SCMR 2015 Judgments

2015 S C M R 1020

[Judicial Committee of the Privy Council]\

Present: Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hughes

MITCHELL---Appellant

versus

GEORGES---Respondent

Privy Council Appeal No. 0067 of 2013, decided on 18th December, 2014.

[From the Eastern Caribbean Court of Appeal (Saint Vincent and the Grenadines)]

Bias---

----Inquiry Commission, bias of---Test and scope---Conduct of Commission---Interim inquiry report prepared by Commission (single member) containing decisive language and concluded findings---Effect---Apparent bias of Commission---Commission prevented from taking further part in Inquiry Commission---Respondent, who was a retired judge, was commissioned to inquire into the failure of a project undertaken during the government of a former Prime Minister/appellant---Project in question was a fraudulent project due to which the government lost large sums of public money---Commission-respondent according to his terms of reference prepared an interim inquiry report---Contention of former Prime Minister that the contents of the said interim inquiry report showed the apparent bias of the Commission against him---Validity---Test for apparent bias of Commission was whether, having considered the facts, a fair minded and informed observer would conclude that there was a real possibility that, in the light of the contents of the interim report, the Commission would not approach the remainder of the inquiry with an open mind or, in other words, that he would not conduct an impartial inquiry, at any rate so far as the conduct of the former Prime Minister was concerned---Any fair-minded observer would have regard to the fact that the Commission was an experienced High Court judge well versed in the analysis of complex facts---Commission had noted in his interim inquiry report that armed with knowledge of co-accused's deception and fraud the former Prime Minister continued to provide assistance to the co-accused, who controlled the funds for the project; that the co-accused enjoyed complete sway aided and abetted by the former Prime Minister and his cohorts who acted without any scruples or compunction; that the former Prime Minister permitted or allowed a framework which gave total control to the co-accused and permitted him to freely execute his fraud; that the former Prime Minister was the moving light behind the project, and his failure to properly inform the Cabinet and Parliament was inexcusable; that the decision to exclude senior members of the public service (from the project) was obviously made by the former Prime Minister, which suggested that such action and deliberate failure to act in accordance with the law was tantamount to misbehaviour in public office; that the former Prime Minister's public representation of the bona fides of the participants in the project was a complete misrepresentation made without any due diligence; that the former Prime Minister took no steps to protect the public interest and shut his eyes to the obvious and acted recklessly in the extreme, if not deliberately; that the former Prime Minister sought to coerce or mislead the [trustees] into transferring the land held in trust by them to an empty shell of a company, and that the former Prime Minister's conduct amounted to a pattern of gross misbehaviour which amounted to a total dereliction of duty and to substantial irresponsibility---Contents of the said interim inquiry report showed that it was expressed in such terms that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Commission was biased such that he would not approach the remainder of the inquiry with an open mind or, to put it in another way, he would not conduct an impartial inquiry, so far as the conduct of the former Prime Minister was concerned---Any fair-minded observer, in light of the interim inquiry report, would conclude that there was a real possibility that the Commission had made up his mind by the date of the interim report that the former Prime Minister was at the heart of the wrongdoing which led to the project in question and its collapse and would not be willing to change his mind, so that his final report would not be impartial---Commission's interim report was replete with strong and colourful language and he had used therein decisive language of a concluded finding---Interim report prepared by the Commission contained far too many firm statements of the misbehaviour of the former Prime Minister---Appeal was allowed accordingly and Judicial Committee of the Privy Council directed that the respondent-Commission should take no further part in the Inquiry Commission.

James Guthrie QC, Ramesh Lawrence, Maharaj SC and Robert Strang (instructed by Bircham Dyson Bell LLP) for Appellant.

Thomas Roe QC and Hafsah Masood (instructed by Charles Russell Speechlys LLP) for Respondent.

Date of hearing: 17th November, 2014.

2015 S C M R 1

[Supreme Court of Pakistan]

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

AMJAD IKRAM---Appellant

Versus

Mst. ASIYA KAUSAR and 2 others---Respondents

Civil Appeal No.768 of 2002, decided on 18th September, 2014.

(On appeal from the judgment dated, 28-3-2002 passed by the Lahore High Court, Multan Bench, in R.F.A. No.327 of 2000)

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

----O. XIV, R. 1---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Allegation of fraud---Framing of issues---Specific issue on fraud not framed---Suit dismissed by High Court on basis of fraud---Contention of plaintiff that no issue with regard to fraud had been framed by the Trial Court, hence findings of High Court regarding fraud were not sustainable---Validity---Trial Court had framed a composite issue i.e. whether plaintiff was entitled to have decree for specific performance of agreements to sell---Such issue when examined in the context of the pleadings of the parties and written statement of the defendant, left no doubt as to the real controversy between the parties, which required adjudication by the court---Both parties were fully cognizant of the real matter in controversy and the facts, which were required to be proved by them in support of their respective stands and they led evidence accordingly---In such an eventuality, contention that no specific issue on fraud was framed lost significance as no prejudice was caused to the plaintiff--- Appeal was dismissed accordingly.

Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmed Khan and 2 others 1985 SCMR 1 ref.

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

----Art. 117---Document--- Transaction--- Proof--- Beneficiary of a transaction or a document was obliged/duty bound to prove the same.

Akhtar Ali v. The University of the Punjab 1979 SCMR 549; Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439 and Khan Muhammad v. Muhammad Din through LRs 2010 SCMR 1351 ref.

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

----S. 12---Suit for possession through specific performance of agreement---Agreements to sell---Payment of sale consideration doubtful---Non-execution of sale deed---Possession of property not given---Plaintiff/appellant claimed that predecessor of defendants had executed three agreements to sell some land in his favour; that plaintiff had paid the consideration for the land, and that predecessor of defendants had also executed a general power of attorney in his favour---Validity---Perusal of agreements to sell showed that date on which balance sale consideration was allegedly paid was not clear---Contradicting dates had been mentioned on the said document---Despite plaintiff's claim that entire sale consideration was paid, neither the sale deed was executed in his favour, nor he was handed possession of the property---Statements of witnesses also had contradictions with respect to the venue where alleged payment was made---Evidence produced by plaintiff did not inspire confidence and was contrary to natural conduct of parties in a situation similar to the present case---High Court had rightly dismissed the suit of plaintiff---Appeal was dismissed accordingly.

(d) Constitution of Pakistan---

----Art. 185---Judgment of Trial Court and Appellate Court---Inconsistency in findings---Precedence---In case of such inconsistency findings of Appellate Court must be given preference in the absence of any cogent reason to the contrary.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Nawaz through LRs v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300 ref.

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

----O. XLI, R. 33---Appellate Court, power of---Appeal---Multiple defendants--- Judgment and decree of Trial Court---Set aside in appeal only to extent of those defendants impugning judgment and decree of Trial Court---Judgment and decree of Trial Court not set aside against defendant who did not refute claim of plaintiff in appeal---Plaintiff had filed a suit against three defendants---Trial Court decreed the suit in favour of plaintiff---Out of the three defendants, defendant-in-question, did not independently challenge the judgment and decree of Trial Court before the High Court, but was only impleaded as a defendant---High Court set aside the judgment and decree of Trial Court against all the three defendants, in spite of the fact that defendant-in-question had not challenged the judgment and decree of the Trial Court---Validity---Defendant-in-question had not refuted the claim of the plaintiff before the Trial Court, where he was proceeded ex parte or before the High Court--- Defendant in question did not raise any plea before the High Court to the effect that that judgment and decree of Trial Court should be set-aside or that equity, justice and good conscience required intervention of the High Court in his favour---Defendant-in-question neither raised any such plea before the Supreme Court--- In such circumstances judgment and decree of Trial Court could only be set-aside against the other two defendants, who had impugned the judgment and decree of Trial Court in appeal, and not against the defendant-in-question---Supreme Court clarified/ modified the judgment and decree of the High Court to the effect that the judgment and decree of the Trial Court in favour of plaintiff enured/remained effective to the extent of defendant-in-question--- Appeal was dismissed accordingly.

Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 ref.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Appellant.

Muhammad Munir Paracha, Advocate Supreme Court for Respondents No.1 and 2.

Respondent No.3 in person.

Date of hearing: 18th September, 2014.

2015 S C M R 10

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SIKANDAR SHAH---Appellant

Versus

RAZA SHAH and another---Respondents

Criminal Appeals Nos.331 to 333 of 2004, decided on 7th March, 2014.

(On appeal from the judgment dated 12-5-2004 in Cr. A. No.638 of 2003, M. R. No.39 of 2003 and Cr. A. 661 of 2003 passed by the Peshawar High Court, Peshawar)

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Reappraisal of evidence---Murder inside a court room---Judicial confession---Dying declaration supporting conviction---Arrest on the spot---Empties matching recovered weapon--- Accused was convicted by Trial Court under S. 302(b), P.P.C. and sentenced to death on two counts--- Validity--- Accused was apprehended inside the court room along with pistol and live bullets---Empties recovered from the spot matched with the pistol recovered from the accused--- Accused had made a voluntary judicial confession without any coercion or duress, and it was recorded the same day of occurrence after observing all codal formalities---One of the deceased recorded his statement/dying declaration before the police prior to his death wherein he implicated the accused for the crime---Police officer who recorded such statement/dying declaration appeared before Trial Court to confirm that he had recorded such statement on the day of occurrence---Prosecution had proved its case against accused beyond any reasonable shadow of doubt---Sentence of death awarded by Trial Court was upheld---Appeal of accused was dismissed accordingly.

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

----Art. 46---Criminal Procedure Code (V of 1898), S. 161---Dying declaration---Scope---Statement made by deceased before police on the day of occurrence implicating the accused---Statement not signed by a doctor---Effect---Reliance on such statement for conviction---Deceased not related to any prosecution witness or other deceased persons---In the presence of other strong evidence, such a statement could be considered a supportive piece of evidence---Where record suggested that the deceased was an independent person, not related to any prosecution witness or other deceased, then he could not be expected to lie on death bed---Such statement of deceased could be relied upon for convicting the accused.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 and Majeed v. The State 2010 SCMR 55 ref.

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

----S. 302(b)---Qatl-i-amd---Hired assassin---Award of death sentence---Period spent in incarceration since arrest almost equal to imprisonment for life---No reduction/leniency in death sentence---Accused, who was a hired assassin, and fired four shots at the deceased and choose the most vulnerable parts of deceased to ensure his death, did not deserve any leniency in his sentence of death (despite being incarcerated for a period almost equal to imprisonment for life)---Additionally delay in conclusion of appeal was not at all attributable on the part of court, but was caused by adjournments sought by accused on one pretext or another---Appeal was dismissed accordingly.

Dilawar Hussain v. The State 2013 SCMR 1582 and Hasan and others v. The State and others PLD 2013 SC 793 distinguished.

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

----S. 302(b)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Presence at place of occurrence doubtful---Accused and co-accused were alleged to have murdered the deceased inside a court room---Co-accused had made a voluntary judicial confession, without any coercion and duress, that he was hired by the accused to kill the deceased; in such circumstances it did not appeal to a prudent mind that a person hiring services of an assassin would himself participate in the occurrence---In two successive inquiries accused was found innocent on the basis of evidence that he was not present at the spot at the time of occurrence---Abscondment of accused could not be used against him in circumstances of the case---Accused had been rightly acquitted by the High Court---Appeal against acquittal of accused was dismissed accordingly.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Appellant (in Criminal Appeals Nos.331 and 332 of 2004).

S. M. Zafar, Senior Advocate Supreme Court for Respondent No.1 (in Criminal Appeals Nos.331 and 332 of 2004).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.333 of 2004).

M. Aslam Ghuman, Advocate Supreme Court for the State (in Criminal Appeal No.333 of 2004).

Date of hearing: 7th March, 2014.

2015 S C M R 21

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL---Appellant

Versus

MEHBOOB ALAM---Respondent

Civil Appeal No.929 of 2009, decided on 12th September, 2014.

(Against the judgment dated 22-5-2009 of the Lahore High Court, Lahore passed in R.S.A. No.200 of 2004)

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

----S. 12---Contract Act (IX of 1872), S.55---Specific performance of agreement to sell of immovable property---Time not essence of the contract---Willingness of buyer to complete the agreement---Balance consideration deposited in court---Effect---Execution of agreement to sell and the terms and conditions thereof were admitted by the defendant (seller)---Defendant did not set up any defence to the effect that plaintiff (buyer) was not ready and willing to perform his part of the agreement or that he lacked the capacity to do so---Neither from the contents of the agreement nor from the intent and conduct of the parties and/or from any evidence led by the defendant (seller) it was established that time was of the essence---Plaintiff had also deposited the outstanding balance consideration in court, which duly established his bona fide, promptness and willingness---On the contrary had the defendant-seller been willing to perform his obligations, he would have conceded the suit on the first available opportunity, accepted the money and finalized the transaction---Plaintiff had proved that he was maintaining and operating a bank account which had adequate funds lying therein to cover the balance consideration payable---Defendant-seller did not send any notice to the plaintiff demanding balance consideration or notifying cancellation of the said agreement---Although plaintiff had withdrawn the balance consideration deposited in the Trial Court during pendency of appeal before the High Court, but such withdrawal would have no reflection on his conduct to disentitle him from relief of enforcement of agreement to sell---Suit for specific performance of agreement to sell had been rightly decreed---Supreme Court directed the plaintiff to deposit double the amount of balance consideration due to devaluation in currency and increase in price of suit property---Appeal was dismissed accordingly.

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

----O. VIII, R.1---Written statement---Admission of fact---Fact admitted needed no proof, especially when such admission had been made in the written statement.

PLD 1975 SC 242 ref.

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

----O. VI, R.7---Pleadings---Scope---Litigant could not be allowed to build and prove his case beyond the scope of his pleadings.

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

----S. 55---Contract of immovable property---General rule---Time not essence of the contract---In relation to contracts of immovable property, the rule was that time ordinarily was not the essence, however, such rule was by no means an absolute rule, and it was always open to the party claiming exception thereto, to establish otherwise from the contents/text, letter and spirit of the agreement and/or from the intent and conduct of the parties, as well as the attending circumstances.

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

----O. XIII, R.1(3)---Qanun-e-Shahadat (10 of 1984), Art.72---Document taken in evidence---No objection by defendant regarding admissibility and proof of such document---Effect---Such document would validly form part of plaintiff's evidence, and defendant shall be considered to have waived his right to resist the mechanics of the proof thereof.

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

Taqi Ahmed Khan, Advocate Supreme Court for Respondent.

Date of hearing: 12th September, 2014.

2015 S C M R 28

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Sh. Azmat Saeed and Iqbal Hameedur Rahman, JJ

LAND ACQUISITION COLLECTOR, G.S.C., N.T.D.C., (WAPDA), LAHORE

and another---Appellants

Versus

Mst. SURRAYA MEHMOOD JAN---Respondent

Civil Appeal No.23 of 2004, decided on 29th September, 2014.

(On appeal from the judgment dated 22-12-2003, passed by the Lahore High Court, Lahore, in R.F.A. No.393 of 2000)

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

----S. 23---Acquisition of land---Compensation---"Market value" of land acquired, determination of--- Principles--- Contemporaneous transactions of land in the same vicinity---Potential use of land---Term "market-value" as employed in S. 23 of the Land Acquisition Act, 1894 implied the price that a willing purchaser would pay to a willing buyer in an open market arm's length transaction entered into without any compulsion---Such determination must be objective rather than subjective--- While undertaking such exercise, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality may be taken into account---Award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality could not be ignored---Classification of the land in the Revenue Record could not be the sole criteria for determining its value and its potential i.e. the use to which the said land could be put, must also be a factor---For such purposes, the use of the land in its vicinity needed to be examined.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 ref.

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

----S. 23---Acquisition of land---Compensation---Factors to be considered when determining compensation---Landowner was entitled to compensation and not just market-value, hence, factors such as loss or injury occasioned by severing of acquired land from other property of the landowner, loss or injury by change of residence or place of business and loss of profits were also relevant---Delay in the consummation of the acquisition proceedings also had to be considered.

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

----S. 23(1)---Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 13(2)(b)---Acquisition of land for extension of WAPDA grid station---Compensation---Strategic location of land relevant for determining compensation---Amount of compensation for acquired land was determined as Rs.6,000 per marla, which was enhanced to Rs.8,000 per marla by the Referee Judge--- High Court maintained quantum of compensation determined by the Referee Judge---Validity---Potential value of the land in view of its strategic location could not be ignored--- Acquired land was situated on the main road/high way, within the limits of the Municipal Committee, near the Sessions Court, opposite the Cantonment Area , in the vicinity of the Tehsil Municipal Office and the District Courts and was adjoining a (Government) Highway Rest House---Record showed that about three years after the award was announced, the Municipal Committee, sold property near the land in question in an open auction, which fetched price at the rate of Rs.13,750 per marla---Enhancement of rate of compensation to Rs.8,000 per marla by the Referee Judge, and maintained by the High Court, was based on a reasonable and fair appreciation of evidence and was determined by relying on material considerations---Supreme Court maintained compensation rate at Rs.8,000 per marla---Appeal was partly allowed accordingly.

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

----Ss. 3(e) & 23(2)---Acquisition of land by company for a public purpose---Compulsory acquisition charges---Quantum---Whether 15% or 25%---If the land was acquired for a public purpose, even by a company, as defined by S. 3(e) of the Land Acquisition Act, 1894, compulsory acquisition charges were payable at the rate of 15% only---However, when the land was acquired simpliciter by a company for its private use, compulsory acquisition charges were payable at the rate of 25%.

Mst. Sumaira Gul v. Land Acquisition Collector G.S.C. WAPDA, Peshawar and others 2011 SCMR 118 distinguished.

Civil Aviation Authority through Project Director and others v. Rab Nawaz and others 2013 SCMR 1124 ref.

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

----Ss. 3(e) & 23(2)---Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 13(3)---Acquisition of land for extension of WAPDA grid station---Public purpose---Compulsory acquisition charges--- Quantum--- Whether 15% or 25%---Contention of land owner that WAPDA was a company, as defined by S. 3(e) of the Land Acquisition Act, 1894, therefore compulsory acquisition charges were payable at the rate of 25%, instead of 15%---Validity---Purpose for which the land was acquired, was the determining factor for ascertaining compulsory acquisition charges---If the purpose, as in the present case, was public in nature, then compulsory acquisition charges would be payable at the rate of 15%, even if, such acquisition was for a company---However, when the land was acquired simpliciter for a company for its private use only then the compulsory acquisition charges would be payable at the rate of 25%---Land-owner, in the present case, was entitled to compulsory acquisition charges at the rate of 15% only--- Appeal was partly allowed accordingly.

Mst. Sumaira Gul v. Land Acquisition Collector G.S.C. WAPDA, Peshawar and others 2011 SCMR 118 distinguished.

Civil Aviation Authority through Project Director and others v. Rab Nawaz and others 2013 SCMR 1124 ref.

Aurangzeb Mirza, Advocate Supreme Court for Appellants.

Ch. Din Muhammad Meo, Advocate Supreme Court for Respondent.

Ch. Muhammad Iqbal, Additional A.-G. and Rana Shamshad Khan, Assistant A.-G. on Court's Notice.

Date of hearing: 29th August, 2014.

2015 S C M R 43

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Qazi Faez Isa, JJ

BADSHAH GUL WAZIR---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

Civil Petition No.1080 of 2014, decided on 19th September, 2014.

(On appeal from the judgment dated 9-6-2014 in W.Ps. Nos.2547-P and 2833-P of 2013 passed by the Peshawar High Court, Peshawar)

(a) Khyber Pakhtunkhwa Provincial Ombudsman Act (XIV of 2010)---

----Ss. 4 & 6(2)--- Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013), S. 5---West Pakistan General Clauses Act (VI of 1956), S. 4(1)(b) & (c)---Provincial Ombudsman, office of---Tenure of office---Period of four years---Substantive/ accrued right---Amendment repealing/substituting tenure of office of Provincial Ombudsman--- Such amendment would not have retrospective effect--- Appellant was appointed as Provincial Ombudsman for a period of four years in terms of S. 4 of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010, which provided that the Provincial Ombudsman shall hold office for a period of four years---Subsequently Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013) made an amendment in the tenure of office of Provincial Ombudsman by adding that Provincial Ombudsman would hold office for four years or till the age of sixty-two years, whichever was earlier---Before appellant's tenure of four years was complete, he attained the age of 62 years, hence in terms of the amendment he was de-notified as Provincial Ombudsman---Legality---Section 4 of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010 [as amended by S. 5 of Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013)] was not given retrospective effect nor did it contain a non obstante clause---Substituted section, particularly one curtailing substantive rights, did not have "retroactive operation" unless the legislature elected to give it retrospective effect---Amendment made, in the present case, did not contain any element whereby the appointment of appellant as a Provincial Ombudsman was revoked, repealed, withdrawn or cancelled---In the absence of such legislation, the tenure of appellant could not be curtailed in the exercise of administrative powers---Legislature in its wisdom provided statutory protection to the person holding office of Provincial Ombudsman and envisaged his/her removal only if he/she was guilty of misconduct or was physically or mentally incapacitated to perform his/her duties as provided under S. 6(2) of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010---Appellant was appointed as Provincial Ombudsman for a period of four years and no step for his removal was taken pursuant to S. 6(2) of Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010, therefore, he had to be allowed to continue to hold office till expiry of his term of four years---Supreme Court directed that appellant would continue to hold office of Provincial Ombudsman for a period of four years---Appeal was allowed accordingly.

Union of India v. Uday Date AIR 1998 Bombay 157; Akhlaque Hussain Advocate's case PLD 1965 (W.P.) Lah. 147 and Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

Lt. Gen. (Retd.) Jamshaid Gulzar and others v. Federation of Pakistan and others Civil Appeals Nos. 826, 827 and 828 of 2007 and Gulzar Khan v. The Government of KPK Civil Appeal No.116 of 2011 distinguished.

(b) Interpretation of statute---

----Amendment/substitution of an enactment---Curtailing substantive right/accrued right--- Retroactive/retrospective operation--- Scope---Substituted section, particularly one curtailing substantive rights, did not have "retroactive operation" unless the legislature elected to give it retrospective effect---Substituted section could not obliterate accrued rights.

Akhlaque Hussain Advocate's case PLD 1965 (W.P.) Lah. 147 and Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

(c) Vested right---

----Executive cannot obliterate a vested right.

Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

Asaf Fasihuddin Vardag, Advocate Supreme Court for Petitioner.

Abdul Latif Yousafzai, A.-G. KPK for Respondent No.1.

Afnan Karim Kundi, Advocate Supreme Court for Respondent No.4.

Date of hearing: 17th September, 2014.

2015 S C M R 54

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

BANKERS EQUITY (LTD.) and others---Petitioners

Versus

Messrs BENTONITE PAKISTAN LTD. and others---Respondents

Civil Petition No. 752-L of 2010, decided on 12th March, 2013.

(On appeal from the judgment dated 24-2-2010 passed by the Lahore High Court, Lahore in R.F.A. No.579 of 2002)

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

----Ss. 9(1) & (2)---Recovery suit---Non-compliance with Ss. 9(1) & (2) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Rectifiable mistake/omission---Recovery suit filed by plaintiff-institution was solely rejected on the ground that it had failed to comply with Ss. 9(1) & (2) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Validity---Defendant in all fairness admitted that omission/mistake on part of plaintiff-institution was rectifiable and if plaintiff amended the plaint within a period of 15 days, defendant had no objection---Supreme Court in view of the fair stand taken by the defendant set aside the impugned judgment and directed the plaintiff to file amended suit within 15 days---Appeal was allowed accordingly.

Hamid Shabbir Azar, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Petitioners.

Respondents Nos.2 and 6 in person.

Ijaz Anwar, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent No.4.

Date of hearing: 12th March, 2013.

2015 S C M R 56

[Supreme Court of Pakistan]

Present: Dr. Nasim Hasan Shah, Ali Hussain Qazilbash and Saad Saood Jan, JJ

REHAM DAD---Appellant

Versus

Syed MAZHAR HUSSAIN SHAH and others---Respondents

Criminal Appeal No.56 of 1986, decided on 14th January 1987.

(On appeal from the order dated 7-12-1985 of the Lahore High Court, Lahore in Criminal Miscellaneous No.2807/B of 1985)

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

----Ss. 91 & 204---Private complaint---Issuance of process against accused---Summoning of accused by Trial Court to face trial---Ensuring future appearance before court---Requirement---Trial Court was required to proceed under S. 91, Cr.P.C. and to direct accused to execute bond with or without sureties for his presence in the court---Section 91, Cr.P.C. by necessary implication also empowered the court to commit the person present in court to custody if he failed to give security for his attendance. [For latest view see 2014 SCMR 1762].

