respondent local education authority ("Education authority"). Pupils at the school attended swimming lessons in groups during school hours. Appellant was assigned to a group being taught by a swimming teacher, "B", and a lifeguard, "M", who was also in attendance. Neither "B" nor "M" was employed by the school and their services had been provided to the Education authority by "S", who was an independent contractor, and had contracted with the Education authority to provide swimming lessons to its pupils. During a swimming lesson, the appellant had an accident and suffered a serious brain injury. Appellant issued proceedings against numerous parties, including the Education authority, contending that "B" and "M" had been negligent, and that the Education authority's duty to her was non-delegable.

Non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.

Schools were employed to educate children, which they could do only if they were allowed authority over them. That authority confers on them a significant degree of control. When the school's own control was delegated to someone else for the purpose of performing part of the school's own educational function, it was wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate. Parents were required by law to entrust their child to a school. They did so in reliance on the school's ability to look after them, and generally had no knowledge of or influence over the arrangements that the school might make to delegate specialised functions, or the basis on which they did so, or the competence of the delegates, all of which were matters about which only the school was in a position to satisfy itself.

In the present case, Education authority had assumed a duty to ensure that appellant's swimming lessons were carefully conducted and supervised, by whomever it might get to perform those functions. Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. Swimming lessons were an integral part of the school's teaching function. They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out that part of its functions. Teaching and supervisory functions of the school, and the control of the child that went with them, were delegated by the school to "S" (independent contractor) and through her to "B", and probably to "M" as well, to the extent necessary to enable them to give swimming lessons. The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. If the independent contractor was negligent in performing those functions and appellant was injured as a result, the Education authority was in breach of duty. Appeal was allowed accordingly.

(b) Negligence---

----Duty of care---Non-delegable duty of care---School/Education authority---Non-delegable duty of care owed by a school/education authority to its pupils with respect to independent contractors---Scope and limitations---Important limitations existed on the range of matters for which a school or education authority assumed non-delegable duties---School or education authority were liable for the negligence of independent contractors only if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions)---School or education authority, in the absence of their own negligence, for example in the selection of contractors, would not be liable for the negligence of independent contractors where on analysis their own duty was not to perform the relevant function but only to arrange for its performance---School or education authority would not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays; nor would they be liable for the negligence of those to whom no control over the child had been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours.

(c) Negligence---

----Vicarious liability---Scope---Where a defendant was vicariously liable for the tort of another, he commits no tort himself and might not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other---Boundaries of vicarious liability were wide enough to embrace tortfeasors who were not employees of the defendant, but stood in a relationship which was sufficiently analogous to employment.

Majrowski v Guy's and St Thomas's NHS Hospital Trust [2007] 1 AC 224 and Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 ref.

(d) Negligence---

----Duty of care---Non-delegable duty of care---Scope---Categories of cases in which a non-delegable duty of care arises with respect to independent contractors performing functions on behalf of the defendant provided.

Supreme Court provided two broad categories of cases in which a non-delegable duty of care arises. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work.

Pickard v Smith (1861) 10 CB (NS) 470; Penny v Wimbledon Urban District Council [1898] 2 QB 212; Holliday v National Telephone Company [1899] 2 QB 392 and Honeywill and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd [1934] 1 KB 191 ref.

The second category of non-delegable duty comprises of cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, but the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In such cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it.

Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock); Rylands v Fletcher (1866) LR 1 Ex 265; Dalton v Henry Angus & Co (1881) 6 App Cas 740 and Hughes v Percival (1883) 8 App Cas 443 ref.

(e) Negligence---

----Duty of care---Non-delegable duty of care---Scope---Criteria/ situations which would give rise to a non-delegable duty of care enumerated.

Supreme Court enumerated the following criteria/situations which would give rise to the existence of a non-delegable duty of care.

(i) The claimant was a patient or a child, or for some other reason was especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples were likely to be prisoners and residents in care homes.

(ii) There was an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which placed the claimant in the actual custody, charge or care of the defendant, and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which would foreseeably damage the claimant. It was characteristic of such relationships that they involved an element of control over the claimant, which varied in intensity from one situation to another, but was clearly very substantial in the case of school children.

(iii) The claimant had no control over how the defendant chose to perform the relevant obligations (whether personally or through employees or third parties).

(iv) The defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the claimant; and the third party was exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that went with it.

(v) The third party had been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

Gold v Essex County Council [1942] 2 KB 293, 301, CA & Cassidy v Ministry of Health [1951] 2 KB 343, 362-363, CA approved.

Myton v Woods (1980) 79 LGR 28, CA & Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139, CA distinguished.

Per Lady Hale, DPSC; agreeing with Lord Sumption, JSC

(f) Judgment---

----Words of a judgment---Judicial statements---Scope---Words used by judges in explaining why they were deciding as they did were not be treated as if they were the words of statute, setting the rules in stone and precluding further principled development should new situations arise---Judicial statements were not to be treated as if they were statutes and they could never be set in stone.

Christopher Melton QC and Ian Little (Instructed by Pannone LLP) for Appellant.

Steven Ford QC and Adam Weitzman (Instructed by Essex County Council Legal Services) for Respondent.

Dates of hearing: 3rd and 4th July, 2013.

2014 S C M R 381

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Reed and Lord Carnwath

VESTERGAARD FRANDSEN A/S (now called MVF 3 ApS) and others---Appellants

Versus

BESTNET EUROPE LIMITED and others---Respondents

Decided on 22nd May, 2013.

(On appeal from [2011] EWCA Civ 424.)