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

----Ss. 204, 496, 497 & 498---Private complaint--- Issuance of process against accused---Scope---"Sufficient grounds for proceeding"---Process was to be issued to the accused when the court taking cognizance of the offence was of the opinion that there were sufficient grounds for proceeding---Such opinion was not to be equated with the existence of reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. [For latest view see 2014 SCMR 1762].

Ch. Muhammad Abdul Wahid, Senior Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant.

Nemat Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents Nos.1 to 17.

M. Nawaz Abbasi, Assistant A.-G. Punjab and Rao Muhammad Yousuf Khan, Advocate-on-Record for the State.

Date of hearing: 14th January, 1987.

2015 S C M R 58

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

COMMISSIONER MULTAN DIVISION, MULTAN and others---Petitioners

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Petition No. 569-L of 2011, decided on 29th October, 2014.

(On appeal from the judgment/order dated 3-3-2011 passed by Lahore High Court, in Writ Petition No.2686 of 2001)

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

----Ss. 5(5) & 19---State land leased to allottee---Proprietary rights in leased land---Proof---Tehsil Register maintained by Provincial Government---Resumption of leased land---Register of the concerned Tehsil maintained by the Provincial Government revealed that the Commissioner had not recommended conferment of proprietary rights in the leased land, and accordingly lease in question was not approved for transfer of proprietary rights---Heirs of allottee thus lacked entitlement to obtain proprietary rights of the leased land---Supreme Court remanded the case to the Board of Revenue for reviewing its order whereby allottee was held to have become entitled to grant of proprietary rights of the leased land---Supreme Court directed that the Board of Revenue while reviewing its order should bear in mind recommendations made by its Judicial Member for allotment of alternate land to the allotee and his heirs on account of their long standing service rendered for more than 100 years in the development of the land leased out to them---Appeal was allowed accordingly.

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

----O. XLI, R. 27---Additional evidence before Appellate Court---Supreme Court, jurisdiction of--- Scope--- Authentic documentary evidence consistent with the pleadings and relevant to the findings of the case---Additional evidence facilitating resolution of controversy---Such additional evidence was admissible on record in the Appellate Court---Jurisdiction of the Supreme Court to do complete justice between the parties favoured additional evidence to be admitted in order to meet the ends of justice.

Muhammad Tariq v. Shamsa Tanveer PLD 2011 SC 151 and Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan PLD 1992 SC 96 ref.

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

----S. 19---State land leased to allottee---Resumption of leased land---Pre-requisites---Agreement to sell or sale deed of leased land---Unless a sale had been completed, inter alia, by transfer of possession of leased land under an agreement to sell and by conversion of such land to unlawful use, the allottee was not liable to penal action (i.e. resumption of leased land).

Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821 ref.

(d) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 7(2), proviso---West Pakistan Land Revenue Act (XVII of 1967), S.164---Board of Revenue---Revisional jurisdiction---Scope---Purported revisional jurisdiction exercised by Member Board of Revenue (Judicial) to annul/recall an earlier revisional order passed by Member Board of Revenue (Colonies)---Legality---Order passed by Member Board of Revenue (Judicial) was devoid of legal authority since S. 7(2) of West Pakistan Board of Revenue Act, 1957 barred revisional jurisdiction of the Board for adjudicating the correctness or validity of a revisional order passed by Single Member of the Board---Appeal was disposed of accordingly.

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

----S. 30---Allotte of State land---Allottee entering into agreement to sell State land prior to grant of proprietary rights in such land---Liberal treatment was accorded by law to such agreement to sell, concluded by allottee with a vendee in anticipation of securing proprietary rights in the State land---Such agreement to sell being contractual was valid inter partes but the same could not be enforced until proprietary rights were conferred on the allottee by the State.

Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821 ref.

Ch. M. Iqbal, Additional A.-G. and Malik M. Sharif, Naib Tehsildar for Petitioners.

M. Asif Saeed Rana, Advocate Supreme Court for Respondents.

Date of hearing: 4th August, 2014.

2015 S C M R 74

[Supreme Court of Pakistan]

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

GOVERNMENT OF THE PUNJAB through Chief Secretary and others---Appellants

Versus

AAMIR JUNAID and others---Respondents

Civil Appeal No.4-L of 2014, decided on 28th March, 2014.

(On appeal from the judgment dated 19-6-2013 of the Lahore High Court, Lahore passed in W.P. No. 12113 of 2010)

Civil service---

----Contract employment---Advertised posts---Selection process---Irregularities and non-observance of codal formalities in selection process---Termination from service---Reinstatement in service after re-processing selection of each appointee---Locus poenitentiae, rule of---Scope---Respondents participated in the selection process, whereafter they were issued appointment letters and joined their respective services---Subsequently respondents were issued termination letters on the basis that their appointments had been made without observing codal formalities, and the official who had signed their appointment letters was not competent to do so---Respondents filed constitutional petition before the High Court, which was allowed and impugned termination orders were set aside with the directions that a Committee should be constituted to re-process the case of each respondent; that in case any of the respondents had submitted a fake document, or there was any criminal case pending against him, or he was not a resident of the area for which recruitments were made or otherwise did not meet the eligibility criteria provided in the advertisement on the basis of which he was appointed, such respondent shall not be inducted into service, and that all other respondents shall be deemed to have been reinstated into service with effect from the date on which their services were terminated---Validity---Such order passed by the High Court was absolutely valid and it had been left to the department itself to scrutinize/examine the eligibility of the respondents---High Court gave directions to retain those who passed the eligibility test by applying the rule of locus poenitentiae, notwithstanding that there was some irregularity in the process of selection, may be on account of one of the members (of the recruitment committee) who was said to be incompetent to act as appointing authority, and those who were not eligible/qualified were to be relieved from service---Department had to act fairly in terms of the directions of the High Court and take further action---Supreme Court directed that re-selection process, as mandated by the High Court, should be completed within a period of two months without fail---Appeal was dismissed accordingly.

Imtiaz Ahmed Kaifi, Additional A.-G. for Appellant.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents.

Mian Jaffer Hussain, Advocate Supreme Court for Applicant (in C.M.A. 1738-L of 2013).

Date of hearing: 28th March, 2014.

2015 S C M R 77

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ

INSPECTOR-GENERAL OF POLICE, PUNJAB---Appellant

Versus

TARIQ MAHMOOD---Respondent

Civil Appeal No. 52 of 2012, decided on 25th April, 2013.

(On appeal from the judgment dated 20-10-2011 of the Punjab Service Tribunal, Lahore passed in Appeal No.3039 of 2010)

Civil Service Rules (Punjab)---

----R. 7.3---Fundamental Rules, R. 54---Reinstatement in service---Back benefits, entitlement to--- Payment of back benefits on reinstatement in service---Scope---Police official was dismissed from service due to registration of F.I.R. and civil suit filed against him---Police official filed revision petition before the Inspector General of Police, which was kept pending till the decision of F.I.R. case and civil suit by the court---Subsequently police official was acquitted from the F.I.R. case and as a result his revision petition was allowed and he was reinstated in service---Service Tribunal allowed payment of back benefits to the police official for the period during which he remained out of service---Validity---Grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department was a rule and denial of such benefits was an exception on the proof that such person had remained gainfully employed during such period---Entitlement of back benefits of a person had to be determined on the basis of facts of each case independently---Police official could not be held responsible for the period during which his revision petition was kept pending due to the F.I.R. and civil suit, because such pendency was on account of the act of the police department---Revision petition filed by police official was kept pending till the decision of the criminal as well as civil case, which had no relevance because unless he had been found guilty by the Court, he was not debarred from performing his duty---Police official was entitled to back benefits, as it was the police department, which on basis of a wrong opinion kept him away from performing his duty---Police official was entitled to back benefits from the date of filing revision petition till his reinstatement in service---Appeal was dismissed accordingly.

Muhammad Hussain and others v. EDO (Education) and others 2007 SCMR 855; Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi 2010 SCMR 11; Sher Muhammad Shahzad v. District Health Officer 2006 SCMR 421; Binyamin Masih v. Government of Punjab through Secretary Education, Lahore 2005 SCMR 1032; General Manager/Circle Executive Muslim Commercial Bank Limited v. Mehmood Ahmed Butt 2002 SCMR 1064; Pakistan through General Manager, P.W.R., v. Mrs. A.V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Secretary to the Government of Pakistan 1994 SCMR 1801 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Jawwad Hassan, Additional A.-G. for Appellant.

Aftab Alam, Advocate Supreme Court for Respondent.

Date of hearing: 25th April, 2013.

2015 S C M R 92

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Umar Ata Bandial, JJ

Mst. ROOH AFZA---Appellant

Versus

AURANGZEB and others---Respondents

Civil Appeal No. 568 of 2008, decided on 26th August, 2014.

(On appeal from judgment of Peshawar High Court, Peshawar dated 7-4-2008, passed in Civil Revision No.489 of 2005)

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

----Ss. 13 & 14---Suit for possession through pre-emption---Pre-emptor not appearing as witness before the Trial Court without any valid justification---Effect---Pre-emptor exercised her right of pre-emption by making the requisite Talbs, and the suit for possession through pre-emption was also instituted by her in person---Subsequently without any valid justification, the pre-emptor did not appear before the Trial Court as witness for exercising her right of pre-emption, but for such purpose, she gave special power-of-attorney to her husband---Suit for possession through pre-emption had been rightly dismissed by the High Court in such circumstances---Appeal was dismissed accordingly.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

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

----S. 13---Suit for possession through pre-emption---Performance of Talb-i-Muwathibat---Lapse of 10-15 minutes in performing Talb-i-Muwathibat---Effect---Fatal to right of pre-emption--- Slightest lapse of time in performance of Talb-i-Muwathibat was fatal to the case of the pre-emptor---No redundancy could be attributed in performance of Talb-i-Muwathibat to accommodate a pre-emptor who had not been vigilant in making such Talb---Pre-emptor consumed 10-15 minutes to discuss the matter with her family members before taking the decision of exercising her right of pre-emption---Talb-i-Muwathibat was not performed in accordance with law in such circumstances---Suit for possession through pre-emption had been rightly dismissed by the High Court---Appeal was dismissed accordingly.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Muhammad Nazeef Khan v. Gulbat Khan 2012 SCMR 235; Sonabashi Kuer v. Chaudhary Ramdeo Singh AIR 1951 Pat 521 and Muhammad Ahmad Said Khan v. Madho Prasad 35 Ind Cas 911 ref.

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

----S. 13--- Qanun-e-Shahadat (10 of 1984), Art. 79--- Suit for possession through pre-emption---Talb-i-Ishhad---Attestation by two witnesses---Non-appearance of one of the witnesses of Talb-i-Ishhad in court---Effect---Fatal to right of pre-emption---Plea of pre-emptor that one of the attesting witnesses of Talb-i-Ishhad, who was also the son of the pre-emptor, could not appear in court as witness as he was out of the country at the relevant time---Validity---Notice of Talb-i-Ishhad had to be attested by two truthful witnesses---Even if one of the witness of Talb-i-Ishhad was out of the country at the relevant time, he could have come to Pakistan to appear in the witness box in support of his mother's (pre-emptor's) claim---Suit for possession through pre-emption had been rightly dismissed by the High Court in such circumstances---Appeal was dismissed accordingly.

Abdul Khan v. Ramzano Bibi PLD 2013 SC 193 and Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 ref.

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

Haji Muhammad Zahir Shah, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 26th August, 2014.

2015 S C M R 101

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Qazi Faez Isa, JJ

ROYAL MANAGEMENT SERVICES (PVT.) LTD. and another---Petitioners

Versus

The CHAIRMAN SECP, ISLAMABAD and others---Respondents

Civil Petitions Nos.978 and 979 of 2014, decided on 23rd October, 2014.

(On appeal from the judgment dated 22-5-2014 in Constitutional Petitions Nos.D-3158 and D-3159 of 2010 passed by the High Court of Sindh, Karachi)

Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980)---

----S. 19(1)(b)---Securities and Exchange Commission of Pakistan Act (XLII of 1997), S. 5(5)---Securities and Exchange Commission (Amendment) Act (XVIII of 2013), S. 4---Constitution of Pakistan, Art.185(3)---Management companies ("companies") of Modaraba---Interest of investors, protection of---Misuse/misappropriation of Modarabas by companies---Effect---Removal and substitution of companies with another Modarabas management company---Plea of companies that Registrar of Modarabas had removed and substituted them from management of Modarabas at a time when Securities and Exchange Commission of Pakistan was not properly constituted, as it did not have the prescribed minimum of five or a maximum of seven members on the Board---Validity---Modarabas were managed for the benefit of investors and thus the companies managing them must act solely for the benefit of investors---When Modarabas were being misused/misappropriated by those who were managing them, or in other words the interest of investors was being compromised, the question of composition of the Board faded away---Securities and Exchange Commission (Amendment) Act, 2013 contained a saving and validation clause to cover the deficiency in the constitution of the Board, and the said clause was not assailed before the High Court or the Supreme Court---Even if for argument sake the Board was incomplete at the time when the Registrar of Modarabas passed the order, it would not change the fact that companies in question were not running the Modarabas in accordance with the law, therefore, they had no ground to object to their removal and substitution with another Modaraba management company---Petition for leave to appeal filed by companies was dismissed accordingly and leave was refused.

Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 ref.

Makhdoom Ali Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Petitioners.

Zahid F. Ebrahim, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record, Qaiser Inam, Dy. Director and Ibrar Saeed, L.O. for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 23rd October, 2014.

2015 S C M R 106

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Amir Hani Muslim and Dost Muhammad Khan, JJ

SECRETARY, MINISTRY OF SCIENCE AND TECHNOLOGY and another---Petitioners

Versus

MUHAMMAD ANWAR BUTT---Respondent

Civil Petition No.804 of 2014, decided on 9th September, 2014.

(On appeal from judgment dated 1-4-2014 passed by the Islamabad High Court of Islamabad, in W.P. No.3221 of 2012)

National Institute of Electronics Service Rules, 1998---

----R. 8(1)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 8B (4), (5), (6) & (7)---Pension, calculation of---Retirement while working on an Acting Charge basis post---Last pay drawn---Illegal appointment on Acting Charge basis---Effect---Employee of National Institute of Electronics, whose original basic scale was BS-19, was appointed to a post in BS-20 on Acting Charge basis---Employee reached his age of superannuation while working in the BS-20 post on Acting Charge basis---Upon his retirement employee was issued Last Pay Certificate in BS- 19 instead of BS-20---Legality---Employee in question was not validly appointed on Acting Charge basis in BS-20---For purposes of appointment on Acting Charge Basis, the procedure laid down under Rr. 8B (4), (5), (6) & (7) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 would be applicable to employees of National Institute of Electronics---In terms of the said Rules, first there had to be a vacancy and the person appointed on such vacancy on Acting Charge basis had to be the senior most officer in his pay scale/cadre and was otherwise eligible for promotion, which eligibility should also qualify tenural limitations---Material available on record did not reveal that the employee in question was the senior most officer in BS-19, besides he was not recommended by the Selection Board as provided under R. 8(1) of the National Institute of Electronics Service Rules, 1998, for appointment on Acting Charge basis in BS-20---Federal Minister concerned who had appointed the employee to BS-20 on Acting Charge basis did not have the competence to do the same without the recommendations of the Selection Board---Appointment of employee in question in BS-20 on Acting Charge basis was unwarranted in law being invalid, thus he could not claim pensionary benefits of BS-20---Appeal was allowed accordingly.

Province of Sindh and others v. Ghulam Farid 2014 SCMR 1189 ref.

Nemo for Petitioners.

M. Farooq Raja, Advocate-on-Record and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

Date of hearing: 9th September, 2014.

2015 S C M R 112

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

ARSHAD ALI TABASSUM---Petitioner

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE---Respondent

Constitutional Petition No.11 of 2014, decided on 1st July, 2014.

(Petition under Article 184(3) of the Constitution against Notification dated 24-5-2013 passed by the Registrar Lahore High Court, Lahore)

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution---Post of Additional District and Sessions Judge---Interview---Interview Committee, opinion of---Non-interference by the Supreme Court---Allegation of malice on part of members of Interview Committee---Supreme Court could not substitute opinion of the Interview Committee on a bald allegation made by an unsuccessful candidate, who lost his chance in the interview---Constitutional petition was dismissed accordingly.

Asif Mahmood Chughtai, Advocate and 17 others v. Government of Punjab through Chief Secretary and others 2000 SCMR 966; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 and Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 rel.

(b) Constitution of Pakistan---

----Art. 184(3)---Punjab Civil Servants Act (VIII of 1974), S. 10---Constitutional petition before the Supreme Court under Art.184(3) of the Constitution---Post of Additional District and Sessions Judge---Interview---Interview Committee, opinion of---Non-interference by the Supreme Court---Petitioner appeared in the written examination for the post of Additional District and Sessions Judge and secured third highest marks in the Province---Petitioner was called for interview but obtained only 40 marks out of a total of 100 marks, which was less than required 50% marks to be eligible for appointment---Petitioner alleged malice on part of Interview Committee and contended that he was not recommended for appointment for the reason that his services as a civil judge were terminated on the charge of misconduct, which was used by the Interview Committee to oust him from the selection process---Validity---No measuring apparatus was available with the Supreme Court to determine that the petitioner was deferred/unsuccessful in the interview only for the reason of his misconduct as a civil judge---Presumption was that Interview Committee must have given the petitioner (40) marks after judging his ability without being influenced by his earlier misconduct, as the Interview Committee was not acting as a Disciplinary Committee dealing with misconduct of petitioner---Since the petitioner could not fulfil the requisite criteria for the post of Additional District and Sessions Judge, therefore, he was not recommended for appointment by the Selection Committee---Petitioner was unable to establish any malice on part of the Interview Committee---No illegality had been committed to warrant interference by the Supreme Court in its constitutional jurisdiction---Constitutional petition was dismissed accordingly.

Petitioner in person.

Ch. Muhammad Iqbal, Additional A.-G. Punjab for Respondent.

Date of hearing: 1st July, 2014.

2015 S C M R 116

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

QUAID-E-AZAM'S MAZAR MANAGEMENT BOARD---Petitioner

Versus

PROVINCE OF SINDH through Secretary Housing and Town Planning Sindh, Karachi and others---Respondents

Civil Petition No.82-K of 2006, decided on 14th February, 2012.

(On appeal from the judgment dated 16-12-2005 of the High Court of Sindh, Karachi passed in C.P. No.953 of 2004)

(a) Quaid-i-Azam Mazar's Protection and Maintenance Ordinance (XXVII of 1971)---

----Preamble---Karachi Building and Town Planning Regulations, 2002, Regln. 25-1 & 10.2---Constitution of Pakistan, Arts. 185(3) & 270A---Quaid-e-Azam's Mazar Management Board ("petitioner-Board")---Height restriction on buildings within 3/4 miles of the radius of Quaid-e-Azam's Mazar ("Mazar")---Petitioner-Board filed constitutional petition before the High Court contending that it had passed a resolution on 29-1-1979, wherein it was decided that bye-laws may be made by the Metropolitan Corporation and Development Authority to regulate height of all structures within three-fourth of a mile from the Mazar; that the President of Pakistan at that time issued a letter dated 29-3-1980 , wherein it was mentioned that no building in the area of the Mazar would be constructed higher than the level of the mausoleum podium; that the Provincial Government issued a notification on 10-09-1991, whereby height restriction on buildings with the specified vicinity of the Mazar was imposed; that all buildings constructed 91 feet above the mean sea level within 3/4 mile radius of Mazar should be declared as illegal and derogatory to the sanctity and dignity of the Mazar---High Court dismissed the constitutional petition holding that President's directive and notification of Provincial Government had not attained the force of law and only after an amendment was incorporated in Regulation No. 25-1-10 of the Karachi Building and Town Planning Regulations 2002, the height of buildings within 3/4 miles radius of the Mazar was restricted to 91 feet---Validity---In the resolution passed by the petitioner-board on 29-1-1979, compliance with the suggestion regarding height restriction was entrusted to the Metropolitan Corporation, but the same was not unfortunately complied with till the year 2002---No maximum height (of 91 feet) had been mentioned in the resolution---Directive of President of Pakistan also did not mention any height restriction except that no building in the area would be constructed higher than the level of the Mausoleum's podium---Notification of the Provincial Government did not talk about any directive of the President but only mentioned that the Provincial Government re-affirmed the resolution of the petitioner-board dated 29-1-1979---Desire and whims of the President could not be equated with an order under Art. 270A of the Constitution, and therefore there was no question of it being saved under the said Article---High Court had rightly dismissed the Constitutional petition---Petition for leave to appeal was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 270A---Affirmation of President's Orders, etc.---Scope---Under Art. 270A of the Constitution only those enactments had been saved which were made in exercise of powers derived from any Proclamation, President's directive, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws and such enactment had been made on the basis of which powers were exercised---Desire, whims or fancy of the President could not be equated with an order under Art. 270A of the Constitution, and therefore there was no question of it being saved under the said Article.

Naeem-ur-Rehman, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Khalid Anwar, Senior Advocate Supreme Court for Respondents Nos. 5 and 6.

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

Zulfiqar Ahmed Bhutta, Advocate Supreme Court along with Mehmood A. Sheikh, Advocate-on-Record for Respondent No.4.

Dil Muhammad Alizai, D.A.-G. applicant in C.M.A. 249-K of 2006.

Date of hearing: 14th February, 2012.

2015 S C M R 126

[Supreme Court of Pakistan]

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

MUHAMMAD AHMED KHAN---Appellant

Versus

The BANK OF PUNJAB and others---Respondents

Civil Appeal No.428-L of 2012, decided on 10th June, 2013.

(Against the judgment dated 28-4-2009 of the Lahore High Court, Bahawalpur Bench passed in R.F.A. No.8 of 2007)

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

----S. 9---Recovery suit against partnership---Partnership firm---Partner---Joint and several liability---Scope---Partner having dispute with other partners in the partnership-firm wrote to bank that he would not be liable for any future financing/loan made to the firm---Subsequent to such letter other partners took out a loan from the bank---Effect---Despite the letter partner in question remained a partner in the firm throughout, as there was no proof of dissolution instrument or other legal mode to show that partnership firm had been dissolved---Partner in question would remain jointly and severally liable for the loan taken out by other partners despite the letter written to the bank and despite having a dispute with the other partners could not be exonerated and discharged of his liability as partner of the firm, till the time the firm remained intact---Appeal was dismissed accordingly.

Iftikhar Ullah Malik, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Appellant.

Abdul Hameed Chohan, Advocate Supreme Court for Respondent No.1.

Nasir Mehmood, Advocate Supreme Court for Applicant.

Date of hearing: 10th June, 2013.

2015 S C M R 128

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

AMJAD IQBAL---Petitioner

Versus

Mst. NIDA SOHAIL and others---Respondents

Constitutional Petition No.989 of 2014, decided on 9th September, 2014.

(On appeal from the order dated 12-5-2014, passed by Lahore High Court, Rawalpindi Bench in C.R. No.489 of 2014)

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 13(3)---Civil Procedure Code (V of 1908), O. XXI, R. 54---Constitution of Pakistan, Art. 185(3)---Family Court---Decree for maintenance---Execution of decree---Attachment of immoveable property---Gift/sale of such attached property by judgment-debtor---Sham transaction to defeat the purpose of decree---Daughter had filed a suit for maintenance against her father---Suit was decreed, however, father failed to honour the same---Father was detained in civil prison, but was subsequently released when his second wife gave an undertaking before the court to satisfy the decree---Four days after his release father gifted his property/house to his wife, who further sold the same to the petitioner---Daughter moved an application before the Executing Court for recovery of decretal amount by selling the house in question---Executing Court declared the gift/hiba made by the father to be unlawful and proceeded to attach the house for purpose of satisfying the decree---Validity---Once the gift/hiba itself was declared to be unlawful, any further transaction on the basis of the said gift would only be a nullity in the eye of law for that the wife i.e. donee of the gift did not have legal title to the house to sell the same to the petitioner---Both gift as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree for maintenance was not satisfied---Decree was for the maintenance of the daughter, but unfortunately, the father in sheer disregard of his parental obligation had indulged in making unlawful transactions---Court while exercising parental jurisdiction could not just sit and be a spectator in such unholy and unlawful conduct of the father---Section 13(3) of the West Pakistan Family Courts Act, 1964, empowered the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue (including selling the immovable property of the defaulter)---Order of attachment of the house of the father passed by the Family Court in execution of the decree passed by it, was in accordance with law---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Tariq v. Zulfiqar Ali and others 2005 SCMR 1395; Noor Muhammad v. Mst. Zainab Bibi and others 1992 CLC 1470 and Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another 1992 CLC 1323 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 17---Civil Procedure Code (V of 1908), O. XXI---Family Court---Decree for maintenance, execution of---Non-applicability of C.P.C---Technical trappings of execution of decree provided in the Civil Procedure Code, 1908, were excluded from application before the Family Court in execution of a decree for maintenance.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 13(3)---West Pakistan Land Revenue Act (XVII of 1967), S. 90---Family Court---Decree for maintenance, execution of---Attachment and sale of judgment-debtor's immoveable property---Section 13(3) of the West Pakistan Family Courts Act, 1964, empowered the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue---West Pakistan Land Revenue Act, 1967, provided various modes of recovery of arrears of land revenue and one of the modes provided was selling the immovable property of the defaulter.

Ansar Nawaz Mirza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Kamran Murtaza, Advocate Supreme Court (as gratis) for Respondent No.1.

Agha Muhammad Ali Khan, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 9th September, 2014.

2015 S C M R 133

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Qazi Faez Isa, JJ

The STATE/ANF---Petitioner

Versus

ALEEM HAIDER---Respondent

Criminal Petition No. 70-K of 2014, decided on 5th November, 2014.

(Against the order dated 5-5-2014 passed by High Court of Sindh at Karachi in Cr. B. A. No.364 of 2014)

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 161---Constitution of Pakistan, Art. 185(3)---Possession of narcotic---Bail, cancellation of---Statements of prosecution witnesses under S. 161, Cr.P.C. fully implicating the accused---Effect---Anti-Narcotics Force found 202 kilograms of heroin from a container which contained an export consignment---Huge quantity of heroin was recovered---Accused was the main exporter of the consignment---Record showed that accused contacted the freight forwarder for export, who in turn hired the services of a clearing agent---Accused had obtained possession of a godown for packing the consignment, which fact was confirmed by the manager of the godown to the police---Driver of the trawler which contained the consignment stated before investigating officer that the consignment was delivered to him by the accused---Statements of prosecution witnesses (under S. 161, Cr.P.C.) fully implicated the accused, connecting him with the alleged offence---Bail granted to accused by High Court was cancelled in such circumstances---Petition for leave to appeal was converted into appeal and allowed accordingly.

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

---Ss. 498, 161 & 497---Grant/refusal of bail---Material considered by court---Statements of prosecution witnesses under S. 161, Cr.P.C.---Grant of bail or its refusal depended on the material inclusive of S.161, Cr.P.C. statements of prosecution witnesses, which could not be brushed aside on the ground that it would require deeper appreciation of evidence.

Habib Ahmed, Advocate Supreme Court for Petitioner.

Muhammad Akbar Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent.

Maqsood Ahmed Mahar, Assistant Director, ANF, Clifton Karachi on Court's Notice.

Date of hearing: 5th November, 2014.

2015 S C M R 137

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.305 of 2007, decided on 17th November, 2014.

(On appeal against the judgment dated 19-4-2006 passed by Lahore High Court, Lahore in Criminal Appeal No.1143 of 1999 and Murder Reference No.443 of 1999)

Penal Code (XLV of 1860)---

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Same set of evidence disbelieved qua involvement of co-accused but relied upon for convicting accused on a capital charge---Propriety---Both eye-witnesses of the occurrence were not residents of the locality where occurrence took place and were chance witnesses---Presence of eye-witnesses at the spot was doubtful---Story introduced by eye-witnesses that they were travelling with the deceased in a vehicle before being intercepted by the accused party was not supported by any connecting material---Role ascribed to one of the co-accused was in contradiction to the medical evidence---Medical evidence also did not support the ocular account qua number of injuries on the body of deceased---Only one firearm injury on thigh of deceased was attributed to accused---Empty of weapon attributed to accused was sent for chemical analysis belatedly---Both eye-witnesses had admitted that accused had no direct enmity to commit the offence---Same set of evidence which was disbelieved qua involvement of co-accused persons could not be relied upon to convict the accused on a capital charge---Prosecution was unable to prove its case against accused beyond shadow of doubt---Appeal was allowed and accused who was sentenced to death was acquitted of the charge.

Muhammad Akram v. The State 2012 SCMR 440 and Mir Muhammad @ Miro v. The State 2009 SCMR 1188 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, Additional P.-G. and Ch. Akhtar Ali, Advocate-on-Record for the State.

Date of hearing: 17th November, 2014.

2015 S C M R 142

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

ALI SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.397 of 2007 out of Jail Petition No.482 of 2005, decided on 22nd November, 2014.

(On appeal from the judgment dated 18-1-2006 of the Lahore High Court, Multan Bench passed Criminal Appeals. Nos. 184 and 324 of 2006 and Murder Reference No.221 of 2000)

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Case of insufficient evidence---Inimicality between complainant and accused---Motive for murder not believable---Co-accused lady was alleged to have murdered her husband with the help of accused---Alleged motive for the occurrence was that co-accused-lady was having an affair with the accused, and wanted to get her daughter married to the accused against the wishes of the deceased---Such motive set up by prosecution presented an irreconcilable contradiction, hence was beyond credulity---Record showed that complainant (brother of deceased), who was also an alleged eye-witness of the incident, was not on good terms with the deceased and his co-accused wife, due to a property dispute--- Complainant clearly was an interested and inimical witness who could have a good reason to falsely implicate his co-accused sister-in-law---Other eye-witness of the occurrence could not satisfactorily explain his presence at the place of incident at midnight---Fact that a planned murder was committed in a room full of children under the light of an electric bulb with the front door open for everyone to view the same, was hard to believe---Fact that three eye-witnesses let three killers get away, despite the fact that only one of them was armed with a dagger was incredulous---One of the co-accused was acquitted and on the same piece of evidence present accused and co-accused were convicted---Present case was a case of insufficient evidence and prosecution failed to prove its case beyond reasonable doubt---Accused, who was sentenced to death and co-accused who was sentenced to life imprisonment were both acquitted of the charge of murder---Appeal was disposed of accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. M. Waheed Khan, Additional P.-G., Punjab and Ch. Akthar Ali, Advocate-on-Record for the State.

Date of hearing: 18th November, 2014.

2015 S C M R 148

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Qazi Faez Isa, JJ

MUHAMMAD ATTIQUE---Petitioner

Versus

JAMI LIMITED and others---Respondents

C.R.P. No.144 of 2010 in C.A. No. 772 of 2005, decided on 24th September, 2014.

(On review against the judgment dated 4-6-2010 passed by this Court in C.A. No. 772 of 2005)

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

----S. 19(2)---Civil Procedure Code (V of 1908), O.XXI---Decree of Banking Court---Execution---Applicability of C.P.C.---Section 19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such manner as the Banking Court may, at the request of the decree-holder, consider appropriate including recovery as arrears of land revenue---Court had the discretion to adopt any of the said modes but once the court opted to execute the decree in accordance with the provisions of the Code of Civil Procedure, 1908, it could not depart therefrom.

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

----O. XXI, Rr. 54 & 66---Execution of decree---Auction of judgment-debtor's immoveable property---Proclamation of sale---Purpose---Wide publicity---Purpose behind enactment of O. XXI, Rr. 54 & 66, C.P.C., was to give wide publicity to the sale of the property so that maximum number of people may turn up to participate in it and give bids that matched the price the property deserved.

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

----O. XXI, Rr. 54 & 67---Execution of decree---Auction of judgment-debtor's immoveable property---Mode of making proclamation of sale---Directory provision---Scope---Contention that the provisions contained in O. XXI, Rr. 54 & 67, C.P.C., were only directory in nature and not mandatory, thus failure to comply therewith could not undo an auction---Validity---Such contention was correct so long as it did not cause prejudice to any of the stakeholders, but where it was otherwise, failure to comply with the said provisions could not be brushed aside without due application of mind--- Court had to undo a sale if failure to comply with the said provisions caused injustice, as said provisions had been enacted to advance and not impede the cause of justice.

Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337 ref.

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

----O. XXI---Limitation Act (IX of 1908), First Sched., Arts. 166 & 181---Execution of decree---Auction of judgment-debtor's property---Judgment-debtor not served---Setting aside of auction---Limitation---Extension in period of limitation---Contention that where a specific period had been clearly prescribed by Art. 166, of the Limitation Act, 1908, for setting aside the sale in execution of a decree, resort could not be had to the residuary Art. 181 to extend the period of limitation--- Validity---Such contention was correct, but where a person affected by the sale had not been served and the proceedings ending in auction had been conducted at his back, Art. 181 and not Art. 166 of the Limitation Act, 1908, would apply.

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

----O. XXI, Rr. 64 & 65---Execution of decree---Auction of judgment-debtor's property---"Sale"---Meaning---Word "sale" meant fall of hammer and not its confirmation by the Court.

Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din AIR (29) 1942 Lahore 142 and Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108 ref.

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

----O. XXI, R. 66---Execution of decree---Auction of judgment-debtor's property---Proceedings before Executing Court adjourned sine die---Resumption of proceedings---Fresh notice had to be issued to the judgment-debtor on resumption of proceedings before the Executing Court.

(g) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---Supreme Court could review its judgment or order if an error of law or fact had materially affected the merits of the case.

Commissioner of Income Tax, Peshawar v. Messrs Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. and 6 others 2008 PTD 169 ref.

Hamid Khan, Senior Advocate Supreme Court for Petitioner.

Sh. Zamir Hussain, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondents Nos.1 to 7.

Date of hearing: 24th September, 2014.

2015 S C M R 155

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan, Umar Ata Bandial, Dr. Muhammad Al-Ghazali, HM-I and Dr. Muhammad Khalid Masud, HM-II, JJ

IMRAN alias DULLY and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 7(S) of 2011 along with Criminal Shariat Appeal No.26 of 2009, decided on 13th November, 2014.

(On appeal from the judgment dated 15-7-2008 passed by the Federal Shariat Court, Islamabad in Jail Criminal Appeal No.195/I of 2003 and Criminal Murder Reference No. 16/I of 2003)

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

----Ss. 302(b) & 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Constitution of Pakistan, Art.203F---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, zina-bil-jabr liable to tazir---Shariat appeal---Benefit of doubt---Case of no evidence---Last seen evidence not reliable---Accused was alleged to have kidnapped the victim-girl, whereafter he committed zina-bil-jabr upon her and then killed her---Witnesses of last seen evidence deposed before the police that they had last seen the victim in the company of the accused---Trial Court awarded death sentence to accused, which was reduced to life imprisonment by the Federal Shariat Court---Validity---Both witnesses of last seen evidence were related to the complainant and were frequent visitors to his residence, but they kept silent for more than a week---One of the said witnesses admitted that he was not on good terms with the accused---To cover up the delay in giving last seen evidence, witnesses introduced a story of having gone to another city for about seven days, but no fare ticket of transport/travel or any other document about stay in a hotel or at any other place for such a long period was produced---Evidentiary worth of such last seen evidence had diminished almost to zero---Delayed statements of said witnesses to police had rendered them false witnesses---Question as to at what time the victim was ravished and done to death had not been established through reliable evidence---Distance of the place where the victim was last seen with the accused and wherefrom her dead body was recovered had remained unexplained, thus, the elements of close proximity of time and place being fundamental and mandatory requirements for accepting last seen evidence were absolutely missing---Witnesses of last seen evidence could also be held to be chance witnesses as it was not their case that it was their routine of passing through the same street regularly---Shariat Appellate Bench of the Supreme Court acquitted accused of all charges levelled against him and set aside his conviction and sentences---Appeal was disposed of accordingly.

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

----Ss. 302(b) & 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Constitution of Pakistan, Art.203F---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, zina-bil-jabr liable to tazir---Shariat appeal---Extra judicial confession---Accused was alleged to have kidnapped the victim-girl, whereafter he committed zina-bil-jabr upon her and then killed her---Accused allegedly confessed before a witness that he had committed the crime and requested said witness for effecting compromise with the father of the victim---Trial Court awarded death sentence to accused, which was reduced to life imprisonment by the Federal Shariat Court---Validity---Witness before whom the alleged extra judicial confession was made in no uncertain words stated that he was not on good terms with the accused, therefore, if at all the accused was involved in the crime and was in need of help then, the said witness was not the appropriate person for such purpose---Said witness instead of taking a single step or making any effort towards the settlement/compromise or to help the accused, readily became a witness against him---Such conduct and attitude of said witness by itself was sufficient for discarding his testimony---Shariat Appellate Bench of the Supreme Court acquitted accused of all charges levelled against him and set aside his conviction and sentences---Appeal was disposed of accordingly.

(c) Criminal trial---

----Extra judicial confession---Offence carrying capital punishment---Conviction---Scope---Extra judicial confession was not sufficient for recording conviction on a capital charge unless it was strongly corroborated by tangible evidence coming from unimpeachable source.

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

----Ss. 302(b) & 364-A--- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Constitution of Pakistan, Art.203F---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, zina-bil-jabr liable to tazir---Shariat appeal---Incriminating article, recovery of---No plausible reason for accused to keep incriminating article---Effect---Accused was alleged to have kidnapped the victim-girl, whereafter he committed zina-bil-jabr upon her and then killed her---Accused allegedly led the police to his house, where blood stained sheet was recovered on his pointation---Trial Court awarded death sentence to accused, which was reduced to life imprisonment by the Federal Shariat Court---Validity---Recovery of blood stained sheet from the house of accused was unbelievable because according to the prosecution the tragedy commenced and was consummated within the compound of an uninhabited house and even the last seen evidence did not suggest that the accused was carrying the said sheet when he was allegedly seen in the company of the deceased---No reason existed for accused to keep the sheet in his house for days moreso, when the blood thereon could be easily washed away---Sheet in question appeared to be a planted and fabricated piece of evidence and deserved to be rejected---Shariat Appellate Bench of the Supreme Court acquitted accused of all charges levelled against him and set aside his conviction and sentences---Appeal was disposed of accordingly.

(e) Criminal trial---

----Circumstantial evidence---Conviction---Case resting entirely upon circumstantial evidence---Caution to be exercised by court---When any case rested entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where one end of its noose fitted in the neck of the accused and the other end touched the dead body---Any link missing from the chain would disconnect and break the whole chain and in that event conviction could not be safely recorded and that too on a capital charge---Courts had to exercise more and more caution before accepting and resting their opinion of being guilty on circumstantial evidence collected apparently in a dishonest, dubious and rough manner.

Muhammad Ilyas Siddiqi, Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.26 of 2009).

Arshad Ali Ch., Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.7 of 2011).

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

Date of hearing: 29th October, 2014.

2015 S C M R 165

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

MUHAMMAD ASIF CHATHA and others---Appellants

Versus

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

Civil Appeals Nos.222 to 238 of 2012, decided on 25th November, 2014.

(On appeal against the judgment dated 25-11-2011 passed by Punjab Service Tribunal, Lahore in Appeals Nos.2933 to 2936, 2939 to 2943, 2951 of 2005, 4416 of 2006, 500 to 505 and 591 of 2006)

(a) Constitution of Pakistan---

----Art. 212(3)---Civil service---Appeal against judgment of Service Tribunal filed before the Supreme Court---Question of fact---Such question could not be gone into in appeal proceedings before the Supreme Court under Art. 212(3) of the Constitution.

(b) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 8-B---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 13--- Appointment on acting charge/officiating basis---Promotion---Scope---Appointment on acting charge/officiating basis did not confer any vested right for regular promotion.

Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

(c) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 13---Promotion to higher post on officiating basis---Civil servants seeking regularization of such promotion--- Limitation--- Delay of 6 years in raising issue of regularization of promotion---Effect---Three seniority lists were issued, during the period when civil servants remained promoted on officiating basis, showing them not only junior to other civil servants but also on officiating basis but they kept mum and never challenged the said lists---Civil servants after their appointment on officiating basis in the years 1995-1998 could not have agitated the matter in the year 2001---Civil servants seemingly had accepted their appointment on officiating basis---Appeal filed by civil servants seeking regularization of their promotion was dismissed accordingly.

Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 distinguished.

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

----S. 4---Departmental representation, filing of---Limitation period---Appeal filed before Service Tribunal--- Limitation period and competency---When a departmental representation was barred by time, then without disclosing any sufficient reason for delay, no subsequent order of disposal of such incompetent representation could create fresh cause of action and that the appeal filed before the Service Tribunal would be incompetent.

Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and others 1998 SCMR 882 and NED University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453 ref.

Saif ul Malook, Advocate Supreme Court for Appellants (in all cases).

Respondents in person.

Mudassir Khalid Abbasi, A.A.-G. for Government of Punjab.

Date of hearing: 13th November, 2014.

2015 S C M R 172

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU---Appellant

Versus

FEHMIDA BEGUM and others---Respondents

Civil Appeal No. 1038 of 2000, decided on 25th November, 2014.

(On appeal from judgment of Lahore High Court, Lahore, dated 30-6-2000, passed in Writ Petition No. 914 of 2000)

National Accountability Ordinance (XVIII of 1999)---

----S. 5(o)---"Person"---Definition---Person standing as guarantor for a loan obtained by the company---Company defaulting in payment of loan---Such person/guarantor liable for prosecution before Accountability Court---Scope---Any person may be a director or employee of the company while at the same time be a guarantor as well---Employee/director in question was the surety or guarantor of the loan facilities etc., availed by the company---According to the terms of the guarantee, employee/director's responsibility under the guarantee was that of a principal debtor and he was liable under the guarantee until all moneys due from the company had been paid, therefore, once the company defaulted in its liability to repay the loan amount, it was the obligation of the said employee/ director to repay the loan amount---High Court was not right in holding that said employee/director, despite being a guarantor, was not liable for prosecution before the Accountability Court---Judgment of High Court was set aside in circumstances---Appeal was allowed accordingly.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Fauzi Zaffar, Additional DPG NAB for Appellant.

M. A. Siddiqui, Advocate Supreme Court for Respondents Nos.1 and 2.

Ex parte Respondents Nos.3 to 8.

Date of hearing: 10th November, 2014.

2015 S C M R 222

[Supreme Court of Pakistan]

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

DAYAM KHAN and others---Appellants

Versus

MUSLIM KHAN---Respondent

Civil Appeal No.494 of 2012, decided on 14th March, 2014.

(On appeal against the judgment dated 3-10-2011 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in C.R. No.161 of 2011)

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

----Ss. 13(2) & (3)---Suit for possession through pre-emption---Co-vendees---Talb-i-Muwathibat---Talb-i-Ishhad, notice of---Sending of notice to all co-vendees---Principles---Notice of Talb-i-Ishhad had to be sent to all co-vendees immediately upon gaining knowledge of their existence--- Suit land, in the present case, was purchased by three co-vendees---Pre-emptor was initially unaware of the other two co-vendees, and consequently made Talb-i-Muwathibat and sent notice of Talb-i-Ishhad to only one of the co-vendees---Said co-vendee filed written statement wherein he categorically stated that purchase of suit land was jointly made with the other two vendees---Despite presence of such written statement on record, no immediate Talb-i-Muwathibat or notice of Talb-i-Ishhad was sent by pre-emptor to the other two co-vendees---Pre-emptor was required to make Talb-i-Muwathibat regarding other two co-vendees immediately when the written statement was filed or at least when the case was fixed for the next hearing thereafter---Contention of pre-emptor that he made Talb-i-Muwathibat after obtaining certified copies of written statement did not have force as Talb-i-Muwathibat had not been duly made upon gaining knowledge of the co-vendees, when written statement was filed---Requirement of Talb-i-Muwathibat with respect to other two co-vendees was not fulfilled in accordance with law---Moreover pre-emptor had not examined the postman to prove that notices of Talb-i-Ishhad had been duly served upon the other two co-vendees---Appeal was allowed accordingly with consequential dismissal of suit for pre-emption.

Malik Nazir Ahmad through his legal heirs v. Muhammad Yar 2004 SCMR 1377 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 ref.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for possession through pre-emption---Talb-i-Ishhad, notice of---Proof---Two attesting witnesses---Only one witness of Talb-i-Ishhad was produced in evidence---Effect---Out of the three witnesses of Talb-i-Ishhad only one was examined, while the other two were allegedly out of the country---Record did not show that pre-emptor had approached the Trial Court with an application to the effect that due to non-availability of the said two witnesses, scribe of notice might be allowed to be produced in evidence---Pre-emptor had not urged any sufficient cause or furnished any plausible explanation for his failure to produce and examine the said two attesting witnesses, which amounted to violation of the mandatory provisions of proving Talb-i-Ishhad---Appeal was allowed accordingly with consequential dismissal of suit for pre-emption.

Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113 and Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 ref.

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

----S. 13(3)--- Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for possession through pre-emption---Talb-i-Ishhad, notice of---Proof---Scribe of notice, evidence of---Scribe of notice of Talb-i-Ishhad was not to be considered as an attesting witness of the notice---Examination of scribe by the pre-emptor, in no way, could be construed to be in conformity / fulfillment of the mandatory requirement of two truthful witnesses under S. 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113 ref.

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

----Ss. 13(2) & (3)---Suit for possession through pre-emption---Co-vendees---Talb-i-Muwathibat---Talb-i-Ishhad, notice of---Pre-emptor making Talb-i-Muwathibat and issuing notice of Talb-i-Ishhad to only one of the co-vendees---Said Talbs could not be taken into consideration in respect of the other co-vendees.

Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Athar Minaullah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 14th March, 2014.

2015 S C M R 233

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Gulzar Ahmed, JJ

CIVIL APPEALS NOS. 727-730, 777 AND 788 OF 2014

(On appeal from the judgments/Orders of the Lahore High Court, Multan Bench dated 28-2-2014 passed in Writ Petitions Nos.11666 of 2013, of the LHC Rawalpindi Bench dated 24-3-2014 passed in W.P. 204 of 2014, of the LHC Multan Bench dated 28-2-2014 in W.P. 1078 of 2014 and in W.P. 11960 of 2013; of the LHC Lahore dated 12-3-2014 passed in W.P. No.30569 of 2013 and of the LHC Bahawalpur Bench dated 19-5-2014 passed in W.P. 3666 of 2014, respectively)

AND

CIVIL APPEAL NO. 273-L OF 2014

(On appeal from the judgment/order of the Lahore High Court Lahore dated 30-6-2014 passed in W.P. No.19172 of 2014)

AND

CIVIL PETITION NO.1244 OF 2014

(On appeal from the judgment/order of the Peshawar High Court Peshawar dated 13-5-2014 passed in W.P. 1086-P of 2014)

AND

CIVIL PETITIONS NOS.1619-L AND 909 OF 2014

(On appeal from the judgments/orders Lahore High Court Lahore dated 18-8-2014 passed in W.P. No. 22081 of 2014 and of the LHC Rawalpindi Bench dated 24-3-2014 passed in W.P. No. 2753 of 2013 respectively)

MUHAMMAD RAZA HAYAT HIRAJ and others---Appellants/Petitioners

Versus

The ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Appeals Nos.727-730, 777, 788, Civil Appeal No.273-L, Civil Petitions Nos.1244, 1619-L and 909 of 2014, decided on 17th December, 2014.

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

----S. 67(1A)---Election Tribunal---Election petition, decision of---Expeditious disposal---Courts were always mindful of the need for election process to be completed expeditiously and without hindrance, including the trial of election petitions arising out of the election.

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

----Ss. 52 & 67---Constitution of Pakistan, Arts. 199 & 225---Election Tribunal---Interim / interlocutory order---Constitutional petition filed before the High Court against an interim / interlocutory order of the Election Tribunal passed during pendency of election petition---Scope---Interlocutory order passed by the Election Tribunal could not be questioned in constitutional jurisdiction of the High Court until the same was patently illegal and the same for some reason could not even be challenged in appeal under S. 67 of the Representation of the People Act, 1976, filed against final disposal of the election petition---For High Court to intervene in its Constitutional jurisdiction in an interlocutory order of the Election Tribunal, the order must not only be patently illegal but if not struck down would leave the aggrieved party without remedy---Where the outcome of an election petition went against a party which was also aggrieved of an interlocutory order passed during the proceedings, besides impugning the main judgment, he was entitled to assail the very legality of the (interim) order, apart from the consequences that flowed from it---Interlocutory orders of the Election Tribunal were not liable to be set aside by the High Court in its constitutional jurisdiction, if the aggrieved party had a remedy available to it by way of appeal under S. 67 of the Representation of the People Act, 1976, after disposal of the election petition.

Ali Gohar Khan Mahar v. Election Commission of Pakistan 2014 CLC 776 and Dur Muhammad Khan Nasar v. Muhammad Shafiq Tareen PLD 2014 Bal. 152 affirmed.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge and others 1994 SCMR 1299; Shella B. Charles v. Election Tribunal and others 1997 SCMR 941; Election Commission of India v. Shivaji AIR 1988 SC 61; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779 and Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 ref.