Per Lord Neuberger, PSC; Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath, JJSC agreeing.

(a) Intellectual property---

----Trade secrets---Confidential information---Breach of confidence by employee---Scope and defence---Common design in relation to misuse of trade secrets---Scope---Trade secrets/confidential information acquired by employee during employment, misuse of---Former employee developing a new product using trade secrets/confidential information of his former employer---Claimant-companies ("Claimants") were involved in developing and manufacturing specialized insecticidal nets with the assistance of a consultant biologist ("consultant") "S", who was employed by the claimants as a sales manager, left her employment and set up a competing business, which also produced the same specialized insecticidal nets---"S" employed the consultant, who previously worked for claimants, to develop the competing product---Consultant developed competing product by using the claimants' trade secrets and was found to be in breach of his duty of confidence to the claimants---Claimants sought damages and relief for misuse of confidential information from "S"---Question as to whether "S" was liable for breach of confidence on basis of, inter alia, her contract of employment or being party to common design---Any former employee was not liable for breach of confidence for starting a business which developed a product using his/her former employers' trade secrets, in circumstances where he/she neither knew the identity of such secrets nor that they were being used to develop the new product---Former employee "S" was employed by the claimants in their sales department---"S" was not liable for breach of confidence relating to misuse of confidential information as she did not have actual or objective knowledge of the confidential information in question either during her employment or afterwards---"S" did not know the trade secrets and was not aware that they were being misused by the consultant---Unless S's employment contract with claimants expressly/impliedly imposed such a liability, she could not be primarily liable for misuse of confidential information because she had received no confidential information---"S" could also not be secondarily liable for such misuse as she had not known that the consultant was using, or had used, claimants' confidential information to develop the product, and it was not contended that she could be vicariously liable for any misuse of claimants' confidential information by the consultant---S's employment contract with claimants contained a clause which stated that she agreed to "keep absolutely confidential all information relating to the employment and any knowledge gained in the course of the employment and which inherently should not be disclosed to any third party"---Confidential information used by the consultant was neither information relating to S's employment nor knowledge gained by her in the course of her employment, in fact it was knowledge gained by the consultant in the course of his consultancy work for claimants---To imply a term into S's employment contract to the effect that she would not assist another person to abuse trade secrets owned by the claimants, in circumstances where she did not know the trade secrets and was unaware that they were being misused, would be wrong in principle---To impose such a strict liability on "S" was inconsistent with the express terms of S's employment contract; was unnecessary in order to give the employment contract commercial effect, and was almost penal in nature, thus incapable of satisfying tests of obviousness and reasonableness--- With respect to liability of "S" on basis of being party to a common design, it had to be proved that she shared with other defendants each of the features of the design which made it wrongful--- "S" could not be made liable on the basis of common design involving misuse of trade secrets given her state of mind, or knowledge, as she had no knowledge of the trade secrets and also did not know that they were being misused by the consultant---Argument that "S" had blind-eye knowledge" of the fact that the consultant was using claimants' trade secret could not succeed in the absence of any finding of relevant dishonesty on S's part---Contention that "S" had taken a risk in starting a new business and employing the consultant was on its own not enough to render her secondarily liable for the misuse of trade secrets---Law had to maintain a realistic and fair balance between effectively protecting intellectual property rights and not unreasonably inhibiting competition in the market place---Importance of research and development in the commercial world to the economic prosperity of a country was self-evident, and the protection of intellectual property was one of the vital contributions of the law to that end---On the other hand, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers---Given the circumstances of the present case, it would be oppressive to hold "S" liable to claimants for breach of confidential information, notwithstanding whether she had previously worked for claimants pursuant to a contract containing a standard provision aimed at protecting claimants' trade secrets---Appeal was dismissed accordingly.

Royal Brunei Airlines SdnBhd v Tan [1995] 2 AC 378, PC ref.

Seager v Copydex Ltd [1967] 1 WLR 923, CA; Unilever plc v Gillette (UK) Ltd [1989] RPC 583, CA and Lancashire Fires Ltd v SA Lyons & Co Ltd [1996] FSR 629, CA distinguished.

(b) Intellectual property---

----Confidential information acquired by employee during employment, misuse of---Breach of confidence---Scope---Defendant-employee who learnt of a trade secret in circumstances where he/she reasonably did not appreciate that it was confidential, might nonetheless be liable to respect its confidentiality from the moment he/she was told, or otherwise appreciated, that it was in fact confidential---From such moment on, it could be said that his/her conscience was affected in a way which should be recognised by equity.

(c) Intellectual property---

----Confidential information, misuse of---Breach of confidence---Primary and secondary offenders---Scope---Recipient of confidential information might be said to be primarily liable in a case of its misuse, but a person who assisted him in the misuse could be liable, in a secondary sense---Such person/secondary offender would normally have to know that the recipient was abusing confidential information---Knowledge of such person/secondary offender would not be limited to his actual knowledge, and it would include "blind-eye knowledge".

Royal Brunei Airlines SdnBhd v Tan [1995] 2 AC 378, PC ref.

(d) Intellectual property---

----Confidential information, misuse of---Breach of confidence---Vicarious liability---Scope---Confidential information acquired by employee during employment, misuse of---Where a person directly misused a claimant's trade secret and did so in the course of his employment by a third party, then the third party could (at least arguably) be liable to the claimant for the breach of confidence, on the basis of vicarious liability.