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

----S. 67---Election Tribunal---Interim / interlocutory order, appeal against---Maintainability---Appeal under S. 67 of the Representation of the People Act, 1976, against an interlocutory order of the Election Tribunal was not maintainable but the same was liable to be challenged after conclusion of the trial if the ultimate decision went against the party aggrieved of the order---Aggrieved party was thus not left without remedy.

(d) Constitution of Pakistan---

----Art. 225---Election matter---Exclusive jurisdiction of the Election Tribunal--- Exclusion of other courts--- Scope--- Exclusion of jurisdiction of other Courts to try election matters extended to the entire length of the proceedings in an election petition before the Tribunal.

Mian Abbas Ahmed, Advocate Supreme Court for Appellants/Petitioners (in C.As. 727, 729 of 2014).

Sardar Abdul Raziq Khan, Advocate Supreme Court for Appellants/Petitioners (in C.A. 728 and C.P. 909 of 2014).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants/Petitioners (in C.A. 730 of 2014).

Asad Javed, Advocate Supreme Court for Appellants/Petitioners (in C.A. 777 of 2014).

Farooq H. Naek, Senior Advocate Supreme Court for Appellants/Petitioners (in C.A. 788 of 2014).

Ch. Nazir Ahmed Kamboh, Advocate Supreme Court for Appellants/Petitioners (in C.A. 273-L of 2014).

Kamran Murtaza, Advocate Supreme Court for Appellants/Petitioners (in C.P. 1244 of 2014).

Ch. Aamir Rehman, Advocate Supreme Court for Appellants/Petitioners (in C.P. 1619-L of 2014).

Sardar Muhammad Aslam, Advocate Supreme Court for Respondent No.3 (in C.As. 727, 729 of 2014).

M. Ilyas Sheikh, Senior Advocate Supreme Court for Respondent No.2 (in C.A. 728 and C.P. 909 of 2014).

Ahmed Awais, Advocate Supreme Court for Respondent No.1 (in C.As. 777, 273-L and C.P. 1619 of 2014).

Malik Mumtaz Jatt, Advocate Supreme Court for Respondent No.13 (in C.A. 730 of 2014).

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Respondent No.1 (in C.P. 1244 of 2014).

Kh. Ahmad Hussain, DAG on Court's Notice.

Date of hearing: 25th September, 2014.

2015 S C M R 253

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mian Saqib Nisar and Amir Hani Muslim, JJ

NATIONAL ASSEMBLY SECRETARIAT through Secretary---Appellant

Versus

MANZOOR AHMED and others---Respondents

Civil Appeal No. 1355, C.M.A. No. 4783 of 2014 in C.A. 1355 of 2014, decided on 17th November, 2014.

(On appeal against the judgment dated 21-7-2014, passed by the Islamabad High Court Islamabad, in Writ Petition No.3547 of 2013)

(a) Constitution of Pakistan---

----Arts. 199 & 212(2)---Civil Service---Statutory rules relating to terms and conditions of service, violation of---Bar of jurisdiction of High Court---Civil servant could not have approached the High Court under Art. 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his service in view of the bar created under Art. 212(2) of the Constitution---High Court, therefore, was not competent to adjudicate the issue raised in the constitutional petition---High Court had fallen in error while proceeding on the erroneous assumption that civil servant had raised the issue of violation of the statutory rules, therefore, it was competent to decide the issues---High Court had adopted an incorrect approach by entertaining a constitutional petition of a civil servant on the ground of the statutory violation---Such grievances of a civil servant fell within the domain of the Federal Service Tribunal as mandated by the Constitution.

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

----S. 10---Transfer, temporary nature of---No right of transferee to get absorbed in borrowing department---Transfer under S. 10 of the Civil Servants Act, 1973 was itself of a temporary nature and neither confered a right on the transferee to get himself absorbed nor the borrowing department, in law, could be compelled to retain the services of such an employee on permanent basis by absorption---No concept of absorption of a civil servant in another department existed either in the Civil Servant Act, 1973 or the Rules framed thereunder---Section 10 of the Civil Servants Act, 1973 empowered the competent authority to order an employee from one post to another, which was never permanent in nature.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Appellant.

G.M. Chaudhry, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 - 4.

Date of hearing: 17th November, 2014.

2015 S C M R 258

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD ARSHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.411 of 2007, decided on 18th November, 2014.

(On appeal against the judgment dated 14-12-2006 passed by Lahore High Court, Lahore in Criminal Appeal No.781 of 2000 and Murder Reference No.346 of 2000)

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Re-appraisal of evidence---Pre-planned murder---Strained relations between accused and complainant party---Plea of alibi not proved---Accused was alleged to have killed the deceased and also caused injuries to witnesses---Accused was sentenced to death, which sentence was maintained by the High Court---Validity---Accused was closely related to the complainant party and both parties were known to each other, thus there was no question of mistaken identity or false implication---Injuries on the person of witnesses were serious---Injured witnesses specifically stated that accused had fired upon them---Although statements of injured witnesses were recorded after a delay of 10 days but after the incident they were in an uncertain and unsafe condition and were not able to make statements---Doctor treating the injured witnesses had also refused permission to police to immediately record their statements---High Court had correctly found that accused had strained relations with the complainant party, which was the motive for the occurrence---Plea of alibi raised by accused to the effect that he was in another city at the time of occurrence was not backed by evidence on record---Accused also led to the recovery of weapon of offence---Accused was solely responsible for the occurrence and had committed a pre-planned murder---Prosecution had succeeded in proving its case beyond any shadow of doubt---Appeal filed by accused was dismissed accordingly.

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

----S. 324---Attempt to commit qatl-i-amd---Injured witness, statement of---Discrepancy between medical evidence and ocular account given by witness regarding nature of weapon used by accused---Effect---Injured witnesses were not expected to mention exact kind and make of weapon in a situation of sensation and panic---Appeal was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Quantum of punishment---Death sentence, award of---Convict spending 17 years in death cell---Plea of convict that he was in death cell for 17 years, which period of custody exceeded a full term of imprisonment for life, therefore he deserved leniency in quantum of his punishment---Validity---Long detention alone was not a valid ground for reducing the sentence of accused---In cases of convicts on death row for a lengthy period of time, the court while reducing the sentence was duty bound to advert to all other material pieces of evidence.

Hassan and others v. The State PLD 2013 SC 793 and Dilawar Hussain v. The State 2013 SCMR 1582 distinguished.

(d) Constitution of Pakistan---

----Arts. 13 & 185---Double jeopardy---Death sentence, award of---Convict awarded death sentence undergoing a period of custody equal to more than a full term imprisonment for life during pendency of his legal remedy against his death sentence---Question was as to whether maintaining of death sentence by the Supreme Court would amount to double punishment---Held, when the conviction or acquittal of a person was under challenge in appeal or revision, the proceedings were neither fresh prosecution nor there was any question of second conviction or double jeopardy.

Muhammad Aziz Sindhu, Advocate Supreme Court for Appellant.

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

Date of hearing: 18th November, 2014.

2015 S C M R 269

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Appellants

Versus

MUHAMMAD JAVED and others---Respondents

Civil Appeals Nos.795 to 805 of 2014, decided on 24th November, 2014.

(On appeal from the judgment dated 26-2-2014 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos.1175 to 1184 of 2012)

(a) Khyber Pakhtunkhwa Irrigation and Public Health Engineering Department (Recruitment and Appointment) Rules, 1979---

----Appendex---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3--- Promotion quota, reduction in---Provincial Government changing promotion criteria by prescribing higher education qualification--- Service Tribunal, jurisdiction of---Sub-Engineers (BPS-11) (respondents) were appointed in Irrigation Department on the basis of having a diploma in Associate Engineering and enjoyed 20% reserved quota for promotion to the post of Assistant Engineer (BPS-17) as provided in the Khyber Pakhtunkhwa Irrigation and Public Health Engineering Department (Recruitment and Appointment) Rules, 1979---Said Rules were amended and stipulated promotion quota of appellants was reduced to 15% and a new category (for promotion) was created for those Sub-Engineers who possessed a degree in B.Tech. (Hons.) and who had passed Grade A and Grade B examinations with a minimum service of five years---Appellants contended that carving out of such new 'category' of degree holders had reduced the promotion prospects of diploma holders---Service Tribunal directed the Provincial Government to reconsider the amendments made to the Rules and in the meantime put on hold promotions under the amended Rules---Legality---Amendment made to the Rules in question was not with a view to accommodate specific individuals or for any other ulterior motive---Service Tribunal appeared to have been impressed by the fact that there were one hundred and thirty diploma holders whereas there were only thirteen graduates having B.Tech (Hons.) degrees, therefore, in the opinion of the Tribunal it was necessary to preserve the quota of the diploma holders---Concern of the Tribunal effectively meant that if there were many less qualified persons they should have greater prospects for advancement and those who had higher qualifications or who had improved their qualifications should not have an advantage---Such anxiety and concern of the Tribunal was misplaced---Amendment made to the Rules in question was a policy matter and the Government was empowered to reduce the promotion quota of Sub-Engineers holding diploma, and also to create a separate promotion quota for those holding B.Tech (Hons.) degree; the same was also not justiceable---Service Tribunal had clearly exceeded its jurisdiction in issuing directions to Provincial Government for reconsideration of the impugned amendment and by putting on hold the promotions under the amended Rules---Appeal was allowed accordingly and judgment of Service Tribunal was set aside.

Dr. Alyas Qadeer Tahir v. Secretary M/o Education 2014 SCMR 997 ref.

(b) Civil service---

----Promotion, criteria for---Educational qualification---Government changing promotion criteria by prescribing higher educational qualification---Effect---When talent, skill and capability was rewarded, it provided opportunity to ambitious employees, and if those amongst them who were better qualified received a differential focus it benefited the department and the people of the country, as all civil servants were there to serve the people---Similarly, if the bar to aspire to higher positions (i.e. promotion) was raised, it encouraged and motivated employees to take ownership of their careers and personal development---Moreover, when higher educational qualification and talent was appreciated it made for a more transparent system of advancement and may also help to retain talented individuals in an organization.

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

----S. 3---Constitution of Pakistan, Art. 212(1)(a)---Service Tribunal, jurisdiction of--- Civil service--- Promotion criteria--- Educational qualification---Government changing promotion criteria by prescribing higher educational qualification---Policy matter---Where the Government, as a policy matter, wanted to restrict promotion to those having degrees, or create another category of such persons, it was not ultra vires of any law nor was it unreasonable---Such matter fell within the exclusive domain of the Government, which, in the absence of demonstrable mala fides could, not be assailed.

Executive District Officer (Revenue) v. Ijaz Hussain and another 2012 PLC (C.S.) 917 and Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701 ref.

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

----S. 3---Constitution of Pakistan, Art. 212(1)(a)---Civil service---Promotion, right of---Promotion criteria---Justiciability---Neither promotion nor the criteria set out to aspire for promotion could be categorized as a 'right' that could be justiceable.

Zafar Iqbal v. Director, Secondary Education 2006 SCMR 1427 ref.

Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Appellants (in Civil Appeal No.795 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Respondents Nos. 2 - 4 (in Civil Appeal No.795 of 2014).

Nemo for Respondents Nos.1, 5 - 8 (in Civil Appeal No.795 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Appellants (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Mian Arshad Jan, Additional A.-G., Kyber Pakhtunkhwa for Respondents Nos.1 - 4 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Nemo for Respondents Nos.6 to 9 (in Civil Appeals Nos.796, 797, 799 - 801, 804 and 805 of 2014).

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Appellants (in Civil Appeals Nos.798, 802 and 803 of 2014).

Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Respondents Nos.1 to 4 (in Civil Appeals Nos.798, 802 and 803 of 2014).

Nemo for Respondents Nos.5 to 9 (in Civil Appeals Nos.798, 802 and 803 of 2014).

Date of hearing: 11th November, 2014.

2015 S C M R 279

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

GUL NOOR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.600 of 2009, decided on 4th December, 2014.

(On appeal against the judgment dated 2-6-2009 passed by the Lahore High Court, Lahore, in Criminal Appeal No.128/2007/Bwp)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Public witness not supporting prosecution case---Separate samples from each packet not taken---Effect---Narcotic weighing 13450 grams was allegedly recovered from a vehicle, which was driven by the accused---Prosecution witnesses consisted of police officials and a public witness---Public witness stated that he was working as a Razakar with the police on patrol duty, and that when the vehicle in question was stopped and searched nothing was recovered on account of which he was declared as a hostile witness---Prosecution thereafter proceeded with its case by adducing evidence of other prosecution witnesses who were all police officials---Public witness associated with recovery of narcotic had not supported the prosecution case, which created a dent in the veracity of the recovery being effected, and thus serious doubts had arisen, benefit of which had to go to the accused---Separate samples had not been taken from each and every packet for chemical analysis rather only one sample weighing 10 grams had been separated and sent for chemical analysis, and it had also not been specified as to from which packet the sample was separated---Such circumstances created serious doubt in the prosecution case, benefit of which had to go the accused---Appeal was allowed accordingly and conviction and sentence of accused under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside.

Aftab Ahmed v. The State Criminal Appeal No. 50(S)/1988 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

(b) Criminal trial---

----Police witnesses, evidence of---Public witness not supporting the prosecution case---Effect---When a public witness had not supported the prosecution case then it may be difficult to rely upon evidence of police officials alone for convicting and sentencing an accused.

Aftab Ahmed v. The State Criminal Appeal No. 50(S)/1988 ref.

Ms. Aisha Tasneem, Advocate Supreme Court for Appellant.

Mazhar Sher Awan, APG for the State.

Date of hearing: 4th December, 2014.

2015 S C M R 284

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

Qazi ABDUL ALI and others---Appellants

Versus

Khawaja AFTAB AHMAD---Respondent

Civil Appeal No. 740 of 2009, decided on 11th December, 2014.

(On appeal against the judgment dated 26-3-2009 passed by Lahore High Court, Rawalpindi in Regular First Appeal No.201 of 2001)

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

----O. XXXVII---Qanun-e-Shahadat (10 of 1984), Art. 59---Summary suit for recovery of money---Pronote, authenticity of---Proof---Evidence of witnesses of pronote---Report of hand writing expert negating authenticity of pronote---Importance to be given to (direct) evidence of witnesses over report of handwriting expert---Witnesses in whose presence the pronote was signed were subjected to lengthy cross-examination but they remained consistent on the point that such pronote was executed---Report of handwriting expert on its own could not be made basis to discard the (authenticity) of the pronote in the presence of such strong and direct evidence---Where direct evidence to prove a fact was available then much importance had to be given to it---Suit filed on basis of pronote in question was competent---Appeal was allowed accordingly.

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

----Art. 59---Proof of a fact---Direct evidence---Expert evidence---Where direct evidence to prove a fact was available then much importance had to be given to it, and expert evidence in such circumstances carried no legal value.

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

----O. XXXVII---Stamp Act (II of 1899), S. 12---Summary suit for recovery of money---Pronote---Stamps on pronote not properly cancelled---Pronote containing 20 adhesive stamps out of which only 2 not cancelled/crossed---Question was as to whether such pronote was admissible in evidence to file a suit under O. XXXVII, C.P.C.---Stamp Act, 1899, was a revenue collecting law and the object of cancelling of stamps was only that the same might not be used again on any other document---Provisions of the Stamp Act, 1899 were not intended to deny vested rights of the parties and to punish the beneficiary of the pronote---Pronote would be deemed to be unstamped only to the extent of the stamps which had not been cancelled---As only two stamps were not cancelled in the present case, the pronote was insufficiently stamped only to the extent of said two stamps---Such pronote could be admitted in evidence on payment of penalty provided under the law and it could not be held that suit filed under O. XXXVII, C.P.C., on basis of such pronote was incompetent---Appeal was allowed accordingly.

Munir Ahmed Kahloon v. Rana Muhammad Yousaf PLD 2003 Lah. 173 ref.

(d) Stamp Act (II of 1899)---

----Ss. 12 & 36---Civil Procedure Code (V of 1908), O. XXXVII---Pronote---Summary suit for recovery of money---Stamps on pronote not properly cancelled--- Defendant not raising any objection in his written statement regarding non-cancellation of some of the stamps on pronote---Effect---Such pronote would be admissible in evidence and suit filed on basis of the same would be competent---According to S. 36 of Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of the proceedings on the ground for not being duly stamped except under S. 61 of the said Act.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516; Union Insurance Company of Pakistan (Pvt.) Ltd. v. Muhammad Siddique PLD 1978 SC 279; Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Munir Ahmed Kahloon v. Rana Muhammad Yousaf PLD 2003 Lah. 173; Muhammad Hanif v. Kissan Dost (Pvt.) Ltd. 2003 CLD 224 and Manzoor Ahmed v. Qamar ul Zaman 2011 CLC 1756 ref.

Malik Itaat Hussain Awan, Advocate Supreme Court for Appellants.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 21st November, 2014.

2015 S C M R 291

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

AKHTAR IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.381 of 2012, decided on 28th November, 2014.

(Against the judgment dated 23-5-2012 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.233 of 2010)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Material witnesses not produced before Trial Court---Doubt as to whether samples were taken from each and every packet of narcotic---Probability of false implication---Effect---Recovery officer and one of the recovery witnesses expired before making their statements before the Trial Court---Only material witness produced by the prosecution before the Trial Court was a witness who had attested memorandum of recovery---Head of raiding party was not produced before the Trial Court and no explanation for such failure was offered---Parcels of recovered narcotic were sealed with the monogram (name initials) of an official who was not even posted at the relevant police station at the time of alleged recovery from accused---No explanation was offered as to why the said parcels did not contain the monogram of the recovery officer---Prosecution claimed that a sample had been taken from each and every slab of recovered substance but note recorded by Trial Court in such regard tended to create an impression that such claim might not be correct---Accused in his statement under S. 342, Cr.P.C. claimed that he had been falsely implicated in the present case because he was instrumental in the arrest of a drug baron, who was later on convicted and sentenced to death---Probability existed that accused was falsely implicated in the present case---Appeal was allowed and accused was acquitted of the charge by extending him benefit of doubt.

Noor Alam Khan, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, Special Prosecutor, Anti-Narcotics Force for the State.

Date of hearing: 28th November, 2014.

2015 S C M R 294

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD IKHLAQ MEMON---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Respondent

Civil Appeal No.2627 of 2006, decided on 9th December, 2014.

(On appeal from the judgment dated 16-2-2004 in I.C.A. No.21 of 2004 passed by the Lahore High Court, Lahore)

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----Preamble---Auction of plots---Payment of auction money by successful bidder---Non-availability of plots for allotment---Effect---Return of auction money---Appellant was successful bidder in respect of two plots in Orchard Farms Scheme---Appellant deposited 25% of the total amount as auction money and was willing to pay the balance amount upon completion of acceptance letters---Capital Development Authority (CDA) did not hand over the possession of plots to the appellant as third parties were occupying the same and had instituted litigation wherein the court had passed stay orders, and there were no other plots available for allotment---Appellant filed constitutional petition before Single Judge of the High Court, which was disposed of with the direction to Capital Development Authority to refund the auction money to the appellant---Intra-Court appeal filed against judgment of Single Judge of High Court was also dismissed---Validity---Appellant in his constitutional petition did not attribute any mala fides to the Capital Development Authority and acknowledged that plots were in possession of third parties, who had obtained stay orders---Capital Development Authority did not issue the requisite acceptance and allotment letters to the appellant nor did the appellant himself tender the balance price (75%) or offer to deposit the same in court---On the contrary the appellant wrote to Capital Development Authority to refund the 25% amount deposited---Under such circumstances, order of Single Judge was fair and reasonable and the appellant should not have objected when his own request for refund was granted by the court---Permitting the appellant to retain his rights in respect of the plots, having paid only 25% of the price, would give him an undue benefit/advantage at the cost of the public, as the value of the money had historically depreciated whilst the value of land had increased---Appeal was dismissed accordingly.

(b) Capital Development Authority Ordinance (XXIII of 1960)---

----Preamble--- "Public interest"--- Capital Development Authority was a statutory organization and had to act in the public interest.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Appellant.

Tanvir-ul-Islam, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 9th December, 2014.

2015 S C M R 298

[Supreme Court of Pakistan]

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

MIAN JAN---Petitioner

Versus

Mian PIR JAN and others---Respondents

Civil Peitition No.111-P of 2014, decided on 29th May, 2014.

(On appeal from the judgment of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, dated 19-11-2013 passed in C.R. No. 200 of 2011)

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

----S. 54---Registration Act (XVI of 1908), S. 17---Constitution of Pakistan, Art. 185(3)---Sale deed, authenticity of---Proof---Applicable law and practice at the time of registration of sale deed---Land situated in Swat district---Sale deed registered in the year 1965---Khasra number and area of land or its boundaries not mentioned in the sale deed---Effect---Sale deed had to be examined on the touchstone of the practice and the laws prevalent at the time the same was executed---State of Swat was merged into rest of the country in the year 1969 and prior to that no revenue record was maintained---Neither the Registration Act, 1908 nor any other similar law relating to registration of documents was in vogue during that period---However, at that time sale transaction used to be reduced into writing and registered in the office of the local Tehsildar---Lands sold during those days were not expressed in terms of khasras as there was no revenue record---Only mode of identity of the property sold was by reference to the surrounding lands---In the present case, the sale deed was duly registered on 16-9-1965, according to which the petitioner had purchased the property---Record Keeper appeared as witness and produced the relevant page from the Register of deed---According to the law prevalent at the time entry of the deed in the Register maintained for the purpose was sufficient to prove the transaction---Upon perusal of the sale deed the property sold had been duly described according to the ownership of lands surrounding it on all four sides---Petition for leave to appeal converted into appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 185---Supreme Court, jurisdiction of---Concurrent findings of facts recorded by courts below---Reversal of---Scope---Supreme Court was slow in reversing findings on facts, more so when the same had been concurrently arrived at by all the courts.

Zia-ur-Rahman, Advocate Supreme Court for Petitioner.

Zulfiqar Ali Abbasi, Advocate Supreme Court for Respondents Nos.1 and 3.

Date of hearing: 29th May, 2014.

2015 S C M R 301

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

MUHAMMAD AFSAR and others---Appellants

Versus

RAB NAWAZ (DECEASED) through L.Rs and others---Respondents

Civil Appeal No.581 of 2004, decided on 19th November, 2014.

(On appeal from judgment of Lahore High Court, Lahore, dated 21-8-2001, passed in Civil Revision No.283 of 1991)

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

----S. 28 [since omitted]---Adverse possession, claim of---Barren and un-cultivable land forming part of shamlat deh---Presumption---Strong presumption of possession in favour of owner of such land existed, which could only be rebutted by some strong piece of evidence---Even if a claimant was in possession of such land, then to establish claim of adverse possession, he had to meet the criteria of open and hostile possession of the suit land against its owner and to his knowledge.

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

----S. 28 [since omitted]---Plea of adverse possession---Alternate plea of tenancy rights in suit land---Such alternate plea cut the very root of the case regarding adverse possession---Moment a claimant took alternate plea of tenancy rights in suit land, his whole case of adverse possession would stand demolished.

Ghulam Qadir v. Ahmed Yar PLD 1990 SC 1049 and Ghulam Mustafa v. Muhammad Yahya 2013 SCMR 684 ref.

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

----S. 28 [since omitted]---Adverse possession, claim of---Cut-off date of 31-8-1991 laid down by the Supreme Court in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063)---Claim of adverse possession set up by a claimant had to mature in the form of a decree before the said cut-off date---Where decree of adverse possession passed by Trial Court was reversed by the appellate court before such cut-off date, it could not be said that claim on basis of adverse possession had matured to hold the field.

Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063; Durrani v. Hamidullah Khan 2007 SCMR 480 and Jan Muhammad Khan v. Custodian of Evacuee Property, Lahore PLD 2009 SC 501 ref.

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

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents.

Date of hearing: 19th November, 2014.

2015 S C M R 308

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

SHAUKAT ALI alias BILLA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 154 of 2009, decided on 26th November, 2014.

(On appeal from the judgment dated 31-1-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.2071 of 2003)

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

----S. 9(c)---Possession of narcotic---Re-appraisal of evidence---Sentence, reduction in---Death sentence converted to sentence already undergone---Narcotic found in different packets---Separate samples to be taken from each packet for examination---Accused was allegedly found in possession of 20 bags containing narcotics---Each bag contained 20 packets and each packet weighed 1 kilogram---One (1) gram narcotic was separated from each packet and after amalgamation, 10 sealed parcels of 20/20 grams narcotic were prepared as sample---Held, that if narcotic was recovered, then from each packet a separate sample of narcotic for chemical examination had to be prepared and sent for examination---However, in the present case only 10 packets had been prepared as sample after amalgamation of the recovered narcotic, hence, keeping in view the ratio of the judgment Ameer Zeb v. The State (PLD 2012 SC 380), recovery of narcotic was proved only to the extent of 10 kilograms---Accused in such circumstances could at most be convicted under S. 9(c) of Control of Narcotic Substances Act, 1997 for narcotic weighing 10 kilograms---Proviso to S. 9(c) of Control of Narcotic Substances Act, 1997 provided that if quantity of recovered narcotic exceeded 10 kilograms, the punishment shall not be less than imprisonment for life---As the quantity of narcotic recovered from accused in the present case was proved only to the extent of 10 kilograms (and not more than that), hence he could not be sentenced to undergo life imprisonment---Accused had already undergone more than 14 years in jail---Supreme Court in such circumstances converted death sentence awarded to accused to sentence already undergone by him---Appeal was disposed of accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2014.

2015 S C M R 311

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Mushir Alam and Qazi Faez Isa, JJ

KHAN AFSAR---Appellant

Versus

AFSAR KHAN and others---Respondents

Civil Appeal No.351 of 2011, decided on 20th October, 2014.

(On appeal from the judgment dated 11-2-2011 in Civil Revision No.133 of 2009 passed by the Peshawar High Court, Abbottabad Bench)

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

----S. 13(3)---West Pakistan General Clauses Act (VI of 1956), S. 26---Suit for possession through pre-emption---Notice of Talb-i-Ishhad, sending of---Principles---"Registered cover acknowledgement due"---Meaning---Vendee denying receipt of notice of Talb-i-Ishhad---Pre-emptor claiming that he had sent the notice of Talb-i-Ishhad---General law of "service by post" provided under S. 26 of West Pakistan General Clauses Act, 1956 was not applicable in respect of pre-emption---Fact that notice of Talb-i-Ishhad was merely sent by pre-emptor would not suffice---Vendee must be apprised of the intention of the pre-emptor---Notice of Talb-Ishhad should be served upon the vendee---"Acknowledgement due slip" must be signed by the vendee and not some other person---When notice of Talb-i-Ishhad was not received by the vendee but by some other person, and receipt thereof was denied by the vendee, then requirement of notice of Talb-i-Ishhad provided under S.13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 would not be fulfilled---Appeal was dismissed accordingly.

Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 and Allah Ditta v. Muhammad Anar 2013 SCMR 866 ref.

Muhammad Shoaib Shaeen, Advocate Supreme Court for Appellant.

Abdul Rauf Khan Jadoon, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

Date of hearing: 20th October, 2014.

2015 S C M R 315

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.359 of 2007, decided on 27th November, 2014.

(On appeal from the judgment dated 9-8-2006 passed by the High Court of Sindh, Bench at Sukkur in Criminal Appeal No. D-92 of 2001)

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Unnatural conduct of witnesses in not saving the deceased at the time of occurrence---Presumption---Unseen incident---Motive not established---Effect---Accused was alleged to have stabbed the deceased repeatedly with a scissors which resulted in the latter's death---Alleged motive for the occurrence was that deceased, who was a head teacher, had transferred the accused (teacher) to another school---Deceased had numerous stab wounds on his body, numbering nineteen in all---Accused was armed only with a scissors, and causing many wounds to the deceased with a scissors must have consumed reasonable amount of time---However, the three witnesses, who were all related to the deceased, remained silent spectators, and did not react or show any response when the accused was allegedly stabbing the deceased---Intervention by a close relative in such a situation was very natural but in the present case witnesses neither did anything nor attempted to chase the accused to apprehend him---Presence of witnesses at the crime spot had become highly doubtful due to their unnatural conduct, therefore no explicit reliance could be placed on their testimony---Presumption was that deceased was done to death when no one was present to rescue him---Motive for the occurrence was not established in any manner through any documentary evidence or even secondary evidence of reliable nature---Even otherwise deceased, who was a head teacher, had no authority to transfer the accused-teacher to another school---Such circumstances rendered the motive for the occurrence entirely feeble, artificial and not appealing to a prudent mind---Since the ocular account was worthy of being discarded, the recovery of scissors from accused, which otherwise was doubtful, and other pieces of evidence would not be sufficient to carry conviction on a capital charge---Appeal was allowed accordingly and accused was acquitted of the charge by extending him benefit of doubt.

Masood Ahmed and Muhammad Ashraf v. The State 1994 SCMR 6 ref.

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

----S. 302---Murder---Motive---Evidentiary value---Motive in legal parlance was ordinarily not considered as a principal or primary evidence in a murder case, however in rare cases, motive did play a very vital and decisive role for committing murder.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Khadim Hussain, DPG, Sindh for the State.

Date of hearing: 27th November, 2014.

2015 S C M R 319

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL APPEAL NO.1366 OF 2003

(On appeal against the Judgment dated 17-10-2000, passed by the Lahore High Court, Lahore in W.P. No.3305 of 1995)

AND

CIVIL APPEAL NO.732 OF 2009

(On appeal against the Judgment dated 29-1-2009, passed by the Lahore High Court, Lahore, in E.F.A. No.410 of 2005)

NATIONAL BANK OF PAKISTAN through Attorney and another---Appellants

Versus

PARADISE TRADING COMPANY and others---Respondents

Civil Appeal No.1366 of 2003 and Civil Appeal No.732 of 2009, decided on 16th December, 2014.

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

----S. 58(f)---Mortgage by deposit of title deeds---Equitable mortgage, creation of--- Certified copies of sale/title deed---Original sale deed lost---Equitable mortgage over immoveable property created with delivery of certified copies of sale deed to the bank---Respondent had secured a finance facility from the bank by creating a mortgage over her property---Respondent claimed that original sale deed of the property was lost, therefore she delivered to the bank a duly signed memorandum of deposit of sale deed, certified copies of sale deed along with a copy of an F.I.R. reporting that original sale deed had been lost---Respondent also provided the bank with an affidavit claiming that she was the absolute owner of the property by virtue of a sale deed which had been lost, and that she had not created any lien or charge on the property, and that as and when the sale deed was found, she would deposit the same with the bank---Subsequently respondent defaulted and Banking Tribunal passed decree in favour of bank---Bank initiated auction proceedings for the property, during which objections were filed by purported buyers of the property, who claimed that property in question was sold to them by the respondent; that they were in possession of the original title deeds, and that the property was not validly mortgaged in favour of the bank , as the respondent had not provided original sale deed at the time of creating mortgage---Validity---Documents provided by respondent were sufficient for the bank to have accepted the assurance of respondent that original sale deed had been lost---Probing into the original sale deed was not practically possible for the bank after respondent had deposited such documents, and it could be said that the bank had taken sufficient measures to safeguard its interest---Three essential ingredients necessary for creation of an equitable mortgage stood established i.e., there was an existing debt, there was delivery of documents of title, and there was also an intention that the documents of title were meant as security for the debt---After the bank became aware of the sale of property by respondent it informed the purported buyers of the existence of mortgage and published a public notice in newspapers, and also notified the concerned estate officer---Despite being informed of the existence of the mortgage, purported buyers proceeded to purchase the property from the respondent---Respondent admitted that selling of property to purported buyers was fraud---Purported buyers and respondent actively connived in commission of the fraud to deprive the bank of its valuable security---Purported sale of property in presence of a mortgage could not be allowed to be sustained and was accordingly declared as illegal and void---Supreme Court directed that the bank should proceed with the public auction for the property in accordance with law, and that the bank was free to initiate criminal prosecution against the respondent and other persons involved in the commission of fraud in an appropriate forum.

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

----S. 58(f)---Mortgage by deposit of title deeds---Necessary ingredients.

Requirement of law for creation of a mortgage by deposit of title/sale deed was;

(i) Existence of debt

(ii) Delivery of documents of title

(iii) Intention that the documents of title shall be security for the debt

Said three ingredients were necessarily to be found at the time when the transaction of creation of mortgage took place and in the absence of any proof to the contrary, the three ingredients in the normal course of business would have to be accepted as established.

(c) Banking Tribunals Ordinance (LVIII of 1984) [since repealed]---

----Ss. 6 & 11(3)---Immovable property mortgaged with bank---Decree passed by Banking Tribunal---Auction of immovable property by the bank---Judgment-debtor playing fraud by selling the mortgaged property to purported buyer---Purported buyer of such property would be bound by the decree passed by the Banking Tribunal.

(d) Banking Tribunals Ordinance (LVIII of 1984) [since repealed]---

----S. 11(3)---Immoveable property mortgaged with bank---Decree passed by Banking Tribunal---Auction of immovable property, procedure for---Public auction---Once bank had adopted public auction as procedure for selling mortgaged property, then no other mode or procedure was permissible for selling such property.

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Appellants (in C.A. 1366 of 2003).

Shahid Hamid, Senior Advocate Supreme Court for Appellants (in C.A. 732 of 2009).

Ex parte for Respondents Nos.1 - 3, 8 and 9 (in C.A. 1366 of 2003).

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Respondent No.2 (in C.A. 732 of 2009).

Nemo for Respondent No.4 (in C.A. 1366 of 2003).

Shahid Hamid, Senior Advocate Supreme Court for Respondents Nos.5 and 6 (in C.A. 1366 of 2003).

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Respondent No.7 (in both appeals).

Date of hearing: 24th November, 2014.

2015 S C M R 338

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

WARID TELECOM (PVT.) LIMITED and 4 others---Petitioners

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman---Respondent

Civil Petitions Nos.643, 670, 724, 729, 731 and 771 of 2013, decided on 25th November, 2014.

(On appeal from judgment dated 8-3-2013 of the Islamabad High Court, Islamabad passed in Writ Petition No.1152 of 2012 and F.A.Os. Nos.16 to 19 of 2012)

(a) Telecom Consumer Protection Regulations, 2009---

----Regln. 8(1), (2) & (4)--- Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S. 21---Penal Code (XLV of 1860), Ss. 294-A & 294-B---Constitution of Pakistan, Art. 185(3)---Prize Schemes offered by cellular mobile operators to its customers---Legality---Unfair commercial practice---Prize Schemes operating as lotteries---Pakistan Telecommunication Authority (PTA) issued a directive to all cellular mobile operators to stop all prize schemes with immediate effect because the same were being exploited by unscrupulous elements for luring customers towards fake prizes, and the same were also giving rise to misleading/fraudulent activities---Validity---Almost all the prize schemes offered by the cellular mobile operators enticed consumers into using their respective networks by sending message/s and or by telephoning the operators to enable them to enter into a lucky draw, and the winners of the draw would win different prizes---Lure of the prizes was used to induce customers to send message/s and make telephone calls at considerably higher rates, and the extra revenue, after deduction of the additional costs incurred and the cost of prizes, added to the profits of the cellular mobile operators---Sections 294-A & 294-B of the Pakistan Penal Code, 1860, restricted/prohibited lotteries and offering of prizes---Prize schemes in question appeared to be operating as lotteries in contravention of S.294-A, P.P.C. and offering of prizes was an apparent violation of S.294-B, P.P.C., thus Pakistan Telecommunication Authority would be within its rights to direct the cellular mobile operators to stop the said prize schemes---None of the prize schemes disclosed the odds of winning the advertised prizes, nor the number of prizes offered within a particular period---Prize schemes therefore omitted and/or hid the "material information" for a consumer to take and form a "transactional decision" and as such constituted a "misleading omission" in terms of Regln. 8(4) of Telecom Consumer Protection Regulations, 2009, which was defined to be an "unfair practice" and one that the cellular mobile operators could not use as per the provisions of Reglns. 8(1) & 8(2) of the said Regulations---Prize schemes in question could also be categorized as "unclear", "unintelligible" and/or "ambiguous" which were categorized as "misleading" in terms of Regln. 8(4) of the Telecom Consumer Protection Regulations, 2009, and were also prohibited by Reglns. 8(1) & 8(2)(iii) of the said Regulations---Telecom Consumer Protection Regulations, 2009, were enacted to protect consumers from unfair commercial practices and to ensure that, the interests of users of telecommunication services were duly safeguarded and protected and if the cellular mobile operators were resorting to unfair commercial practices or the interest of consumers were being undermined, then Pakistan Telecommunication Authority was within its right to issue directives to stop them---Petition for leave to appeal was dismissed accordingly.

Federation of Pakistan v. Mushtaq Ali, Advocate PLD 1992 SC 153 and PLD 1989 FSC 60 ref.

(b) Constitution of Pakistan---

----Art. 10A---Adverse action contemplated against an entity---Fundamental Rights--- Sending of notice---Opportunity of being heard---Scope and exceptions---Whenever adverse action was being contemplated against a person a notice and/or opportunity of hearing was to be given to such person---Said principle was a fundamental right under Art. 10A in the Constitution---However, both the requirements of a notice and providing an opportunity of a hearing may also be dispensed with in certain type of cases e.g. where such requirement would cause "more injustice than justice" or it was not in the "public interest".

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Karnataka Public Service Commission v. B.M. Vijaya Shankar AIR 1992 SC 952 and Union of India v. J.N. Sinha AIR 1971 SC 40 ref.

(c) Telecom Consumer Protection Regulations, 2009---

----Regln. 8(1), (2) & (4)---Constitution of Pakistan, Arts. 10A & 185(3)---Fundamental Rights---Sending of notice and opportunity of being heard---Non-applicability of---Scope---Prize Schemes offered by cellular mobile operators to its customers--- Pakistan Telecommunication Authority (PTA) issued a directive to all cellular mobile operators to stop all prize schemes with immediate effect because the same were being exploited by unscrupulous elements for luring customers towards fake prizes, and the same were also giving rise to misleading/fraudulent activities---Contention of cellular mobile operators that such directive was issued without serving of show cause notice and without providing an opportunity of being heard---Validity---Licences of cellular mobile operators did not permit them to offer prize schemes in question, hence, it could not be asserted that the impugned directive had prevented the mobile operators from fulfilling an obligation to their customers, or to comply with a term of their licence or any requirement stipulated by Pakistan Telecommunication Authority---Pakistan Telecommunication Authority (PTA) was not contemplating any action against the cellular mobile operators instead it had simply directed them not to offer prizes---Impugned directive did not stop or in any manner restrict the ability of cellular mobile operators to provide the "Licensed Services" as mentioned in their respective licences, therefore, it could not be alleged that any right, benefit or privilege of the mobile operators was being curtailed or revoked, necessitating the issuance of notices to them and further to be provided with an opportunity of a hearing---Additionally, the cellular mobile operators' licences specifically empowered Pakistan Telecommunication Authority to issue directives and it was not the case of mobile operators that the impugned directive to stop prize schemes was issued on account of malice or was in any manner tainted by mala fide---By way of prize schemes in question customers were enticed with substantial amounts of cash/prizes to unnecessarily send messages and make telephone calls, billed at considerably higher rates, thus the cellular mobile operators could not complain that they were not issued a notice or were not provided an opportunity of a hearing, as no breach of any fundamental right, any principle of natural justice or even one of fair play had been violated---Petition for leave to appeal was dismissed accordingly.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Karnataka Public Service Commission v. B.M. Vijaya Shankar AIR 1992 SC 952 ref.

Muhammad Ali Raza, Advocate Supreme Court for Petitioners (in C.Ps. 643 and 729 of 2013).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Petitioners (in C.P. 670 of 2013).

Salman Akram Raja, Advocate Supreme Court for Petitioners (in C.P. No. 724 of 2013).

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioners (in C.P. 731 of 2013).

Sajid Mehmood Sheikh, Advocate Supreme Court for Petitioners (in C.P. 771 of 2013).

Mian Shafqat Jan, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, M. Khurram Siddiqui, Director (Law), PTA, Altaf Hussain Kashif, A.D. (CPD) and Barrister Bilal Khokhar, Law Officer, PTA for Respondent (in all cases).

Date of hearing: 14th November, 2014.

2015 S C M R 353

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J.,Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

CIVIL APPEAL NO. 404 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ALI HASSAN BROHI---Appellant

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

CIVIL APPEAL NO. 405 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ALI AZHAR BALOCH---Appellant

Versus

PROVINCE OF SINDH and others---Respondents

CIVIL APPEAL NO.407 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

ABDUL GHANI JUKHIO---Appellant

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

CIVIL APPEAL NO. 409 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Syed ABID ALI SHAH---Appellant

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

CIVIL APPEAL NO. 411 OF 2011 AND C.M.A. NO.4339 OF 2013

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Dr. AFTAB AHMED MALLAH---Appellant

Versus

Dr. NASIMUL GHANI SAHITO and others---Respondents

CIVIL APPEAL NO. 412 OF 2011 AND C.M.A. NO.4340 OF 2013

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

Dr. MUHAMMAD ALI---Appellant

Versus

Dr. NASIMUL GHANI SAHITO and others---Respondents

CIVIL APPEAL NO. 413 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

AHMED HUSSAIN---Appellant

Versus

Dr. NASIMUL GHANI SAHITO and others---Respondents

CIVIL APPEAL NO. 495 OF 2011

(On appeal against the judgment dated 2-4-2011 passed by the High Court of Sindh, Karachi in C.P. D-932 of 2009)

RASOOL BUX PHULPHOTO---Appellant

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

Civil Appeals Nos. 404, 405, 407, 409, 411, 412, 413, 495 of 2011, C.M.As. Nos. 4339 and 4340 of 2013, decided on 5th January, 2015.

Sindh Civil Servants Act (XIV of 1973)---

----S. 24---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 9(1)---Absorption of officers from different departments into the Provincial Government---Legality---Absorption could neither be ordered under S. 24 of the Sindh Civil Servants Act 1973, nor under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and was also violative of the Fundamental Rights of the civil servants.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellants (in C.As. 404 and 405 of 2011).

Adnan Iqbal Ch., Advocate Supreme Court for Appellants (in C.A. 407 of 2011).

Asim Mansoor Khan, Advocate Supreme Court for Appellants (in C.A. 409 of 2011).

Hamid Khan, Senior Advocate Supreme Court for Appellants (in C.As. 411 and 412 of 2011).

Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. 413 of 2011).

Miangul Hassan Aurangzeb, Advocate Supreme Court for Appellants (in C.A. 495 of 2011).

Sarwar Khan Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary Services (S&GAD) for Government of Sindh.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents Nos.3 - 13, 15, 16, 18 - 25, 27 - 41, 43 - 49, 51 and 52 (in C.As. Nos.404, 405, 407, 409 and 411 to 413 of 2011).

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents Nos.3 - 12, 14, 15, 17 - 24, 26 - 31, 33 - 40, 42 - 48, 50 and 51 (in C.A. No.495 of 2011).

Dates of hearing: 5th, 6th, 10th June, 15th to 17th and 21st to 24th October, 2014.

2015 S C M R 365

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL APPEALS NOS.1122 AND 1123 OF 2011

(Against judgment dated 5-5-2011 of Federal Service Tribunal, Islamabad, passed in Appeal No.33(L)CS of 2008)

MUHAMMAD ZAFAR ALI and others---Appellants

Versus

ASIM GULZAR and others---Respondents

CIVIL APPEAL NO.1343 OF 2014

(Against order dated 3-10-2014 of High Court of Sindh at Karachi, passed in C.P. No. D-1085 of 2013)

Syed MUHAMMAD ABBAS RIZVI and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CRIMINAL APPEAL NO. 436 OF 2011

(Against order dated 9-8-2011 of High Court of Sindh, Circuit Court, Hyderabad, passed in C.P. No. D-198 of 2009)

ASIM GULZAR and others---Appellants

Versus

ATTAULLAH KHAN CHANDIO and others---Respondents

CIVIL APPEAL NO. 431 OF 2013

(Against order dated 18-1-2013 of High Court of Sindh at Karachi, passed in C.P. No. D-3657 of 2009)

ASIM GULZAR and others---Appellants

Versus

ATTAULLAH KHAN CHANDIO and others---Respondents

Civil Appeals Nos.1122, 1123 of 2011, Civil Appeal No. 1343 of 2014, Criminal Appeal No.436 of 2011 and Civil Appeal No.431 of 2013, decided on 15th December, 2014.

(a) Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---

----R. 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Seniority---Scope---Rule 11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, was confined to determination of seniority amongst the encadred police officers from the Provinces---Where question of seniority arose either between those coming from the same Province or between officers encadred from different Provinces the same would be determined in accordance with R. 11(2)(c) of the said Rules---Rule 11(2)(c) of the Rules was thus to be restricted only to the determination of seniority in the encadred group and could not be made applicable for determining their seniority vis-a-vis the other two groups (i.e. officers inducted into the Police Service of Pakistan through initial appointment and those appointed in the Police Service of Pakistan from the Armed Forces).

(b) Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---

----Rr. 5, 7 & 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Not an initial appointment---Inter se seniority, determination of---Scope---For the purposes of determining inter se seniority of such encadred provincial police officers, their encadrement could not be considered as initial appointment---Initial appointment was confined to those officers appointed against a cadre post through competitive examination held by the Federal Public Service Commission.

(c) Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---

----Rr. 7 & 11(2)(c)---Police officers from the Provinces encadred into the Police Service of Pakistan ("PSP")---Seniority---Question as to whether seniority of such police officers was to be reckoned from the date when the vacancies occurred in the senior cadre reserved for that particular Province or from the date of notification of their encadrement---Ante-date encadrement of the Provincial police officers in the Police Service of Pakistan---Legality---Rule 7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985 did not specifically mention retrospective appointment (ante-dated encadrement) of such officers from the date on which the vacancy arose in a Province---Use of the words "shall be appointed to the service" in said R. 7 indicated that the appointment of such police officers from the Province into the Police Service of Pakistan was to be with prospective effect and not retrospective effect---Retrospective effect could be given to such appointments only for the limited purpose of determining their own inter se seniority in accordance with R.11(2)(c) of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---Notification whereby provincial police officers were appointed to Police Service of Pakistan retrospectively was declared to be in violation of R.7 of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---Appeal was disposed of accordingly.

Khushi Muhammad and 3 others v. The General Manager (now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and others PLD 1970 SC 203 ref.

(d) Civil service---

----Appointment---Prospective nature of---Appointments were always prospective in nature notwithstanding the fact that the vacancy occurred earlier.

Khushi Muhammad and 3 others v. The General Manager (now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and others PLD 1970 SC 203 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.A. No.1122 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.A. No.1123 of 2011).

Sajid Ilyas Bhatti, DAG, M.S. Khattak, Advocate-on-Record and Shahbaz Kirmani, SO for Appellants (in C.A. 431 of 2013).

Khalid Javed Khan, Advocate Supreme Court for Appellants (in C.A. No. 1343 of 2014).

Nemo for Appellants (in C.A. No. 436 of 2011).

Hamid Khan, Senior Advocate Supreme Court for Respondents (Nos.1, 18, 22, 28, 33, 35, 37 and 49 in C.A. No. 1122 of 2011 and No.1 in C.A. 1123 of 2011 and No.10 - 13 in C.A. No.1343 of 2014).

Sajid Ilyas Bhatti, DAG for Respondents (in Nos.28, 4 in C.A. No.1122 of 2011).

Waqar Ahmed Khan, Additional AG, KPK for Respondents (in No.3 in C.As. 1122 and 1123 of 2011).

Farooq Amjad Mir, Advocate Supreme Court for Respondents (in No.101 in C.A. No. 1122 of 2011).

Tariq Mehmood Jehangiri, Advocate Supreme Court for Respondents (in No. 4 in C.A. No. 1343 of 2014).

M. Siddique Khan Baloch, Advocate-on-Record for Respondents (in No.1 in Criminal Appeal No.436 of 2011).

Sajid Ilyas Bhatti, DAG, Waqar Ahmed Khan, Additional AG, KPK, Razzaq A. Mirza, Additional AG, Punjab, Muhammad Ayaz Khan Swati, Additional AG, Balochistan and Qasim Mirjat, Additional AG, Sindh on Court's Notice.

Date of hearing: 15th December, 2014.

2015 S C M R 380

[Supreme Court of Pakistan]

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

CIVIL APPEALS NO.972 AND 1060 OF 2009

(On appeal from judgment of Lahore High Court, Lahore, dated 14-5-2009, passed in R.F.A. No. 490 of 2000) and

CIVIL PETITION NO.1523 OF 2009

(On appeal from judgment of Lahore High Court, Lahore, dated 14-5-2009, passed in Writ Petition No.119 of 2003)

UNITED BANK LIMITED and others---Appellants/Petitioners

Versus

NOOR-UN-NISA and others---Respondents

Civil Appeals Nos. 972, 1060 of 2009 and Civil Petition No.1523 of 2009, decided on 7th January, 2015.