(e) Intellectual property---

----Confidential information/trade secrets, misuse of---Common design---Joint liability---Scope---Common design could, in principle, be invoked against a defendant in a claim based on misuse of confidential information, however, in order to be party to a common design, a defendant had to share with the other party each of the features of the design which made it wrongful---If, and only if, all such features were shared, the fact that some parties to the common design did only some of the relevant acts, while others did only some other relevant acts, would not stop them all from being jointly liable.

(f) Patent---

----Patent, infringement of---Strict liability---Knowledge and intention of alleged infringer---Primary and secondary infringer---Scope---Patent infringement was a wrong of strict liability: it required no knowledge or intention on the part of the alleged infringer, whose state of mind was wholly irrelevant to the issue of whether he infringed the patent---Fact that the alleged infringer did not know of the existence, contents or effect of the patent was completely irrelevant to the question of infringement, even if he had thought the invention up for himself---Logically a person who, while wholly innocent of the existence, contents or effect of the patent, could nonetheless be secondarily liable if he assisted the primary infringer in his patent-infringing acts.

(g) Intellectual property---

----Intellectual property rights and trade secrets, protection of---Scope---Law had to maintain a realistic and fair balance between effectively protecting trade secrets (and other intellectual property rights), and not unreasonably inhibiting competition in the market place.

Mark Platts-Mills QC and Thomas Moody-Stuart (Instructed by Field Fisher Waterhouse LLP) for Appellants.

Alastair Wilson QC and George Hamer (Instructed by McGuire Woods London LLP) for Respondents.

Date of hearing: 24th April, 2013.

2014 S C M R 1069

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption and Lord Carnwath

LAWRENCE and another---Appellants

Versus

COVENTRY and others---Respondents

Decided on 26th February, 2014.

(On appeal from [2012] EWCA Civ 26)

Per Lord Neuberger, PSC; Lord Sumption, Lord Mance, Lord Clarke, Lord Carnwath, JJSC agreeing.

(a) Tort---

----Nuisance---Definition---"Nuisance" could be defined as an action (or sometimes a failure to act) on the part of a defendant, which was not otherwise authorised, and which caused an interference with the claimant's reasonable enjoyment of his land, or which unduly interferes with the claimant's enjoyment of his land.

(b) Tort---

----Nuisance---Activity causing nuisance---Locality, assessment of---Whether a particular activity caused a nuisance often depended on an assessment of the locality in which the activity concerned was carried out.

Sturges v Bridgman (1879) 11 Ch D 852, 865 ref.

(c) Tort---

----Private nuisance---Nuisance by noise---Issues to be considered by a court in relation to a claim for nuisance by noise.

Following are the issues which are to be considered by a court when deciding a claim for nuisance by noise.

(i) The extent, if any, to which it is open to a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance by means of noise;

(ii) The extent, if any, to which a defendant to a nuisance claim can rely on the fact that the claimant "came to the nuisance";

(iii) The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality;

(iv) The extent, if any, to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance or any other use in the locality can be taken into account when considering the character of the locality;

(v) The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue.

(d) Judgment---

----Judge, duty of---Judgment---Issues of fact and law---Identifying and resolving such issues in clear terms---Where there had been a relatively long and expensive hearing (of a case), it was important that the judge clearly identified for his own benefit as well as that of the parties, all the issues of fact and expert opinion that were in issue, and resolved in clear terms all such issues which were relevant on his view of the law, and, at least often, those issues which would be relevant if his view of the law turned out to be wrong---Otherwise, there was a real risk of a complete or partial rehearing being ordered, which would be very unfair on the parties, and would bring the administration of law into disrepute.

(e) Tort---

----Private nuisance---Defence---Defendant acquiring a right to commit what would otherwise be a nuisance by noise---Scope---Defendant could have a right to carry on an activity which would otherwise be a nuisance---For instance a claimant may have bindingly agreed to the activity being carried on and to the consequent nuisance, or a claimant may somehow be estopped from objecting to the activity on the ground that it constituted a nuisance; and, under a statute, certain activities in certain circumstances may be accorded immunity from a claim in nuisance.

(f) Tort---

----Private nuisance---Nuisance by noise---Defence---Right by prescription--- Defendant could possibly obtain by prescription (a form of deemed grant that arose as a result of long use) a right to commit what would otherwise be a nuisance by noise.

(g) Tort---

----Private nuisance---Defence---Plaintiff "coming to the nuisance"---No defence for a defendant who was sued in nuisance to contend that the claimant came to the nuisance--- Although it might well be a defence, at least in some circumstances, for a defendant to contend that, as it was only because the claimant had changed the use of, or built on, his land that the defendant's pre-existing activity was claimed to have become a nuisance, the claim should fail.

Sturges v Bridgman 11 Ch D 852; London, Brighton and South Coast Railway Co v Truman (1885) LR 11 App Cas 45, 52 and Miller v Jackson [1977] 1 QB 966, 986-987 ref.

(h) Tort---

----Private nuisance---Whether defendant's activities constitute a nuisance--- Character of the locality, assessment of--- Scope---Assessment of the character of the locality for the purpose of assessing whether a defendant's activities constituted a nuisance was an issue of fact and judgment for the judge trying the case---Sometimes, it may be difficult to identify the precise extent of the locality for the purpose of the assessment, or the precise words to describe the character of the locality, but any attempt to give general guidance on such issues risked being unhelpful or worse---Character of the locality must be assessed by reference to the position as it was as a matter of fact, save to the extent that any departure from reality, or artificial assumption, should be made as a matter of logic or legal requirement (the presumption of reality)---Accordingly, in a nuisance claim, one started with the proposition that the defendant's activities were to be taken into account when assessing the character of the locality.