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

----Ss. 8, 39, 42 & 54---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10---Suit for possession, cancellation of documents, declaration, injunction and mesne profit---Non evacuee status of property---Forged and fabricated "Provisional Transfer Order" (PTO) and "Permanent Transfer Deed" (PTD)---Belated claim of ownership---Respondents filed civil suit against the appellant-bank claiming ownership of disputed property on the basis of a "Provisional Transfer Order" (PTO) and "Permanent Transfer Deed" (PTD) showing disputed property having been transferred to their predecessor-in-interest from the settlement department---Appellant-Bank claimed that it was the owner of the disputed property on the strength of a sale deed, and contended that disputed property was of non-evacuee nature thus it could not have been transferred to the predecessor-in-interest of respondents---Validity---Prior to filing of suit by the respondents, the appellant-bank had initiated eviction proceedings against the predecessor-in-interest of respondents, and succeeded in getting an eviction order, which attained finality---Eviction proceedings remained sub-judice before the courts for over twelve years, and at no time during such period respondents made any mention of the "Provisional Transfer Order" (PTO) and "Permanent Transfer Deed" (PTD) in favour of their predecessor-in-interest---Civil suit claiming ownership of disputed property was filed by respondents much subsequent to the eviction order---Appellant-bank produced in court the original registered sale deed to establish their clear title over the disputed property---Committee formed to verify the alleged "Permanent Transfer Deed" (PTD) in favour of predecessor-in-interest of respondents concluded that the same was obtained through fraud in connivance with officials of the settlement department; that entries existing in the PTD register regarding disputed property were fabricated and bore forged and fabricated signatures, thus the "Permanent Transfer Deed" (PTD) in favour of predecessor-in-interest of respondents was bogus---With respect to the "Provisional Transfer Order" (PTO), the said order did not form part of any record of the settlement department, for the reason that no file of disputed property was ever opened or maintained in the settlement department for treating the property as an evacuee---Moreover, said order did not contain even the material particulars, the name of evacuee owner, the area of the property, its constructed area; its annual rental value as per DVL or any other document about the entitlement or status of respondents' predecessor-in-interest being an evacuee---"Provisional Transfer Order" (PTO) and "Permanent Transfer Deed" (PTD) were also found blank in material particulars such as the name of the evacuee owner of the property, the assessed price of the property by the settlement department as per the policy in vogue; details of its payments, if any, made by the respondents' predecessor and its mode---Even the amount of public dues and scrutiny fee was not mentioned in the copy of "Permanent Transfer Deed"---Relevant gazette notification also showed the status of disputed property as being non-evacuee property---Suit filed by respondents was dismissed---Appeal was disposed of accordingly.

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

----S. 3---Under S. 3 of the Limitation Act, 1908, it was the bounden duty of every court to take notice of the question of limitation even if not raised in defence by the contesting party.

Makhdoom Ali Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.A. 972 of 2009 and C.P. 1523 of 2009).

Muhammad Saeed Ansari, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record along with Respondent No.2 for Respondents Nos.1 to 4 (in C.A. 972 of 2009 and C.P. 1523 of 2009).

Ch. Akhtar Ali, Advocate-on-Record along with Appellant No.2 for Appellants (in C.A. 1060 of 2009).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondent No.1 (C.A. 1060 of 2009).

M. Hassan, H/Clerk (Lit), o/o DCO Lahore on behalf of Sub-Registrar Lahore.

Dates of hearing: 21st May, 5th June, 9th and 10th September, 2014.

2015 S C M R 394

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim and Ejaz Afzal Khan, JJ

CIVIL APPEAL NO. 543 OF 2008

(On appeal from judgment dated 25-3-2008 of the Lahore High Court, Lahore, passed in C.R. No.642 of 2006)

MUHAMMAD ABAIDULLAH---Appellant

Versus

IJAZ AHMED---Respondent

CIVIL REVIEW PETITION NO.125 OF 2013

(On review from judgment dated 24-4-2013 of this Court, passed in C.P. No. 554-P of 2010)

MUHAMMAD TAYYAB---Petitioner

Versus

DAWA KHAN---Respondent

Civil Appeal No.543 of 2008 and Civil Review Petition No.125 of 2013, decided on 4th December, 2014.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Attestation by two truthful witnesses---To prove Talb-i-Ishhad, two truthful attesting witnesses, independent of the person, issuing and/or sending notice, were required to be examined to prove the factum of Talb-i-Ishhad---Execution of a document could only be proved by examining two attesting witnesses of the document as provided by Art.79 of the Qanun-e-Shahadat Order, 1984---Mukhtiar Ali alias Mumtaz Ali and others v. Mumtaz Ahmed and others 2007 SCMR 221 held not in conformity with the language of S.13(3) of the Punjab Pre-emption Act, 1991.

Mukhtiar Ali alias Mumtaz Ali and others v. Mumtaz Ahmed and others 2007 SCMR 221 held not in conformity with the statute.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Attestation by two truthful witnesses---Scribe of notice not an "attesting witness"---Section 13(3) of the Punjab Pre-emption Act, 1991, specifically required that to prove a valid Talb-i-Ishhad, two truthful attesting witnesses were required to be examined, which excluded the scribe of such notice---Where scribe was examined with one attesting witness to prove Talb-i-Ishhad, the scribe could not be construed to be an "attesting witness" in terms of S.13(3) of Punjab Pre-emption Act, 1991--- Even otherwise, Art. 79 of the Qanun-e-Shahadat Order, 1984, provided that the execution of a document could only be proved by producing two attesting witnesses of the document.

Zia-ud-Din Qasuri, Advocate Supreme Court for Appellant (in Civil Appeal No. 543 of 2008).

Respondent in person (in Civil Appeal No.543 of 2008).

Mian Iqbal Hussain, Advocate Supreme Court for Petitioner (in Civil Review Petition No.125 of 2013).

Nemo for Respondent (in Civil Review Petition No.125 of 2013).

Date of hearing: 4th December, 2014.

2015 S C M R 397

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

ABDUL KARIM NAUSHERWANI and another---Appellants

Versus

The STATE through Chief Ehtesab Commissioner---Respondent

Criminal Appeals Nos.202 and 203 of 1997, decided on 4th December, 2014.

(On appeal from the judgment dated 25-8-1997 in Ehtesab Reference No.1 of 1997 passed by the High Court of Balochistan, Quetta)

Per Qazi Faez Isa, J; Ijaz Ahmed Chaudhry, J. agreeing; Dost Muhammad Khan, J. dissenting. [Majority view]

(a) Ehtesab Ordinance (XX of 1997)[since repealed]---

----Ss. 3(1)(c), (d) & 4--- Corruption and corrupt practices---Misappropriation of public money---Allowing undue favour---Accused in his capacity as Food Minister to the Provincial Government was alleged to have illegally issued orders to supply wheat to a Flour Mills on credit, Managing Director of which was the co-accused---Both the accused and co-accused were convicted for the offence of "corruption and corrupt practices" under the Ehtesab Ordinance, 1997---Accused was sentenced to two years imprisonment while co-accused was sentenced to period already undergone by him---Both accused and co-accused were also directed to pay fine of Rs. 1 million each--- Plea of accused that wheat was provided to co-accused on credit as per practice and no violation of any rule/regulation took place; that the Secretary Food was the competent authority and responsible for releasing the said wheat; that the supply of the wheat to the Flour Mills was pursuant to the Prime Minister's directive of supplying cheaper flour to people of the Province; that wheat was handed over to co-accused after obtaining an undertaking as per the prevailing practice; that accused could not read or write English and merely signed documents presented by the Secretary Food, which were in English language, without knowing what they stated---Validity---Relevant rules and manual of food accounts prevalent at that time did not authorize the competent authority of food department, to allow supply of wheat on credit to a private person such as the co-accused---Co-accused had submitted an application to the accused requesting supply of wheat on credit, on the pretext that it was the directive of the Prime Minister to supply wheat to people of the Province at cheaper rates---Accused accepted said application without ascertaining, whether he had jurisdiction to allow such facility---Correspondence between the Secretary Food and accused-Minister showed that the former repeatedly advised the accused not to provide wheat to the Flour Mills in question, but the accused was insistent that the same should be done relying on some purported orders of the Prime Minister, which actually did not exist---Secretary Food wanted the Mills in question to be pledged and the amounts to be paid back at the soonest, but the accused-Minister remained intransigent that his orders should be implemented---No guarantee or security was provided by the co-accused to the Government to ensure that he would either return the wheat or pay for it---Regarding plea of illiteracy raised by accused, High Court had rightly held that signing a document tantamount to accepting its substance, therefore, said plea had no force---With respect to co-accused, it was incumbent upon him in terms of S. 21 of the Ehtesab Ordinance, 1997 to substantiate that he had not made any wrongful gain from the wheat taken by him on credit and he had supplied flour on cheaper rates to the general public of the Province---Co-accused had no entitlement to claim the wheat on credit nor he produced any directives of Prime Minister, to justify his application before the accused, therefore, he fraudulently misappropriated the Government property with dishonest intention---Benefit was given to specific person/s in the present case---Accused and co-accused in connivance with each other adopted an illegal procedure to give pecuniary advantage and undue favour to the co-accused, without any legal justification---Although co-accused did return the amount due, but he had no intention to do the same until the reference against him was filed and heard by the High Court--- Supreme Court maintained conviction of both accused and co-accused, however, sentences awarded to them were modified to ones already undergone by them---Appeal was dismissed accordingly.

(b) Interpretation of statutes---

----Courts should not disregard the clear language of the legislation, particularly when there was no challenge to its constitutionality.

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

----Arts. 119, 121 & 122---Fact/circumstance within the knowledge of a person--- Burden of proof--- Scope--- Burden of proving a circumstance/fact was on the person who had knowledge of the same and on his failure to do so, absence of such fact/circumstance was to be presumed.

Per Dost Muhammad Khan, J; disagreeing with Qazi Faez Isa, J.

(d) Ehtesab Ordinance (XX of 1997)[since repealed]---

----Ss. 3, 4 & 14(1)---West Pakistan Land Revenue Act (XVII of 1967), S. 119---Balochistan Government, Rules of Business, 1976---Corruption and corrupt practices---Civil liability---Amount allegedly misappropriated returned--- No misuse of authority--- No benefit gained---No loss caused to public exchequer---Effect---Accused in his capacity as Food Minister to the Provincial Government was alleged to have illegally issued orders to supply wheat to a Flour Mills on credit, managing director of which was the co-accused---Both the accused and co-accused were convicted and sentenced for the offence of "corruption and corrupt practices" under the Ehtesab Ordinance, 1997---Plea of accused that wheat was provided to co-accused on credit as per practice and no violation of any rule/regulation took place, and that the supply of the wheat to the Flour Mills was pursuant to the Prime Minister's directive of supplying cheaper flour to people of the Province---Validity---Reference was wrongly filed under S. 14(1) of Ehtesab Ordinance, 1997, instead of Ss. 3 & 4 of the said Ordinance---Before filing of the reference, the Provincial Board of Revenue issued a notification mentioning name of co-accused from whom recovery of amount was to be made as arrears of land revenue---Competent authority had thus described the liability of the co-accused as civil liability and the outstanding amount was construed as arrears of land revenue for the recovery of which elaborate procedure had been laid down in provisions of West Pakistan Land Revenue Act, 1967---Perusal of the relevant rules including the Balochistan Government Rules of Business, 1976, showed that there was no prohibition of divesting the then accused-Minister from issuing an order of release of wheat to the mills of the co-accused more so, when it had been released subsequently to other Flour Mills as well, therefore, present case was neither a case of misuse of authority nor a single iota/shred of evidence was available on record to slightly indicate that the accused-Minister was in any manner a beneficiary of the said transaction nor it had been established that co-accused in any manner was related to him much less dependent upon him or he was acting as his benamidar---Right from the very inception, it had squarely been communicated by accused to the Secretary Food and all relevant authorities that it was the then Prime Minister's directives to manage the crises of shortage of wheat flour in open market, thus, in relaxation of rules steps were required to be taken, subject of course to secure the interest of public exchequer---Such stance was not taken by the accused for the first time during the trial but right from the first directive he had issued---No one from the food department, or the Chief Minister or the then Chief Secretary raised a pointing finger that there was no directive of the then Prime Minister to such effect---Secretary Food did not resist the approval of the accused-Minister nor sent the case/summary to the then Chief Secretary to be placed before the then Chief Minister for final opinion but instead he agreed to it, with the suggestion that the period of payment for wheat be reduced and the entire flour mills be pledged with the Food Department---Such recommendations of the Secretary Food were faithfully approved by the accused-Minister firmly securing the interest of the public exchequer---Even otherwise misuse of authority due to ignorance or for other justifiable reason would not make the accused/wrongdoer liable to prosecution and conviction under the provisions of Ehtesab Ordinance, 1997---From the different letters/correspondence made by different authorities of the food department it was a well established fact that there was serious crisis of shortage of wheat flour in the Province and to silence the rising protests of the people and to minimize their miseries the old policy was relaxed in such manner---Amount outstanding against co-accused's Flour Mills was deposited during the proceedings of the present case and once such amount was accepted without any exception or reservation then, the very trial of both the accused and co-accused was not warranted under the law---Entire outstanding arrears were paid to the government exchequer and not a single penny was misappropriated so no wrongful loss was caused to the public exchequer nor the accused had gained anything illegal from the transaction---Delayed payment of outstanding arrears by co-accused would attract civil liability for compensation through damages if any, but in no manner it would constitute an offence under S. 3 or 4 of the Ehtesab Ordinance, 1997---Conviction of both the accused and co-accused were held to be without lawful authority and in disregard of law, and were accordingly set aside and both of them were acquitted of all charges---Appeal was disposed of accordingly.

(e) Public Policy---

----Policy of Government, departure from---Scope---Benefit of public---Elected governments were required to follow the policy formulated by it for the benefit of public at large but such policy could not be placed on a higher pedestal than binding law---Policies were framed and formulated so that the public at large got the benefit of the same---If at any point of time a policy became an absolute hurdle in managing a crisis like situation where public at large became the victim of such policy in a newly emerged situation, then the government had a right and privilege to make a departure from the policy and even to suitably amend the same.

Aitzaz Ahsan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.203 of 1997).

M. Afzal Siddiqui, Advocate Supreme Court for Appellants (in Criminal Appeal No.202 of 1997).

Fauzi Zafar, DPG NAB for the NAB.

Sohail Mehmood, DAG for the State.

Date of hearing: 4th December, 2014.

2015 S C M R 423

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

NASIR MEHMOOD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.222 of 2006, decided on 12th December, 2014.

(On appeal against the judgment dated 15-2-2005 passed by Lahore High Court, Lahore in Criminal Appeal No.285 of 2003 and Murder Reference No.15-T of 2003)

Per Ijaz Ahmed Chaudhry, J; Qazi Faez Isa, J agreeing; Dost Muhammad Khan, J dissenting. [Majority view]

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

----Ss. 302, 324 & 452---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & (c)---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, acts of terrorism, possession of illegal weapon---Reappraisal of evidence---Death sentence, confirmation of---Accused persons admitting guilt in their statements under S. 342, Cr.P.C.---Effect---Accused persons in their statements under S. 342, Cr.P.C. admitted their participation in the occurrence but only claimed that the person they intended to murder by firing escaped and in the process deceased persons got killed---Statements of accused recorded under S. 342, Cr.P.C. if believed in entirety also found support from the prosecution evidence---Accused persons were afforded full opportunity to get recorded their statements under S. 342, Cr.P.C. without any duress or coercion--- Even at trial when accused persons were duly represented no question of duress or coercion arose---Accused persons did not deny the occurrence in which six persons lost their lives but had pleaded that the incident had not taken place in the manner narrated by the prosecution---Prosecution story also found support from the statements of doctors, who had examined the deceased persons---Crime empties recovered from the spot matched with the weapon recovered from the accused and not with any other weapon recovered from the co-accused persons---Injured witness, who was a natural witness of the incident also implicated accused persons in her statement under S. 161, Cr.P.C.---Accused persons had made repeated fires---Sufficient material was available to connect accused persons with the commission of the crime---Courts below had rightly sentenced accused persons to death and explanation put forward by accused persons that they had no intention to kill the deceased persons did not warrant reduction/leniency in their sentence---Appeal was dismissed accordingly.

Azhar Iqbal v. State 2013 SCMR 383; Muhammad Azam v. The State 2009 SCMR 1232; Abdul Rehman alias Boota v. The State 2011 SCMR 34; Talat Mehmood v. Muhammad Ilyas 2002 SCMR 1889; Shabbir Ahmed v. The State PLD 1995 SC 343; Ghulam Qadir v. Esab Khan 1991 SCMR 61 and Ayyaz Ahmed v. Allah Wasaya 2004 SCMR 1808 ref.

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

----Ss. 164 & 342---Statements made by accused under Ss. 164 & 342, Cr.P.C.---Statement of an accused recorded under S. 342, Cr.P.C. was more reliable, compared to the statement recorded under S. 164, Cr.P.C.

Per Dost Muhammad Khan, J; dissenting with Ijaz Ahmed Chaudhry, J

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

----S. 302---Criminal Procedure Code (V of 1898), S. 154---Murder case---First Information Report (F.I.R.) prepared at the crime spot--- Reappraisal of evidence---Scope---F.I.R. lodged in a murder case at the crime spot without plausible reasons was considered to be suspicious and in such a case, the entire evidence was to be re-appraised with extra degree of care and caution.

Gulistan and others v. The State 1995 SCMR 1789 and Muhammad Hasan v. State 1991 PCr.LJ 2188 ref.

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

----Ss. 302, 324 & 452---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & (c)---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, acts of terrorism, possession of illegal weapon---Reappraisal of evidence---Benefit of doubt---Doubt regarding free will in admission of guilt---Effect---Death sentence reduced to imprisonment for life---Careless dispensation of justice--- Apparently accused persons were servants/employees of the acquitted co-accused persons, and might have been influenced to become scapegoats for the incident---Court in such circumstances had to see as to what was the compelling reason, which drove the accused persons to admit to the crime at the end of the trial, and whether such admission was given voluntarily with free will or it was contrived by someone---Accused persons had admitted their guilt when they were questioned by the Court under S. 342, Cr.P.C., but they were illiterate and the answers given on their behalf were in English---As soon as accused persons made an admission, the Trial Court was required to have had administered warning to them that such admission could be used against them and might ensue grave consequences, while also probing into the factors as to whether such admission was made with their free will, consent and understanding or it was otherwise---Trial Court had acted carelessly in the dispensation of justice and did not fulfil its legal obligation---When the majority of the co-accused in the present case, had been acquitted then, statements of the accused persons containing admission could not be construed as a strong corroboratory evidence to infuse credibility into their testimony, when they had told lies qua the acquitted co-accused---Electric bulbs, in the light of which the witnesses identified the culprits, were neither taken into possession nor the same had been indicated in the site plans by the draftsman---Question was as to how in a remote village the electric bulb was kept lit at night time, and as to why the complainant and the other two witnesses were chatting when the rest of the inmates were sleeping, being midnight time---When the person who was the target of accused persons was not present at the spot, then question was as to why they resorted to indiscriminate firing---Further question was as to why the complainant and the two witnesses escaped without getting a scratch of bullet or pellet on their bodies while the sleeping inmates became the victims---During the occurrence complainant showed unnatural conduct because instead of attending to his own victims, he allegedly regained courage to chase the accused persons empty handed---Question was as to why the injured witness who had sustained three bullet injuries was not quickly moved to the hospital to save her life--- Postmortem was conducted with a delay---Some of the empties recovered from accused persons did not match with the weapons recovered from accused persons---Crime empties were allegedly recovered on the night of occurrence from the two crime spots however, they were kept by the police and only sent to the expert along with the weapons after a delay of 15 days---True motive for the incident was not clear--- Death sentence awarded to accused persons was reduced to life imprisonment in such circumstances---Appeal was disposed of accordingly.

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

----S. 342---Admission of guilt---Death sentence, award of---Scope---Recording of evidence necessary---No one should be condemned and sentenced to death on a capital charge merely if he pleaded guilty to the charge but some evidence must be recorded which shall be taken in support of the plea of guilt of the accused---Admission of guilt could not be made sole basis for sentencing accused to death.

(f) Criminal trial---

----Witnesses---False statements made by witnesses---Once witnesses were found making false statements with regard to involvement of one of the accused then they lost integrity and their testimony could not be relied upon with regard to the other co-accused unless it was amply corroborated by independent and unimpeachable evidence.

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

(g) Criminal trial---

----Motive---When the court was confronted with a choice to believe the motive set up by the prosecution or the one given by the defence, then in such circumstances, benefit of doubt shall go to the accused.

Sikandar v. The State PLD 1963 SC 17 and Rashid Ali Khan v. The State 1992 PCr.LJ 1320 ref.

(h) Criminal trial---

----Sentencing---Scope---Convict remaining in death cell for a long duration---Effect---Such convict deserved lenient treatment in the matter of his sentencing.

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Appellants.

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

Date of hearing: 2nd December, 2014.

2015 S C M R 434

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

NATIONAL BANK OF PAKISTAN and another---Petitioners

Versus

ANWAR SHAH and others---Respondents

C.P.L.A. Nos. 2119 to 2121 of 2013 and 800 of 2014, decided on 8th December, 2014.

(On appeal against a common Judgment dated 29-10-2013, passed by the Islamabad High Court, Islamabad, in W.Ps. Nos.3948 and 4061 of 2013 and R.A. No.8 of 2013)

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

----S. 2(xxxiii)---"Workman", definition of---Scope---Nature of duties and functions---Designation of a person could not be considered to be a factor determining his status of employment in an establishment to be that of an "officer" or a "workman"---Nature of duties and functions of a person was to be considered to be the factor which would determine whether his status was that of a "workman" or not--- Designation per se was not determinative of a person being a "workman" rather the nature of his duties and function determined his status.

National Bank of Pakistan v. Puniab Labour Court No.5, Faisalabad and others 1993 SCMR 672 ref.

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

----Ss. 2(ix), (xxxiii) & 54---"Workman", status of---Grievance petition filed before the Labour Court---Maintainability---Person who approached a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman was denied by the employer, it became a bounden duty of such person to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer---Unless such categorical evidence was led by such person, he would not be considered to be a workman and his grievance petition would not be maintainable before the Labour forum.

National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and others 1993 SCMR 672 ref.

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

----S. 2(xxxiii)---"Workman"---Scope---National Bank of Pakistan---Officers Grade I to III were not "workmen"---On the basis of union's claim no declaration could be given that the Officers Grade-I to III in the establishment of National Bank of Pakistan were workmen---Order passed by National Industrial Relations Commission to the effect that Officers Grade-I to III were not workmen, was upheld---Appeal was allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos.2119 to 2121 of 2013).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.800 of 2014).

Nemo for Respondents (in C.Ps. Nos.2119, 2120 of 2013 and 800 of 2014).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.P. No.2121 of 2013).

Date of hearing: 8th December, 2014.

2015 S C M R 441

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

MUNIR AHMED---Petitioner

Versus

Mst. SHIRIN AKHTAR and others---Respondents

Civil Petition for Leave to Appeal No.139-K of 2014, decided on 29th December, 2014.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 & O.VII, R. 11---Constitution of Pakistan, Art.185(3)---Withdrawal of suit---Estoppel---Scope---Road accident---Suit for damages and compensation---Compromise agreement between defendant and some of the legal heirs of deceased---Defendant depositing compensation amount with Nazir of Court---Legal heirs who were not part of the compromise agreement withdrew their share from the compensation amount but subsequently filed an application for enhancement in compensation---High Court rejected the application for enhancement of compensation on the ground that the same had become infructuous after said legal heirs (who were not signatories to the comprise agreement) had withdrawn their shares from the compensation amount---Legality---Defendant had agreed to deposit Rs.5 million with Nazir of Court, whereafter an application under O.XXIII, R. 1, C.P.C. was filed in the suit, which was signed by wife and children of deceased---Father and mother of deceased did not sign the said application, thus the same was allowed without prejudice to their rights---When father and mother of deceased had not entered into any compromise with the defendant and the fact that suit was still being contested by them, mere subsequent withdrawal of the amount of their share would not operate as estoppel---Besides father and mother of deceased had agreed to deposit back in court their shares that they had withdrawn---Father and mother of deceased were contesting the suit and wanted its disposal on merits, hence dismissal of their application and suit on mere presumption of certain facts was not warranted by law---Counsel for defendant consented to disposal of the present petition on the terms that so far as the claim of the wife and children of deceased was concerned, which had been paid to them, the suit shall be deemed to have been finally disposed of, while subject to deposit of whole of the amount in court, which the father and mother of deceased had withdrawn during the pendency of the suit, the suit shall stand revived and would proceeded further in accordance with law---Petition for leave to appeal was converted into appeal and allowed accordingly.

Petitioner in person.

Abdul Qadir Khan, Advocate Supreme Court for Respondents.

Date of hearing: 29th December, 2014.