St Helen's Smelting 11 HL Cas 642, 650 ref.

(i) Tort---

----Private nuisance--- Nuisance by noise--- Defence--- Defendant's activities forming part of the character of the locality---Defendant, faced with a contention that his activities gave rise to a nuisance, could rely on those activities as constituting part of the character of the locality, but only to the extent that those activities did not constitute a nuisance---If the activities couldn't be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood---In many cases, it was fairly clear whether or not a defendant's activities constituted a nuisance once one had established the facts, and questions as to the precise identification of the locality or its character did not have to be addressed--- However, in some cases, the court may have to go through an iterative process when considering what noise levels were acceptable when assessing the character of the locality and assessing what constituted a nuisance---Any other activity in the neighbourhood could (also) properly be taken into account when assessing the character of the neighbourhood, to the extent that it did not give rise to an actionable nuisance or was otherwise unlawful---Other uses which may not have obtained a specific sanction (through being agreed to by the claimant, through a prescriptive right or through the court refusing an injunction), but which were unobjectionable as a matter of law, may therefore (also) be taken into account.

(j) Tort---

----Private nuisance---Defence---Defendant obtaining/granted planning permission for the activities which allegedly cause nuisance by noise---Relevance and effect---Mere fact that the activity which was said to give rise to the nuisance had the benefit of a planning permission was normally of no assistance to the defendant in a claim brought by a neighbour who contended that the activity caused a nuisance to his land in the form of noise or other loss of amenity---Seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing him with compensation---Planning authority could be expected to balance various competing interests, which would often be multifarious in nature, as best it could in the overall public interest, bearing in mind relevant planning guidelines---Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constituted a nuisance---However, there would be occasions when the terms of a planning permission could be of some relevance in a nuisance case; thus, the fact that the planning authority took the view that noisy activity was acceptable after 8.30 am, or if it was limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point in a case where the claimant was contending that the activity gave rise to a nuisance if it started before 9.30 am, or was at or below the permitted decibel level---While the decision whether the activity caused a nuisance to the claimant was not for the planning authority but for the court, the existence and terms of the permission were not irrelevant as a matter of law, but in many cases they would be of little, or even no, evidential value, and in other cases rather more.

(k) Tort---

----Private nuisance---Remedy---Injunction or damages---Awarding damages instead of an injunction---Principles---Factors to be considered by the court when deciding whether to award damages instead of an injunction---Where a claimant had established that the defendant's activities constituted a nuisance, prima facie the remedy to which he was entitled (in addition to damages for past nuisance) was an injunction to restrain the defendant from committing such nuisance in the future---Prima facie position was that an injunction should be granted, so the legal burden was on the defendant to show why it should not be granted---When a judge was called on to decide whether to award damages in lieu of an injunction, there should not be any inclination either way, and the outcome should depend on all the evidence and arguments---In some cases, the grant of planning permission for a particular activity (whether carried on at the claimant's, or the defendant's, premises) may provide strong support for the contention that the activity was of benefit to the public, which would be relevant to the question of whether or not to grant an injunction---Accordingly, the existence of a planning permission which expressly or inherently authorised carrying on an activity in such a way as to cause a nuisance by noise or the like, could be a factor in favour of refusing an injunction and compensating the claimant in damages---Court in such cases would have to weigh up all the competing factors---In some cases the court may well be impressed by a defendant's argument that an injunction would involve a loss to the public or a waste of resources on account of what may be a single claimant, or that the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if he was left to his claim in damages---In many such cases, particularly where an injunction would in practice stop the defendant from pursuing the activities, an injunction may well not be the appropriate remedy.

(l) Tort---

----Private nuisance---Remedy---Awarding damages instead of an injunction---Measure of damages, calculation of---Reduction in value of claimant's property---Where the court decided to refuse the claimant an injunction to restrain a nuisance, and instead awarded him damages, such damages were conventionally based on the reduction in the value of the claimant's property as a result of the continuation of the nuisance---Arguably where a claimant had a prima facie right to an injunction to restrain a nuisance, and the court decided to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimant's property---Damages in such a case might well, at least where it was appropriate, also include the loss of the claimant's ability to enforce his rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction.

Jaggard [1995] 1 WLR 269 ref.

Per Lord Sumption, JSC; agreeing with Lord Neuberger, PSC.

(m) Tort---

----Private nuisance--- Whether defendant's activities constitute a nuisance---Defendant obtaining/granted planning permission for its activities---Relevance and effect---Existence of planning permission for a given use was of very limited relevance to the question whether that use constituted a private nuisance---Such planning permission may at best provide some evidence of the reasonableness of the particular use of land in question---Planning authorities were concerned with the public interest in development and land use, as that interest was defined in the planning legislation and any relevant development plans and policies---Planning powers did not exist to enforce or override private rights in respect of land use, whether arising from restrictive covenants, contracts, or the law of tort.

(n) Tort---

----Private nuisance---Remedy---Injunction or damages---Awarding damages instead of an injunction---Principles---Public interest in conflict with a proprietary right---Most uses of land said to be objectionable could not be restrained by injunction simply as between the owner of that land and his neighbour---If the use of a site for an activity was restrained by injunction, that prevented the activity as between the defendant and the whole world; yet it may be a use which was in the interest of many other people who derived enjoyment or economic benefits from it of precisely the kind with which the planning system was concerned---Injunction prohibiting the activity entirely would operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account---Solution to such a problem was to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property---In a case where planning permission had actually been granted for the use in question, there were particularly strong reasons for adopting such a solution, as it was what the law normally provided for when a public interest conflicted with a proprietary right.