2015 S C M R 445

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

GOVERNMENT COLLEGE UNIVERSITY, LAHORE through Vice-Chancellor and others---Appellants

Versus

Syeda FIZA ABBAS and another---Respondents

Civil Appeal No.663 of 2008, decided on 30th December, 2014.

(On appeal from the judgment dated 10-3-2008 in W.P. No.11143 of 2007 passed by the Lahore High Court, Lahore)

(a) Government College University Lahore Examination Regulations---

----Regln.10.6---M.Sc. Banking and Finance---Gold medal, award of---Criteria---Respondent-student had obtained highest marks in all four semesters and also had the highest total marks---Respondent-student was not awarded the gold medal on the basis that University also took into account standard scores and whosoever received the highest Standard Score was awarded a gold medal and 'Standard Score' 'meant the transformed marks, obtained using the principle of Normal Curve---Validity---Regulation 10.6 of the Regulations stipulated that the person who was entitled to receive the gold medal was required to have passed all the four semesters within two years and the first position was to be determined by the total marks/score obtained in the four semesters---Previous applicable regulations of the University also provided that the first position shall be determined on the basis of total marks obtained in all semesters---Respondent-student had passed the four semesters within the prescribed period and had obtained the highest marks/scores, in each of the four semesters and overall too therefore, she was entitled to receive the gold medal whether she was adjudged by the earlier regulations or the current Regulations---Standard Score formula used by the University did not find mention in any of the Regulations---Moreover, the said formula took into consideration factors over which an aspirant did not have control, such as total number of students and the marks obtained by them; therefore, if the Standard Score formula was made the basis for determining as to who was to receive the gold medal, it was not only extraneous to the Regulations, but also illogical---Regulations of the University were clear, not open to interpretation, and had been enacted by the University therefore, the same must be abided by---Appeal was dismissed accordingly and University was directed to award the gold medal to the respondent-student.

(b) Educational institution---

----Policy matter---Courts should not interfere with the policy matters of educational institutions.

Nazir Ahmad v. Pakistan PLD 1970 SC 453; Radaka Corporation v. Collector of Customs 1989 SCMR 353; Noor Muhammad Khan Marwat v. Vice-Chancellor PLD 2001 SC 219; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Muhammad Arif v. University of Balochistan PLD 2006 SC 564 and Muhammad Ishfaq Ahmad Sial v. Bahauddin Zakariya University 2011 SCMR 1021 ref.

Mian Abdul Qaddous, Advocate Supreme Court along with Shehzad Ahmed, Deputy Controller Exams. for Appellants.

Respondent No.1 in person.

Date of hearing: 10th December, 2014.

2015 S C M R 452

[Supreme Court of Pakistan]

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

NOOR HASSAN and others---Appellants

Versus

ALI SHER and others---Respondents

Civil Appeal No.998 of 2004, decided on 18th February, 2014.

(Against the judgment dated 6-6-2001 passed by Lahore High Court, Bahawalpur Bench in C.R. No.77 of 1983)

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S. 41---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for declaration---Purchase from ostensible owner---Protection---Power of attorney---Proof---Plaintiffs assailed sale of their land through attorney on the pleas that they did not execute any power of attorney---High Court in exercise of revisional jurisdiction dismissed the suit---Validity---Only one marginal witness was produced and even he under cross-examination stated that he was called only to identify plaintiffs and that no money was given in his presence to them---No evidence was led by defendants as to why other marginal witness was not produced---Provisions of S.41 of Transfer of Property Act, 1882, were not applicable to transaction in question for the reason that had the defendants made a cursory inquiry they would have found that suit land was in the names of plaintiffs---Such was coupled with the fact that only a few days had elapsed between execution of power of attorney and sale transaction and the same should have alerted them particularly when parties were residents of the same area---Defendants could not be termed as bona fide purchasers for value so as to seek protection under S.41 of Transfer of Property Act, 1882---Defendants could not prove power of attorney in question and sale transaction on the basis of the same could not be given effect to---Appeal was allowed.

Zahid Hussain Khan, Advocate Supreme Court for Appellants.

Muhammad Anwar Bhor, Advocate Supreme Court for Respondents Nos.1 (i-ii and v), 2 - 8, 10 - 11, (vi, viii, xiii) and 12 - 17.

Ex parte for Respondents Nos. 1(iv), 9, 11(i-v, ix-xii), 5 - 6.

Date of hearing: 18th February, 2014.

2015 S C M R 456

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

CIVIL REVIEW PETITION NO.193 OF 2013 ETC.

C.R.P. NO. 193 OF 2013 IN CONSTITUTIONAL PETITION NO.71 OF 2011

ALI AZHAR KHAN BALOCH and others---Petitioners/Appellants

Versus

PROVINCE OF SINDH and others---Respondents

Civil Review Petitions Nos.193, 194, 199, 203, 204, 392, 387, 388, 389, 390, 391, 393, 394, 396, 397, 399, 400, 401, 402, 403, 409, 410, of 2013, C.R.P. No.125 of 2014 in Constitutional Petition No.71 of 2011, C.R.Ps. Nos.398, 407, 408, 411 of 2013 in Civil Appeal No.12-K of 2012, C.R.Ps. Nos. 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 of 2013, Criminal R. Ps. Nos. 38, 39, 40, 41 of 2014 in Criminal O. P. 89 of 2011, C.R.P. No. 412 of 2013 in C.M.A. 310-K of 2012 in Criminal O.P. 89 of 2011, Criminal M.A. No. 860 of 2013 in Criminal R.P. Nil of 2013 in Criminal O.P. 89 of 2011, C.M.A. No. 6628 of 2013 in S.M.R.P. 239 of 2013 in C.A. 12-K of 2012, C.M.A. No.4568 of 2013 in C.R.P. No.Nil of 2013 in C.A. 98-K of 2010 and Civil Petition No. 968 of 2014, decided on 5th January, 2015.

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court---Scope---Vires of an enactment---Supreme Court, in exercise of its constitutional jurisdiction under Art. 184(3) of the Constitution could examine the vires of an enactment either on its own or on an application or petition filed by a party.

(b) Constitution of Pakistan---

----Art. 184(3) & Part II, Ch. I [Arts.8 to 28]---Constitutional jurisdiction of the Supreme Court---Scope---Question of public importance---Requirement of Art. 184(3) of the Constitution was that if the Supreme Court considered that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution was involved, it had the jurisdiction to pass appropriate orders notwithstanding that there might be an alternate remedy---Word 'consider' used in the Art.184(3) of the Constitution related to subjective assessment of the Supreme Court---Supreme Court was the final authority upon the matters affecting judicial determination on the scope of Constitutional provisions, thus, once the Supreme Court arrived at the conclusion that a question of public importance having nexus with the fundamental rights guaranteed by the Constitution had been raised, the exercise of its jurisdiction under Art.184(3) could not be objected to either by the Government or by any other party.

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

----Chapter II [Ss.3 to 22]--- Constitution of Pakistan, Ch. I, Part. II [Arts.8 to 28] & Art. 184(3)--- Service Tribunals Act (LXX of 1973), S.3---Civil service---Legislation effecting rights of a civil servant---Civil servant filing constitutional petition before the Supreme Court---Maintainability---Civil Servant, being a citizen of Pakistan, equally enjoyed the fundamental rights conferred by Chapter 1 of Part II of the Constitution---When an impugned legislative instrument was violative of the Constitution and the fundamental rights of the civil servant, and issues raised in the constitutional petition were of public importance having far reaching effects on service structure, the petition under Art. 184(3) of the Constitution would be maintainable---Perception that a civil servant could only seek redressal of his grievance from the Service Tribunal or from any other forum provided by the Civil Servants Act, 1973 was thus not correct. [p. 500] C

Watan Party and others v. Federation of Pakistan PLD 2012 SC 292 and Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 ref.

(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr. 3(2), 4, 6, 8 & 9(1)---Sindh Civil Servants Act (XIV of 1973), Ss. 5 & 8---Constitution of Pakistan, Art. 188---Review petition---Absorption of 'government officers' from different departments into the Provincial Government as 'civil servants'---Legality---Question as to whether the Chief Minister/competent authority was empowered under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb the beneficiaries from different organizations to Provincial Service or cadre or post---Rule 9(1) of Sindh Civil Servants (Appointment, Promotion And Transfer) Rules, 1974 spoke of appointment by transfer to be made from amongst the persons holding appointments on regular basis mentioned in column 2 of the Table given under the said Rule---Word "person" as used in said R. 9(1) would, therefore, relate to the officers, who were civil servants and mentioned in column 2 of the Table given under the said Rule---Word "person" could not be given an ordinary meaning beyond the scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not empower the Government or selection authority to appoint a civil servant or any other person by transfer to any other cadre, service or post without his eligibility, qualifications and the conditions laid down under Rr. 3(2), 4, 6 & 8 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Section 8 of the Sindh Civil Servants Act, 1973 made a class of civil servants for proper administration and such class was not interchangeable at the whims of the selection authorities and/or the Government to extend favours to their blue eyed---No discretion was given under S. 5 of the Sindh Civil Servants Act, 1973, to appoint any person in civil service against a civil post in the manner other than prescribed by the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not confer permanent status on civil servant on his appointment by transfer nor it contemplated his absorption in the transferee department as a consequence of his appointment---Neither any procedure nor any mechanism was provided under the Sindh Civil Servants Act, 1973 or the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, to treat appointment by transfer as absorption in the transferee department---Neither a person could be absorbed under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, nor a civil servant/non-civil servant/deputationist could be allowed to travel horizontally outside his cadre to penetrate into a different cadre, service or post through an appointment by transfer---Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, could not be used as a tool to allow horizontal movement of a civil servant from his original cadre to another cadre against scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Any appointment by transfer under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had to be for a fixed term, and, on completion of such term, the civil servant had to join back his parent department---Concept of absorption of a civil servant and/or Government servant was foreign to the Sindh Civil Servants Act, 1973, as well as R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Said Rule did not permit transfer of non-civil servant to a non-cadre post or to a cadre post---Review petition was dismissed accordingly.

(e) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----Rr. 3(2) & 9-A---Constitution of Pakistan, Art. 188---Review petition---Civil servant rendered surplus---Appointment to any post in any department or office of Government---Scope---Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had been introduced with the object to accommodate the persons who were rendered surplus by abolition of their posts or the organization in which they were working had been taken over by the Provincial Government---Said Rule could not be used as a tool to accommodate a person by abolishing his post with an object to appoint him by transfer to a cadre or service or post in deviation of R. 3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which was a condition precedent for appointment to such post---In order to exercise powers under R.9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, there had to be some justification for abolition of the post against which such person was working---Such justification should come from the Department and/or organization which shall be in consultation with the Services and General Administration Department and approved by the competent authority---Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not permit appointment by transfer of a non-civil servant to any other Department and/or organization controlled by the Government to a post which restricted the transfer under R. 3(2) of the said Rules---Person could only be appointed by transfer under R. 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, if he had the eligibility, matching qualifications, expertise coupled with the conditions laid down under R. 3(2) of the said Rules for appointment to such post---Rule 9-A did not permit transfer of a non-civil servant to a cadre, service or post meant for a civil servant, recruited in the cadre or service or post after competitive process---Such an appointment by transfer in the nature of absorption would only be permissible, if the pre-conditions laid under R. 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, were met---Review petition was dismissed accordingly.

(f) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 9(1)---Sindh Councils (Unified Grades) Service Rules, 1982, R.12(5)--- Constitution of Pakistan, Arts. 4, 9 & 188---Review petition---Non-civil servants from different departments of Provincial government---Absorption of such non-civil servants into the Provincial government as 'civil servants'---Legality---Contention of non-civil servants/petitioners that they were absorbed from different organizations to Sindh Councils (Unified Grades) Service under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, read with R. 12(5) of the Sindh Councils (Unified Grades) Service Rules, 1982--- Validity---Power to appoint by transfer under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, would only extend to a civil servant---Petitioners who were not members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in deviation of the Sindh Councils (Unified Grades) Service Rules, 1982, could not be allowed to continue in the Unified Services Group---Provincial Chief Minister or the relevant Selection Board could not induct any stranger in the service of Unified Group either by exercising powers under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, or under R. 12(5) of the Sindh Councils (Unified Grades) Service Rules, 1982---Such act on the part of the Chief Minister or the Selection Board had circumvented the very framework of the Sindh Councils (Unified Grades) Service Rules, 1982, by introducing a parallel system based on discrimination and favourtism, which the law did not recognize---Any such induction was against the recognized norms of service law and, therefore, such inductees/petitioners were liable to be repatriated to their parent departments forthwith---Absorption of the petitioners under the garb of 'appointment by transfer' in the Unified Services Group had directly affected the rights of the employees in the service, guaranteed under Arts. 4 & 9 of the Constitution---Review petition was dismissed accordingly.

(g) Words and phrases---

----"Gallantry"---Meaning.

(h) Sindh Civil Servants Act (XIV of 1973)---

----S. 9A---Civil servant exhibiting act of gallantry while performing his duties---Reward---Out of turn promotion---Scope and applicability---Police personnel---Word "gallantry" as used in S. 9-A of the Sindh Civil Servants Act, 1973, could only apply to police personnel and award and reward on their gallantry performance should be conferred upon them and not to other species of civil servants---Such award or reward, however, should be given under a transparent process after objective assessment of their valour by a committee, in a just manner under the prescribed rules.

(i) Constitution of Pakistan---

----Arts. 184 & 185---Law declared as unconstitutional by the Supreme Court---Effect---Right/obligation/benefit under such law---Scope---No right or obligation could accrue under an unconstitutional law---Once the Supreme Court had declared a legislative instrument as being unconstitutional, the effect of such declaration was that such legislative instrument became void ab initio, devoid of any force of law, neither could it impose any obligation, nor could it expose anyone to any liability---Benefits accrued or extended to persons through legislation which was declared as unconstitutional would stand withdrawn as if they were never extended to them.

In re: Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829 distinguished.

(j) Mala fide---

----Legislature--- Mala fide could not be attributed to the legislature.

(k) Sindh Civil Servants Act (XIV of 1973)---

----S. 24---Constitution of Pakistan, Art. 188---Review petition---Civil servant---Power of Provincial Government to deal with case of any civil servant in a just and equitable manner---Scope---Hardship cases---Absorption of the civil servants/government servants/employees of government bodies and corporations---Grant of back-dated seniority---Out of turn promotion---Competent Authority by resorting to S. 24 of the Sindh Civil Servants Act, 1973, passed orders of absorption of civil servants/government servants/employees of autonomous bodies, semi-autonomous bodies and corporations, and granted them back-dated seniority besides out of turn promotions---Legality---Section 24 of the Sindh Civil Servants Act, 1973, was an enabling provision and conferred residuary powers upon the competent authority, to redress the grievance of an individual in a hardship case---Competent Authority under S. 24 of the Sindh Civil Servants Act, 1973, could grant benefit to an individual if it considered it just and equitable, without offending and impairing the statutory rights of other civil servants/employees---Competent Authority could exercise powers under S. 24 of the Sindh Civil Servants Act, 1973, by relaxing rules, if there was a vacuum in law, but such powers could not be exercised under the garb of the term "Relaxation of Rules" with the intent to bye-pass the mandate of law for extending favours to a person or an individual, offending and impairing the statutory rights of other civil servants---Competent Authority, by an executive order, could not frame Rules in exercise of powers under S. 24 of the Sindh Civil Servants Act, 1973---Authority conferred under S. 24 of the Sindh Civil Servants Act, 1973, was confined to hardship cases, without negating the vested rights of the other civil servants and/or causing prejudice to their interests---Exercise of powers under S. 24 of the Sindh Civil Servants Act, 1973, by the Competent Authority, in the present case, travelled beyond the scheme of the Sindh Civil Servants Act, 1973---Review petition was dismissed accordingly.

(l) Sindh Civil Servants Act (XIV of 1973)---

----S. 9---Constitution of Pakistan, Art. 188---Review petition---Civil service ---"Upgradation of a post"---Scope and pre-conditions---For justifying the upgradation (of a post), the Government was required to establish that the department needed restructuring, reform or that it was to meet the exigency of service in public interest---In the absence of such pre-conditions, upgradation was not permissible---Upgradation could not be made to benefit a particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or posting---Some of the civil servants, in the present case, had been promoted to higher posts against the tenural limitations, without qualifying the requisite departmental examinations/trainings under the garb of upgradation---Such civil servants were not promoted in accordance with law and needed to be reverted to their substantive ranks/posts which they were holding immediately before their upgradation and their seniority should be determined along with their batch-mates---Review petition was dismissed accordingly.

(m) Sindh Civil Servants Act (XIV of 1973)---

----Preamble---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 3(2) & 8---Constitution of Pakistan, Art.188---Review petition---Civil service---"Abolition of post"---Scope and pre-conditions---Term 'abolition' had not been defined in the Sindh Civil Servants Act, 1973---Department could only abolish a post with the concurrence of the Services and General Administration Department (S&GAD)---Abolition of a post was permissible in case, if the department required restructuring, reform or to meet exigency of service in public interest---Department could abolish a post for justiciable reason---Provincial Government, in the present case, had abolished some posts in individual cases with the object to accommodate a civil servant or government servant to appoint him by transfer to a post, service or cadre contrary to the restrictions contained in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Supreme Court directed that in future when a post had to be abolished within the Department and/or within the statutory body or organization controlled by the Provincial Government, the Department shall seek concurrence from the Services and General Administration Department (S&GAD) coupled with the reasons justifying abolition---Review petition was dismissed accordingly.

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

----S. 3(2)---Constitution of Pakistan, Arts. 175, 188, 199, 212 & 240---Civil Procedure Code (V of 1908), S. 9---Sindh Civil Courts Ordinance (II of 1962), S. 7---Civil servant---Matter relating to terms and conditions of service of civil servant---Ouster of jurisdiction of civil courts and High Courts---Question as to whether a civil servant could approach the (Sindh) High Court in a suit or in a constitutional petition in relation to the terms and conditions of his service---Civil and constitutional jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of civil servants---Section 3(2) of the Service Tribunals Act, 1973 provided that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including the disciplinary matters---Jurisdiction of all other courts was barred by the provisions of the Service Tribunals Act, 1973, read with Art. 212 of the Constitution---All civil courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under the Civil Procedure Code, 1908, could not entertain a civil suit of a civil servant relating to the terms and conditions of his service---Article 212 of the Constitution ousted the jurisdiction of High Courts and civil courts in respect of the matters pertaining to terms and conditions of civil servants---Provisions of Art. 212 of the Constitution did not confer a concurrent jurisdiction to civil courts, High Courts and Tribunals---Ouster of jurisdiction contemplated under the Art. 212 of the Constitution was a constitutional command, and, therefore, of necessity restricted the jurisdiction of civil courts and High Courts on the subject, which squarely fell within the exclusive domain of Service Tribunals---Exercise of jurisdiction by way of suit and constitutional petition filed by a civil servant with regard to his terms and conditions of service was violative of Arts. 175, 212 & 240 of the Constitution and the law---Review petition was dismissed accordingly.

(o) Constitution of Pakistan---

----Art. 242--- Civil servant, appointment of--- Public Service Commission---Transparency and meritocracy---Article 242 of the Constitution provided the mechanism for appointment of a civil servant through Public Service Commission---Article 242 of the Constitution was a safety valve which ensured the transparent process of induction in the civil service, and it provided appointment by Public Service Commission with the sole object that meritorious candidates joined the civil service---Government through executive or legislative instruments could not withdraw any post from the purview of the Public Service Commission.

(p) Civil service---

----Civil servant, status of---Scope---Non-civil servant could not be conferred the status of a civil servant.

(q) West Pakistan Civil Service (Executive Branch) Rules, 1964--

----R. 5(4)(b)---Constitution of Pakistan, Art. 188---Review petition---Recruitment or nomination to post of Assistant Commissioner---Discretion of Chief Minister---Scope---Provincial Chief Minister had the sole discretion to recruit/nominate an employee to the post of Assistant Commissioner in exercise of powers under R. 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964---Discretion to exercise such powers needed to be structured by framing policy, which should encourage merit---West Pakistan Civil Service (Executive Branch) Rules, 1964, were not meant to ignore transparency in nomination, as said appointments were made by bypassing the regular procedure provided for appointment of a civil servant in BS-17---Provincial Government, in the present case, had framed no policy for appointments under the West Pakistan Civil Service (Executive Branch) Rules, 1964, and it was the sole discretion of the Provincial Chief Minster---Absence of policy for nomination to the post of Assistant Commissioner meant that blue eyed of the highups would get such jobs---Supreme Court directed the Provincial Government to frame a transparent policy for nomination of officials under the West Pakistan Civil Service (Executive Branch) Rules, 1964, which could ensure that meritorious employees of the Departments mentioned in the said Rules, could be nominated on merits, after proper scrutiny---Review petition was dismissed accordingly.

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

----S. 3(2)---Constitution of Pakistan, Arts. 199 & 212---Civil service---Terms and conditions of service---Ouster of jurisdiction of civil courts and High Courts---Scope---High Court should not entertain a suit or petition filed by a civil servant relating to his terms and conditions of service, in view of the bar contained under Art. 212 of the Constitution--- Once a civil servant has exhausted all his legal remedies (up to the Supreme Court), he could not initiate a second round of litigation by filing a constitutional petition or suit on the same subject---Civil servant could not raise any issue which pertained to terms and conditions of his service, particularly, when such issue had finally been decided by the Supreme Court.

(s) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12A---Service Tribunals Act (LXX of 1973), S. 3(2)---Civil service---Date of birth, alteration in---Forum---Service Tribunal, jurisdiction of---Mode of correction in the date of birth of a civil servant was provided under R. 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which was part of the terms and conditions of service of a civil servant---Correction in date of birth by a civil servant could not be done through a civil suit (in view of the bar contained under Art. 212 of the Constitution)--- Civil servant had to approach the Service Tribunal for alteration in his date of birth.

Dr. Muhammad Aslam Baloach v. Government of Balochistan 2014 SCMR 1723 ref.

(t) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12A---Civil servant---Date of birth, alteration in---Scope---Civil Servant could not seek alteration in his date of birth at the verge of his retirement.

Dr. Muhammad Aslam Baloach v. Government of Balochistan 2014 SCMR 1723 ref.

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

----S. 22--- Service Tribunals Act (LXX of 1973), S. 4(1)(a)---Constitution of Pakistan, Arts. 4, 9, 10A, 25, 184(3) & 188---Review petition---Civil service---Expeditious remedy from the Service Tribunal, hindrance to---Civil servant could not approach the Service Tribunal unless he exhausted the remedy of departmental appeal/representation under S. 22 of the Civil Servants Act, 1973---Section 4(1)(a) of the Service Tribunals Act, 1973, provided that a civil servant could approach the Service Tribunal, subject to his exhausting remedy under S. 22 of the Civil Servants Act, 1973, after lapse of 90 days from the date on which such appeal/application was so preferred---Civil Servant aggrieved by an order of the department had to file a representation or appeal within 30 days of passing of such order and if the said authority did not decide his appeal/representation within 90 days, he could prefer an appeal before the Tribunal, after lapse of time as contained under S.4(1)(a) of the Service Tribunals Act, 1973---Supreme Court observed that provisions of S. 22 of the Civil Servants Act, 1973 and S. 4 of the Service Tribunals Act, 1973, were required to be re-examined after insertion of Art. 10A in the Constitution, as it restricted a civil servant from seeking expeditious remedy from the Service Tribunal which was constituted under the command of the Constitution; that after the promulgation of Art. 10-A of the Constitution, it was imperative to re-examine the existing law which apparently barred the filing of appeal in the Service Tribunal before the passage of mandatory 90 days, but practically for 120 days; that in certain situations a civil servant may face wrath and vendetta of his superiors, if he refused to carry out their illegal orders, and in such a situation, his representation etc. to the concerned authority to seek redressal of the wrong committed against him may be ignored or outright rejected by the authorities under political influence or for ulterior motives, leaving him with no option but to wait for mandatory period of 120 days to enable him to file an appeal etc. before the Service Tribunal; that in view of such problems faced by the civil servants due to lengthy process of filing appeal in the Tribunal and availing of relief, it was imperative to provide an efficacious and expeditious alternate remedy to civil servants by way of allowing them to approach the Service Tribunal, Federal or Provincial, without waiting for a period of 90 days, as contained under S.4(1)(a) of the Service Tribunals Act, 1973 by preferring an appeal against the orders; that at touchstone of Art. 10-A of the Constitution, the issues that were required to be answered were whether S. 4(1)(a) of the Service Tribunals Act, 1973, restricting a civil servant from filing appeal to the Tribunal after lapse of 90 days was violative of the spirit and command of Art. 10-A of the Constitution, and whether time frame provided by S. 4 of the Service Tribunals Act, 1973 debarring an aggrieved civil servant to approach the Service Tribunal amounted to denial of the relief to him in terms of Arts. 4, 9 & 25 of the Constitution---Supreme Court further observed that it was necessary to take up said issues in its suo motu jurisdiction under Art. 184(3) of the Constitution in a separate proceedings---Review petition was dismissed accordingly.