(o) Injunction---

----Grant of---Scope---Equity---Court does not grant an injunction in a case where there was an adequate legal remedy; in particular, it does not do so where damages would be an adequate remedy---Where an injunction was granted, it was usually because the injury to the claimant was "irreparable", in the sense that money could not atone for it.

Per Lord Mance, JSC; agreeing with Lord Neuberger, PSC

(p) Tort---

----Private nuisance---Defence---Character of the locality, change in---Defendant's activities forming part of the character of the locality---Fact that the nuisance was already being committed could not make it part of the character of the locality---Such a change or the introduction of a new activity may in some circumstances and to some degree be compatible with the existing character of the locality, and to that extent not involve the creation of a nuisance---With or without planning permission, the character of an area may be susceptible over time to gradual change and development---Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable---In the meantime, those occupying property, living or working, in the area, would have had time to adapt---Such a process was quite different from the one brought about by an activity which increased in intensity or was introduced for the first time and brought about a radical change over a relatively short period---In the latter case and to the extent that the increased or new activity went beyond anything which would fit with the existing character of the locality, an aggrieved occupier could have cause for complaint about a resulting nuisance.

Per Lord Carnwath, JSC; agreeing with Lord Neuberger, PSC but with his own reasonings.

(q) Tort---

----Private nuisance---Defence---Defendant's activities forming part of the "character of the locality"---Character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which needed to coexist in a modern society---Due account also needed to be taken of the process by which the pattern of uses had developed---Not unreasonable to start from the presumption that the established pattern of uses generally represented society's view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants---Law of nuisance was there to provide a residual control to ensure that new or intensified activities did not need lead to conditions which, within that pattern, went beyond what a normal person should be expected to put up with---In such circumstances, if someone bought a house next to a (sports) stadium, he should not be able to sue for nuisance, even though the noise may be highly disturbing to ordinary home life on match days---Significant disturbance on match days may be regarded as a necessary price for an activity regarded as socially important, provided it was subject to proper controls by the public authorities, including the police, to ensure that the disturbance was contained as far as reasonably practicable---Claimant who had bought a house next to a stadium should not be able to sue for nuisance not because he came to the nuisance, nor (necessarily) because it had continued for many years; rather it was because it was part of the established pattern of uses in that area, and society attached importance to having places for professional sports within urban areas---Such a claimant could however sue if there was something about the organisation, or lack of it, which took the disturbance beyond what was acceptable under the reasonableness test.

(r) Tort---

----Private nuisance---Defence---Project benefitting the public but creating private nuisance for claimant---Planning decisions may require individuals to bear burdens for the benefit of others, the local community or the public as a whole---However, it was generally no defence to a claim of nuisance that the activity in question was of benefit to the public.

(s) Tort---

----Private nuisance--- Nuisance by noise--- Whether defendant's activities constitute a nuisance---Defendant obtaining/granted planning permission for its activities---Relevance and effect---Planning permission granted by planning authority establishing, by condition, a framework of acceptable noise levels and time limits with the benefit of expert advisers---Where the evidence showed that such a set of conditions had been carefully designed to represent the (planning) authority's view of a fair balance, they were not binding on the judge, but they may help to bring some order to the debate---However, if the defendant sought to rely on compliance with such criteria as evidence of the reasonableness of his operation, the onus was on him to show compliance---By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

(t) Tort---

----Private nuisance---Remedy---Injunction or damages---Awarding damages instead of an injunction---Guidance provided by the Supreme Court (UK) in relation to cases where damages may be awarded instead of an injunction.

Supreme Court (UK) provided the following guidance in relation to cases where damages could be awarded instead of an injunction:--

Courts should move away from the strict principle that if a nuisance was established an injunction should follow. This was particularly relevant to cases where an injunction would have serious consequences for third parties, such as employees of the defendant's business, or, members of the public using or enjoying a stadium.

Shelfer [1895] 1 Ch 287; Canada Paper Co v Brown (1922) 63 SCR 243; Bottom v Ontario Leaf Tobacco Co. [1935] 2 DLR 699 and Boomer v Atlantic Cement Company (1970) 26 NY 2d 219 ref.

Grant of planning permission for a particular use as in itself would not give rise to a presumption against the grant of an injunction. Circumstances in which permissions may be granted differed so much as to make it unwise to lay down any general propositions, however the nature of, and background to, a relevant planning permission may be an important factor in the court's assessment.

Cases which were not concerned with drastic alternatives and the judge was not asked to bring the defendant's activity to an end altogether, but to set reasonable limits for its continuation, the judge should take into account not only the claimant's environment but also the viability of the defendant's business. In some cases it may be appropriate to combine an injunction with an award of damages. Special importance should be attached to the right to enjoy one's home without disturbance, independently of financial considerations.

Stephen Hockman QC and William Upton (Instructed by Richard Buxton Environmental and Public Law) for Appellants.

Robert McCracken QC and Sebastian Kokelaar (Instructed by Pooley Bendall Watson) for Respondents.

Dates of hearing: 12th, 13th and 14th November, 2013.

2014 S C M R 1238

[Supreme Court of UK]\

Present: Lord Mance, Lord Clarke, Lord Reed, Lord Carnwath and Lord Toulson

CRAMASO LLP---Appellant

Versus

OGILVIE-GRANT, EARL OF SEAFIELD and others---Respondents

Decided on 12th February, 2014.

(On appeal from [2011] CSIH 81)

Per Lord Reed, JSC; Lord Mance, Lord Clarke, Lord Carnwath and Lord Toulson, JJSC agreeing.

(a) Misrepresentation---

----Negligent misrepresentation---Pre-contractual representations---"Continuing representations"---Representations of a "continuing nature" remaining in effect until the contract is concluded---Principles.

Following are the principles in relation to representations which have a continuing nature and which remain in effect until the contract is concluded:

Law relating to the effect of representations upon a contract proceeds on the basis that a representation made in the course of pre-contractual discussions may produce a misapprehension in the mind of the other party which continues so as to have a causative effect at the time when the contract is concluded.

Smith v Kay (1859) 7 HL Cas 750, 769; With v O'Flanagan [1936] Ch 575 and Jones v Dumbrell [1981] VR 199, 203 ref.

Whether the remedy sought was reduction of the contract or damages for the loss suffered as a result of entering into it, in either case a representation may therefore be treated by the law as having a continuing effect, rather than as being an event whose legal consequences were necessarily fixed at the time when the statement in question was made.

Continuing effect of a pre-contractual representation was reflected in a continuing responsibility of the representor for its accuracy. Thus a person who subsequently discovered the falsity of facts which he had innocently misrepresented may be liable in damages if he failed to disclose the inaccuracy of his earlier representation. The same continuing responsibility can be seen in the treatment of representations which were true when made, but which became false by the time the contract was entered into.

Brownlie v Miller (1880) 7 R (HL) 66, 79; Brownlie v Campbell (1880) 5 App Cas 925, 950 and Shankland & Co v Robinson & Co 1920 SC (HL) 103, 111 ref.

Where a misrepresentation does not have a continuing effect, for example because it was withdrawn or lapsed, or because the other party discovered the true state of affairs before the contract was concluded, it could not induce the other party to enter into the contract and therefore could not affect its validity or give rise to a remedy in damages for any loss resulting from its conclusion.

Irvine v Kirkpatrick (1850) 7 Bell App (HL) 186, 237-238 ref.

Law is thus capable, in appropriate circumstances, of imposing a continuing responsibility upon the maker of a pre-contractual representation in situations where there was an interval of time between the making of the representation and the conclusion of a contract in reliance upon it, on the basis that, where the representation had a continuing effect, the representor had a continuing responsibility in respect of its accuracy.

(b) Misrepresentation---

----Negligent misrepresentation---Pre-contractual representations---"Continuing representations"---Whether a representation, and responsibility for its accuracy, continue after the identity of the contracting party changes---Principles.

Following are the principles in relation to responsibility for accuracy of continuing representations, when identity of the contracting party changes:

In principle, the possibility that a representation may continue to be asserted, and may have a causative effect so as to induce the conclusion of the contract, was not necessarily excluded where the contracting parties were not the original representor and representee. In such a case, it was possible that the inference could be drawn from the parties' conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed. In such circumstances the representation may have continued to have a causative effect, so as to induce the conclusion of the contract.

Where the inference to be drawn was that a representation continued to be made until the contract was concluded, it may also be inferred that the risk of harm being suffered as a result of reliance upon it, in the event that it was inaccurate, continued to be foreseeable. In such circumstances, the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even though that person was not the original representee.

Briess v Woolley [1954] AC 333 ref.

The same principle should also apply in relation to an agent, where the representation was made to (rather than by) the agent prior to the commencement of his agency. In such a situation, depending of course on the facts, the representor could equally be taken to be, by his conduct, implicitly repeating the representation previously made, and could therefore owe a duty in respect of the accuracy of the representation towards the agent's principal.

(c) Misrepresentation---

----Negligent misrepresentation---Pre-contractual representations---"Continuing representations"---Representations of a "continuing nature" remaining in effect until the contract is concluded---Scope---Partnership---Whether a representation, and responsibility for its accuracy, continue after the identity of the contracting party changes--- Respondents were owners of a grouse moor where commercial shooting took place---Respondents had sought to attract a tenant to invest in the moor to increase the number of grouse, and in such regard respondents' surveyor ("K"), contacted "A"---After considering the respondents' offer, "A" wrote an email to "K" expressing his concern that the shooting planned for that season would leave an inadequate grouse breeding population on the moor---"K" forwarded the email to the respondent's chief executive ("L")---"L" responded to "K" (the "critical e-mail") by referring to an earlier e-mail (the "August e-mail") written to some other interested party and invited "K" to forward the response to "A"---"L' had stated in the "August e-mail" that the grouse counts, which had been completed, had disclosed grouse stocks at the highest level in recent years; that the stocks appeared adequate to complete the booked shooting programme---"August e-mail" also contained a description of the count system used by shooting estates, and an extrapolation of the count---"K" forwarded the critical e-mail to "A", as suggested by "L"---"A" and his wife established a limited liability partnership (i.e. appellant) as the vehicle for their investment in the moor---Respondents were informed of "A"'s intended use of the partnership to take the tenancy of the moor---Lease was signed between the partnership and respondents---"A" subsequently discovered that the counting areas were not representative and that the grouse population was smaller than he had believed, therefore, he brought proceedings alleging that "L" had deliberately misled him in order to induce him to take the lease---Held, in a case such as the present one where the contracting parties were not the original representor and representee, it was possible that the inference could be drawn from the parties' conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed---In such circumstances the representation may have continued to have a causative effect, so as to induce the conclusion of the contract, and the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even though that person was not the original representee---Change in the identity of the prospective contracting party (from "A" to the partnership) in the present case did not affect the continuing nature of the representation, or the respondents' continuing responsibility for its accuracy---Neither party drew a line under the previous discussions, after the partnership was formed, in order to begin afresh---Neither party disclaimed what had previously been said in the course of their discussions, or sought assurances that it could be relied upon as between the partnership and the respondents---Representation made in the critical e-mail remained operative in the mind of "A" after he began to act in the capacity of an agent of the partnership, up until the time when the lease was executed on behalf of the partnership---Partnership was thus induced to enter into the contract by such representation---In continuing and concluding the contractual negotiations with the partnership, through its agent "A", without having withdrawn the representation earlier made to "A" as an individual, the respondents by their conduct implicitly asserted to the partnership the accuracy of that representation; and they did so in a situation where it continued to be foreseeable that the representation would induce the other party to the negotiations to enter into a contract---Respondents therefore assumed a responsibility towards the partnership for the accuracy of the representation, and therefore owed the partnership a duty of care, which they failed to fulfil---Duty of care was owed by the respondents to "A" in respect of the representation contained in the critical e-mail---Duty of care was also owed by the respondents to the partnership, when they negotiated and concluded the contract on the basis of the discussions previously held with "A"---Respondents acted in breach of such duty of care, and were therefore liable in damages for any loss suffered by the partnership as a result---Appeal was allowed accordingly.

Per Toulson, JSC; agreeing with Lord Reed, JSC

(d) Misrepresentation---

----Negligent misrepresentation---Pre-contractual representations---"Continuing representations"---Whether a representation, and responsibility for its accuracy, continue after the identity of the contracting party changes---Pre-contractual negotiations between "A" and respondents for a lease---Respondents making a certain pre-contractual representation to "A"---"A" relying on such representation and forming a partnership to enter into the lease contract with respondents---Pre-contractual representation made to "A" turning out to be incorrect---Whether the misrepresentation made to "A" was to be regarded as having continued up to the time of the execution of the lease so as to entitle the partnership to seek a remedy for it---Formation of the partnership made no difference to the subject matter of the negotiations or to the people involved in conducting them---What changed was the role of "A" from being himself the prospective lessee, he became the agent of a partnership created and controlled by him for the purpose of taking the lease---Representations made by respondents in the present case was a continuing representation, which operated as an inducing factor on the mind of "A" after he became partnership's agent, and the partnership was entitled to rely on it, just as the partnership would have carried responsibility for the ongoing effect of a prior misrepresentation by "A" to the respondents---Appeal was allowed accordingly and respondents were held to be liable in damages for any loss suffered by the partnership as a result of the misrepresentation.

Briess v Woolley [1954] AC 333 ref.

Alan Dewar QC and Graeme Hawkes (Instructed by Anderson Strathern LLP) for Appellant.

Craig R K Sandison QC and David Thomson (Instructed by Brodies) for Respondents.

Dates of hearing: 18th and 19th November, 2013.

2014 S C M R 1393

[Supreme Court of UK]\

Present: Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge

BRITISH BROADCASTING CORPORATION (SCOTLAND)---Appellant

Versus

A---Respondent

Decided on 8th May, 2014.

(On appeal from [2013] CSIH 43)

Per Lord Reed; Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge, JJSC agreeing.

(a) Administration of justice---

----Open justice, principle of---"Freedom of expression"---"Right to life and bodily security"---"Rights of accused person"---Right to respect for private life"---Freedom of media and press to publish court proceedings---Principles and exceptions.

Following are the general principles and exceptions in relation to principle of open justice and freedom of media and press to publish court proceedings:--

Justice was administered by the courts in public, and was therefore open to public scrutiny. This principle was an aspect of the rule of law in a democracy. Society depended on the courts to act as guardians of the rule of law. In a democracy, where the exercise of public authority depended on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.

[2012] EWCA Civ 420; [2013] QB 618, para 1 ref.

Principle that courts should sit in public had important implications for the publishing of reports of court proceedings. It was by an application of the same principle that it had long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting in the media.

Sloon v B 1991 SC 412, 442 and Richardson v Wilson (1879) 7 R 237, 241 ref.

Connection between the principle of open justice and the reporting of court proceedings was not merely functional. Since the rationale of the principle was that justice should be open to public scrutiny, and the media were the conduit through which most members of the public received information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings.

It was for the courts to determine the ambit and requirements of principle of open justice, subject to any statutory provision. The courts therefore had an inherent jurisdiction to determine how the principle should be applied.

Principle of open justice was fundamental to the dispensation of justice in a modern, democratic society, however, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded. Such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. Examples of such cases, could be litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.

Scott v Scott [1913] AC 417 and Bank Mellat v Her Majesty's Treasury [2013] UKSC 38; [2013] 3 WLR 179 ref.

Principle of open justice could be limited where it was necessary to protect confidential information or to prevent the frustration of the judicial process.

Scottish Lion Insurance Co Ltd v Goodrich Corporation [2011] CSIH 18; 2011 SC 534 ref.

Freedom of expression may conflict with other important values, including the rights to life and to bodily security, the integrity of legal proceedings, the rights of litigants and accused persons, and the right to respect for private life. Where there was a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which was itself qualified, a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, was proportionate in the circumstances.

In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593 and In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697 ref.

Where the conflict was between the media's rights and an unqualified right of some other party, such as the right to life and bodily security or the rights of litigants and accused persons, there could be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the media's rights was no greater than was necessary. The need for such care reflected the important role of the media in a democratic society in scrutinising the administration of justice generally, as well as their role as the conduit of information about particular proceedings which may be of public interest. Balance to be achieved, in such context, was therefore between on the one hand protection of public discussion of matters of legitimate interest in a democracy, and on the other protection of the integrity of particular court proceedings or of the administration of justice more generally.

Media did not have the right to publish information at the known potential cost of an individual being killed or maimed.

Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. The court had to carry out a balancing exercise which would be fact-specific. Central to the court's evaluation would be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.

Kennedy v The Charity Commission [2014] UKSC 20, para 113 ref.

Where the interests of justice required some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information was withheld.

Attorney General v Leveller Magazine Ltd [1979] AC 440 ref.

(b) Administration of justice---

----Open justice, principle of---Scope---Ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that was made known to all parties.

In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440 ref.

(c) Administration of justice---

----Open justice, principle of---Applicability---Application of the principle of open justice may change in response to changes in society and in the administration of justice.

(d) Administration of justice---

----Open justice, principle of---Exceptions---Court withholding name or identity of a party from public disclosure---"Interest of justice"---Scope---Courts had the power to permit the identity of a party or a witness to be withheld from public disclosure where that was necessary in the interests of justice---Interests of justice were not confined to the court's reaching a just decision on the issue in dispute between the parties---Was necessary in the first place to recognise that the administration of justice was a continuing process---In some cases, for example, anonymity of a party or a witness may be necessary in view of risks to them or because they may suffer commercial ruin if their identity became known---Would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about him/her where there was no public interest in it being publicised.

Ronald Clancy QC, Duncan Hamilton (Instructed by Burness Paul and Williamsons) for Appellant.

Mungo Bovey QC, Daniel Byrne (Instructed by Drummond Miller LLP) for Respondent.

Andrew Webster (Instructed by Office of the Advocate General for Scotland) for Intervener - written submissions (Secretary of State for the Home Department).

Dates of hearing: 22nd and 23rd January, 2014.

2014 S C M R 1702

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge and Lord Collins

CEDAR CAPITAL PARTNERS LLC---Appellant

Versus

FHR EUROPEAN VENTURES LLP and others---Respondents

Decided on 16th July, 2014.

(On appeal from [2013] EWCA Civ 17)

(a) Principal and Agent---

----Duties of agent---Principles---Principles regarding fiduciary duties of agent stated.

Following are the fiduciary duties that an agent owed to his principal:--

(i) Agent owes a fiduciary duty to his principal because he was someone who had undertaken to act for or on behalf of his principal in a particular matter in circumstances which gave rise to a relationship of trust and confidence;

(ii) Agent must not make a profit out of his trust, and must not place himself in a position in which his duty and his interest may conflict; and

(iii) Fiduciary who acted for two principals with potentially conflicting interests without the informed consent of both was in breach of the obligation of undivided loyalty, by putting himself in a position where his duty to one principal may conflict with his duty to the other.

Bristol and West Building Society v Mothew [1998] Ch 1, 18 and Boardman v Phipps [1967] 2 AC 46, 123 ref.

(b) Principal and Agent---

----Breach of fiduciary duty by agent---Benefit obtained by agent---Agent making secret benefit/profit in breach of his fiduciary duty---Remedy for principal---Proprietary remedy---Equitable compensation---Where an agent received a benefit in breach of his fiduciary duty, he was obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to profit by way of equitable compensation---Principal's right to seek an account undoubtedly gave him a right in equitable compensation in respect of the bribe or secret commission, which equaled the quantum of that bribe or commission (subject to any permissible deduction in favour of the agent - e.g. for expenses incurred)---Where an agent acquired a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which resulted from his fiduciary position, the general equitable rule was that he was to be treated as having acquired the benefit on behalf of his principal, so it was beneficially owned by the principal---In such cases, the principal had a proprietary remedy in addition to his personal remedy against the agent, and the principal could elect between the two remedies.

Regal (Hastings) Ltd v Gulliver (Note) (1942) [1967] 2 AC 134, 144-145 ref.

(c) Principal and Agent---

----Breach of fiduciary duty by agent---Benefit obtained by agent---Agent making secret commission/profit/bribe in breach of his fiduciary duty---Remedy for principal---Proprietary and personal remedy---Commission/bribe/profit held on trust for principal---Whether in respect of secret profit/bribe/commission received by agent, the principal only had a claim for equitable compensation or also had a proprietary interest in the same---Deal for purchase of property---Agent acting on behalf of principal in respect of purchase of property from vendor - Agent obtaining undisclosed/secret commission from vendor without knowledge of principal---Agent held such secret commission or bribe on trust for his principal, and the principal had a proprietary claim to it---Bribes and secret commissions received by an agent should be treated as the property of his principal, rather than merely giving rise to a claim for equitable compensation---Secret commissions inevitably tended to undermine trust in the commercial world---Proceeds of a bribe or secret commission consisted of property which should not be in the agent's estate at all---In many cases, the bribe or commission would very often have reduced the benefit from the relevant transaction which the principal would have obtained, and therefore it could fairly be said to be the principal's property---Principal whose agent had obtained a bribe or secret commission should be able to trace the proceeds of the bribe or commission into other assets and to follow them into the hands of knowing recipients.

Matthew Collings QC, Duncan McCombe (Instructed by Farrer and Co. LLP) for Appellant.

Christopher Pymont QC (Instructed by Hogan Lovells International LLP) for Respondents.

Dates of hearing: 17th and 19th June, 2014.