(v) Public functionary---

----"Good governance"---Scope---Illegal orders of higher authorities---Public functionaries had to reinforce good governance, observe rules strictly and adhere to rule of law in public service---Public functionaries were not obliged to follow illegal orders of higher authorities.

Syed Mehmood Akhter Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.

Sarwar Khan Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary Services (S&GAD) for Petitioners/Appellants (in C.R.P. 199 of 2013).

Shabbir Ahmed Awan, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 203 of 2013).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 392 of 2013).

Syed Ali Zafar, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 72 of 2013).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 388, 391, 389, 390, 397 of 2013 and Criminal R.P. 73 of 2013).

Tariq Mehmood, Senior Advocate Supreme Court for Petitioners/Appellants (in Criminal R.Ps. 70 and 71 of 2013 and C.P. 968 of 2014).

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 194 of 2013).

Shabbir Ahmed Awan, Advocate Supreme Court appeared and submitted written arguments on behalf of Ibadul Hasanin, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 204 of 2013).

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 393, 400, 407, 408 and 411 of 2013).

Petitioners/Appellants in person (in C.M.A. 4568 of 2013 in C.R.P. Nil of 2013 in C.A. 98-K of 2010, Criminal R.Ps. 38, 75, 401 of 2013, Criminal R.Ps. 38, 40 and 41 of 2014).

Hamid Khan, Senior Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 387 of 2013).

Dr. Farough Naseem, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 193, 396 of 2013 and 125 of 2014).

M. Aqil Awan, Senior Advocate Supreme Court for Petitioners Nos.1 to 3 (in C.R.P. 409 of 2013).

M. Aqil Awan, Senior Advocate Supreme Court for Petitioners/Appellants (in Criminal O.P. 121 of 2013 and Criminal M.A. 760 of 2013 in Criminal O.P. 89 of 2011).

Baz Muhammad Kakar, Advocate Supreme Court for Petitioners Nos.4 to 8 (in C.R.P. 409 of 2013).

Baz Muhammad Kakar, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 394 of 2013).

Shabbir Ahmed Awan, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 399 of 2013, Criminal R.Ps. 76, 83 of 2013, Criminal M.A. 860 of 2013 in Criminal R.P. Nil of 2013 in Criminal O.P. 89 of 2011).

Abdur Rehman Siddiqui, Advocate Supreme Court for Petitioners/Appellants (in C.R.P. 410 of 2013).

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 398 and 412 of 2013).

Khurram Mumtaz Hashmi, Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. 402 and 403 of 2013).

Adnan Iqbal Ch., Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 74 of 2013).

Yawar Farooqui, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 77 of 2013).

Rana Azam-ul-Hassan, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 79 of 2013).

Abid S. Zuberi, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 80 of 2013).

Irfan Qadir, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.Ps. 78 and 84 of 2013).

M. Munir Paracha, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.Ps. 81 and 82 of 2013).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Petitioners/Appellants (in C.M.A. 6628 of 2013 in S.M.R.P. 239 of 2013).

Nemo for Petitioners/Appellants (in Criminal M.A. 460 of 2013 in Criminal O.P. 89 of 2011).

Mian Abdul Rauf, Advocate Supreme Court for Petitioners/Appellants (in Criminal O.P. 103 of 2013).

Z.K. Jatoi, Advocate Supreme Court for Petitioners/Appellants (in Criminal R.P. 39 of 2014).

Sarwar Khan, Additional A.-G. Sindh, Abdul Fateh Malik, A.-G. Sindh, Rafique Mustafa Shaikh, Additional Secretary Services (S&GAD) and Ghulam Ali Bharmani, Dy. Secretary Services (S&GAD) for Respondents.

Dates of hearing: 5th, 6th, 10th June, 15th to 17th and 21st to 24th October, 2014.

2015 S C M R 581

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

FEDERAL PUBLIC SERVICE COMMISSION and others---Appellants

versus

ALTAF HUSSAIN and others---Respondents

Civil Appeals Nos.599 to 602 of 2014, C.M.A. No.3434 of 2014, C.M.A. No. 4915 and C.A. No.1547 of 2014, decided on 21st November, 2014.

(On Appeal from consolidated judgment dated 20-12-2013 of the Lahore High Court, Lahore, passed in W.Ps. Nos.19428 to 19430 of 2012, 14450 of 2013 and F.A.O. No.400 of 2013)

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

----S. 7---Rules of Business (1973), R. 4(4) & Sched. III, Serial No.89B---Federal Public Service Commission, role of---Scope---Examinations for recruitment in government departments---Eligibility/ineligibility criteria for candidates, determination of---Section Officers Promotional Examination, 2012---Employees of various field offices of the Federal Board of Revenue---Federal Public Services Commission floated an advertisement in the press for holding Section Officers Promotional Examination 2012, wherein it was mentioned that employees of subordinate offices of Customs/Central Excise and Income Tax including field offices of the Federal Board of Revenue were not eligible to appear in the said examination---Federal Board of Revenue had issued a letter dated 21-4-2011 wherein it had declared all its field offices as its subordinate offices---Respondents who were employees of various field offices of the Federal Board of Revenue challenged their ineligibility for appearance in the examination in question by contending that Federal Board of Revenue had been declared as an attached department of the Revenue Division by the Rules of Business (1973), and the employees working in the Federal Board of Revenue irrespective of the fact whether they were working in the field offices or in the Headquarters, were eligible to appear in the Section Officers Promotional Examination, 2012---Validity---Federal Public Service Commission had only an advisory role for the purpose of qualification of different persons and had not been conferred with the powers to determine eligibility or otherwise of a candidate in recruitment process of a department--- Recruitment rules were framed by the respective department of the Federal Government in consultation with the Establishment Division and the Federal Public Service Commission had to strictly follow the eligibility or ineligibility criteria mentioned in such rules---Federal Public Service Commission had not been conferred with the power to amend or modify the recruitment rules--- Letter issued by the Federal Board of Revenue on the basis of which the criteria for ineligibility had been given in the present case was in conflict with the language of Rules of Business (1973)---Under Schedule III, Serial No.89B of the Rules of Business (1973), the Federal Board of Revenue had been shown as an attached department of the Revenue Division---Federal Board of Revenue (on its own) could neither substitute nor amend the said entry No.89B in the Rules of Business (1973) through an unauthorized letter---Federal Board of Revenue was admittedly an attached department of the Revenue Division as per the Rules of Business (1973) and could not itself declare the field offices as its subordinate offices---Letter in question issued by the Federal Board of Revenue was unauthorized and was tainted with malice with the object to deprive the employees of the Federal Board of Revenue from availing the opportunity of appearing in the Section Officer Promotional Examination, 2012---High Court had rightly held that the ineligibility criteria for the examination in relation to subordinate officers such as Customs/Central Excise and Income Tax including field offices of the Federal Board of Revenue , as well as the letter issued by the Federal Board of Revenue were illegal and unlawful---Respondents who were employees of various field offices of the Federal Board of Revenue were eligible to appear in the Section Officers Promotional Examination, 2012---Appeal was dismissed accordingly.

Sajid Ilyas Bhatti, D.A.-G., Qari Abdul Rasheed, Advocate-on-Record and Mehmood Ahmed, Director (L) for Appellants (in all appeals).

Shakeel Ahmed Malik, J.S., D&L, Establishment Division on Court's Call.

Respondent No.1 in person (in C.A. No. 599 of 2014).

Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (in C.A. No. 599 of 2014).

Raja Muhammad Asghar, Advocate Supreme Court for Respondent No.1 (in C.A. No.600 of 2014 and C.M.A. 3434 of 2014).

Ibrar Ahmed, Advocate Supreme Court for Respondent No. 3 (in C.A. No.600 of 2014 and C.M.A. 3434 of 2014).

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Applicant (in C.M.A. 3434 of 2014).

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.1 (in C.As. 601 - 602 of 2014).

Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (in C.As. 601 - 602 of 2014).

Ibrar Ahmed, Advocate Supreme Court for Respondent No.3 (in C.As. 601 - 602 of 2014).

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.1 (in C.M.A. 4915 and C.A. 1547 of 2014).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record and Imran Fazal Siddiqui, Advocate Supreme Court for Respondent No.2 (RTO) (in C.M.A. 4915 and C.A. 1547 of 2014).

Dates of hearing: 20th and 21st November, 2014.

2015 S C M R 588

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

IRSHAD AHMED SHEIKH---Appellant

versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Civil Appeal No.1383 of 2002, decided on 14th January, 2015.

(On appeal against the judgment dated 4-10-2002 passed by High Court of Sindh, Karachi in C.P. No.D-76 of 2002)

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

----S. 16A(a)--- Chairman, National Accountability Bureau---Powers of---Transfer of case from Anti-Corruption Court to Accountability Court, application for---Chairman, National Accountability Bureau could apply before Special Judge, Anti-Corruption for transfer of a case from Anti-Corruption Court to Accountability Court.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 distinguished.

Capt. (R) Nayyar Islam v. Judge Accountability Court No. III, Lahore 2012 SCMR 669 ref.

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

----Ss. 2 & 16A(a)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---National Accountability Ordinance, 1999---Retrospective effect---Scope---FIR was registered against appellant-accused under S. 161, P.P.C. & S. 5(2) of the Prevention of Corruption Act, 1947, and he was facing trial in the Anti-Corruption Court---Case of accused was transferred to the Accountability Court on an application made by Chairman, National Accountability Bureau---Plea of accused that the incident took place in the year 1996-1997 whereas the National Accountability Ordinance, 1999, was promulgated in the year 1999, thus, the Accountability Court could not decide his case---Validity---Section 2 of the National Accountability Ordinance, 1999 clearly stipulated that the said Ordinance shall be deemed to have come into force from the 1st of January, 1985---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---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment---Plea of accused was rejected in such circumstances---Appeal was dismissed accordingly.

Jamshaid Gulzar v. Federation of Pakistan 2014 SCMR 1504 ref.

(c) Interpretation of statutes---

----Retrospectivity--- Scope--- Vested right--- Effect---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---Legislature had the authority to promulgate or amend a law with retrospective effect by intendment.

Jamshaid Gulzar v. Federation of Pakistan 2014 SCMR 1504 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant.

Waqas Qadeer Dar, Prosecutor-General and Fauzi Zafar, D.P.-G. for the NAB.

Date of hearing: 8th December, 2014.

2015 S C M R 595

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ejaz Afzal Khan, JJ

AL-HAMZA SHIP BREAKING CO. and 14 others---Appellants

versus

GOVERNMENT OF PAKISTAN through Secretary Revenue Division, Ministry of Finance, Islamabad and others---Respondents

Civil Appeals Nos.2535 to 2538 of 2001 and 1780 to 1790 of 2002, decided on 14th January, 2015.

(Against the judgment dated 5-10-1999 of the High Court of Balochistan, Quetta passed in Constitution Petitions Nos.632, 665, 807, 808, 68, 70, 101, 102, 72, 103, 70, 257, 242, 69 and 328 of 1999)

(a) Customs Act (IV of 1969)---

----S. 25-B [since repealed]---S.R.O. (K.E.)/98 dated 31-10-1998---Fixation of value of imports---"Import Trade Price"---Authority and discretion of customs department to fix the "Import Trade Price"---Scope---Valuation of vessels---Appellant-companies were importers engaged in the business of importing vessels for the purposes of breaking up and scrapping---Appellant-companies entered into different agreements on various dates for the importation of vessels for scrapping---Sale prices of the ships were declared per the invoices and the bills of entry, however such prices were less than the "Import Trade Price" fixed by the customs authorities---Subsequently appellant-companies presented certain invoices to customs authorities as evidence requesting them to decrease the "Import Trade Price" of vessels as their prices had declined in the international market, but such request was rejected---Validity---After appellant-companies had presented invoices/evidence to customs authorities about the decline of prices of vessels, a decision by the Controller Valuation was required as per parameters of S. 25B of Customs Act, 1969---Import Trade Price was generally valid for a period of three months, but in cases of abnormal fluctuation of plus or minus 10%, Import Trade Prices were to be revised upward or downward forthwith as and when such fluctuation took place---Controller Valuation had been delegated the authority to decide matters on the basis of the parameters provided under S. 25B of the Customs Act, 1969---Said parameters made it mandatory for the Controller to revise the Import Trade Price as soon as at least two invoices had been filed showing a fluctuation of more than 10% of the Import Trade Price---Controller, in the present case, received as many as 10 different invoices by appellant-companies showing that prices had fallen by an average of about 15%, but he still failed to revise the Import Trade Price, which was clear violation of the parameters under S. 25B of the Customs Act, 1969---Instead of revising the Import Trade Price to a reasonable figure between the minimum and the maximum prices, Controller demanded Bank Certificates and Bills of Entry from appellant-companies as evidence which were not requirements as per parameters provided under S. 25B of the Customs Act, 1969---Appellant-companies did provide Bank certificates and Bills of Entry but the Controller still did not revise the Import Trade Price---Life of an Import Trade Price notification was 3 months generally---Customs authorities did revise/reduce the Import Trade Price of vessels through a notification after a delay of about 8 months, but by such time the previous Import Trade Price notification had outlived its utility---Such (belated) decrease in Import Trade Price also did not commensurate with the price decline (in the market)---Furthermore, the appellant-companies were denied even such partial relief of revised Import Trade Prices since their Bills of Entry had been filed prior to the date of notification---Supreme Court remanded the cases to the customs authorities for fresh determination, not on a case by case approach, but by a generalized approach which was in line with the spirit of S. 25-B of the Customs Act, 1969, [since repealed] as it was in place at the relevant time---Appeals were disposed of accordingly.

(b) Statutory functionary---

----Decision by a statutory functionary on the basis of a direction by a superior officer was a nullity.

(c) Customs Act (IV of 1969)---

----S. 25-B [since repealed]---Fixation of value of imports---Legislative intent behind introduction of S. 25-B of the Customs Act, 1969 [since repealed]---Enactment of S. 25-B of the Customs Act, 1969 was an attempt to curtail arbitrary or mala fide decision making by individual customs officers in a wide range of cases---Customs officers, in some cases, did exercise their powers for the attainment of collateral objectives unknown to the law---Such objectives may be personal financial gain or enhancement of career prospects by collecting extra revenue for the Government in violation of the law---Neither was permissible---Presumably with a view to overcoming such problem the (erstwhile) Central Board of Revenue (CBR) transferred the power to fix values of goods from individual customs officers to the Board itself, or someone nominated by it, so as to obtain uniformity and consistency---Underlying idea, quite clearly, was to restrain arbitrariness and not to encourage it.

(d) Tax---

----Collection of tax---Tax had to be collected in accordance and only in accordance with law.

(e) Customs Act (IV of 1969)---

----S. 25-B [since repealed]--- Fixation of value of imports---Parameters provided under S. 25-B of the Customs Act, 1969---Scope and purpose.

Following procedural safeguards were introduced into the system by the parameters provided under S. 25-B of the Customs Act, 1969 in order to ensure transparency:--

(i) The criteria for decision making were laid down. This was a rational approach which contemplated the provision of a specific justification for the revision of prices. The time period for the life of a notification was specified, both originally as well as from time to time. The general life of a notification was stated to be about three months but in cases of sharp fluctuations of plus or minus 10% the revision was to take place forthwith.

(ii) The basis for revision was specified. A minimum of two invoices was required to trigger off the price revision mechanism to deal with international price fluctuation. Commodity prices fluctuated not merely on a month to month, week to week, day to day, but even on an hourly basis. Obviously it was not possible to track prices with absolute precision but a reasonable endeavour had to be made and this was sought to be achieved by the parameters.

(iii) In order to ensure transparency it was made mandatory that Import Trade Prices would not be fixed without consultation with the concerned registered trade bodies. This was a sensible and pragmatic approach. Since a general fixation of prices was being made it was not practicable to give a hearing to each and every individual importer. Accordingly, the registered trade body representing importers of those items was conferred the right of consultation. Thus the principles of natural justice were adhered to.

(iv) It was made clear that the jurisdiction conferred under S. 25B of the Customs Act, 1969, was not meant to be exercised once and for all and thereafter set aside. It was mandatory to exercise it "from time to time" so as to ensure and grant protection both to importers as well as the exchequer. In the event that prices had risen it was mandatory to increase the Import Trade Prices and in the event that they had declined a corresponding reduction had to be made. Failure to do so would invalidate the notification.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Questions of disputed fact---Generally the High Court in the exercise of its constitutional jurisdiction did not decide questions of disputed facts, but this did not mean that decisions which were manifestly arbitrary, based on no evidence, or contrary to the record and not justified by law would be upheld.

Khalid Anwar, Senior Advocate Supreme Court for Appellants (in all appeals).

M. S. Khattak, Advocate-on-Record for Appellants (in C.As. 1780 to 1790 of 2002).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1 (in all appeals).

Syed Arshad Hussain Shah, Advocate Supreme Court for Respondent No.2 (in all appeals).

Raja Muhammad Iqbal, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Tausif Aman, Assistant Collector, Gadani for Respondents Nos.3 to 5 (in all appeals).

Anwar Kamal, Senior Advocate Supreme Court as Amicus curiae.

Date of hearing: 27th November, 2014.

2015 S C M R 615

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Qazi Faez Isa, JJ

Raja MUHAMMAD ARSHAD---Appellant

versus

Raja RABNAWAZ---Respondent

Civil Appeal No.83 of 2011, decided on 8th January, 2015.

(On appeal from the judgment/order dated 4-2-2010 in C.R. No.76 of 2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi)

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

----Ss. 201 & 208---Civil Procedure Code (V of 1908). S. 12(2)---Punjab Pre-emption Act (IX of 1991), S. 13---Registered power-of-attorney, cancellation of---Scope---Cancellation neither registered nor on a stamp paper---Effect of such cancellation with regard to third parties---Pre-emptor/appellant had filed a suit for pre-emption against the vendee---Suit was dismissed by Trial Court---Pre-emptor filed an appeal before appellate court, during pendency of which agent/attorney of vendee recorded his statement in Appellate Court to the effect that both parties had entered into a compromise---Appellate court decreed the suit for pre-emption on basis of such compromise---Subsequently vendee filed an application under S. 12(2), C.P.C. contending that the compromise was invalid because he had cancelled his attorney's power-of-attorney before he made the compromising statement before Appellate Court---Validity---Vendee did not deny that a registered power-of-attorney was indeed executed by him in favour of his attorney/agent---Cancellation of power-of-attorney was neither registered nor was it on stamp paper, in fact such cancellation was on a plain piece of paper---Pre-emptor was a third person who had no notice of the cancellation of the power-of-attorney by the vendee---Pre-emptor could not be burdened with any notice of any cancellation of the power-of-attorney---Appeal filed by vendee was dismissed accordingly.

Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315 and Muhammad Ali Razi Khan v. Muhammad Ali Zaki Khan and others 2007 MLD 54 distinguished.

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

----S. 12(2)---Decree challenged on the plea of fraud---Person against whom fraud alleged---Necessary party, impleadment of---Scope---Section 12(2), C.P.C. was a substitute for a separate/independent suit for setting aside of a decree---Application under S. 12(2), C.P.C. had all the relevant attributes of a suit and therefore, the person against whom an allegation of fraud was made was a necessary party and must be impleaded in the application as a respondent.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellant.

Sardar Muhammad Aslam, Advocate Supreme Court and Syed Rafaqat Hussain, Advocate-on-Record for Respondent.

Date of hearing: 8th January, 2015.

2015 S C M R 620

[Supreme Court of Pakistan]

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

ABDUL MAJEED through L.Rs. and others---Appellants

versus

SHER DIN through L.Rs.---Respondents

Civil Appeal No.776 of 2008, decided on 14th January, 2015.

(On appeal form the judgment dated 31-1-2008 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No.2 of 1998)

(a) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 8(2)---Colonization of Government Lands (Punjab) Act (V of 1912), S. 3--- State of Bahawalpur, Notification No. 74, dated 12-6-1944---Pre-emption suit---Colony land situated in (former) State of Bahawalpur---Exclusion of colony land from right of pre-emption---Scope---Colonization of Government Lands (Punjab) Act, 1912 was applicable to the (former) State of Bahawalpur from 30-4-1926---Land in dispute was initially allotted under the Colonization of Government Lands (Punjab) Act, 1912, and by virtue of State of Bahawalpur, Notification No.74, dated 12-6-1944, such land was excluded from the purview of the Punjab Pre-emption Act, 1913, for which purpose a notification under S. 8(2) of the said Act was issued---Sale of disputed land in the present case took place in the year 1966 during currency of the said notification under S. 8(2) of the Punjab Pre-emption Act, 1913---Evidence on record showed that disputed land was initially allotted as colony land, and as such it was excluded from the exercise of the right of pre-emption---Upon issuance of notification under S.8(2) of the Punjab Pre-emption Act, 1913, the right of pre-emption, if any, stood extinguished---Consequently, the sale in question pertaining to the land in dispute was not pre-emptable---Appeal was allowed accordingly and pre-emption suit was dismissed.

(b) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 8(2)---Colonization of Government Lands (Punjab) Act (V of 1912), S. 3---Pre-emption suit---Colony land---Exclusion of colony land from right of pre-emption---Scope---Land once declared as a colony land and subjected to the Colonization of Government Lands (Punjab) Act, 1912, would remain subject to the said Act and thus exempt from pre-emption, notwithstanding that the land had ultimately become privately owned.

Muhammad Siddique v. Muhammad Sharif and others 2012 SCMR 1387 ref.

(c) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 15---Transfer of Property Act (IV of 1882), S. 54---Registration Act (XVI of 1908), S. 17---Pre-emption suit---Maintainability---Purported vendee---Status as owner in the same khata---Oral sale---Suit land situated in former State of Bahawalpur---Purported pre-emptor had instituted the suit for pre-emption, claiming the status of an owner in the same khata on the basis of an oral sale---Section 54 of the Transfer of Property Act, 1882, was applicable in the State of Bahawalpur at the relevant time, requiring the sale to be effected through an instrument in writing, which obviously would necessitate its registration under the Registration Act, 1908---Oral sale, therefore, was invalid and not sufficient to maintain a suit for pre-emption on the basis thereof---Oral sale in view of S. 54 of the Transfer of Property Act, 1882, did not clothe the purported vendee with a right sufficient to maintain a suit for pre-emption on the basis thereof---Appeal was allowed accordingly and pre-emption suit was dismissed.

Jangi v. Jhanda and others PLD 1961 (W.P.) Baghdad-ul-Jadid 34; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 Baghdad-ul-Jadid 42 and Muhammad Fazal v. Kaura through LRs 1999 SCMR 1870 ref.

M. A. Rehman Qureshi, Advocate Supreme Court for Appellants.

Muhammad Ilyas Sheikh, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 14th January, 2015.

2015 S C M R 630

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ejaz Afzal Khan, JJ

MUHAMMAD AMIN MUHAMMAD BASHIR LIMITED---Appellant

versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Finance, Central Secretariat, Islamabad and others---Respondents

Civil Appeal No.214 of 2005, decided on 24th November, 2014.

(Against the judgment dated 14-9-2004 of the High Court of Sindh, Karachi passed in C.P. No.D-511 of 1992)

(a) Customs Act (IV of 1969)---

----Ss. 25 & 25-B---S.R.O. 356(KE) dated 29-10-1991---Fixation of value of imports---Principles---Customs authorities---Discretion in valuation of goods, exercise of--- Scope--- "Import Trade Price"---Appellant-company entered into a contract with a foreign-company for the importation of sugar from Thailand at a price of US $ 292.50 per metric ton---Customs Department issued a notification, S.R.O. 356(KE) dated 29-10-1991 purportedly fixing the "Import Trade Price" (ITP) of sugar imported from Thailand at US $ 331 per metric ton---On arrival of the consignment the appellant-company filed Bill of Entry declaring the value of the consignment at the contract price---Customs authorities disregarded the claim that the duty should be fixed on the contract price and imposed duty on the "Import Trade Price" value of US $ 331 per metric ton---Legality---Section 25-B of the Customs Act, 1969 (as was in force then) authorized the Central Board of Revenue, or an officer authorized by it, to fix the price of imported goods at such rate as it deemed fit---On basis of said section, Customs Department had issued the notification in question purportedly fixing the "Import Trade Price" (ITP) of sugar imported from Thailand---Section 25 of the Customs Act, 1969 provided the basis on which the value of goods which were imported or exported had to be fixed---Said section (as was in force then) was based on the concept of "normal value" which, as defined, was the value of goods denoted by contracts between buyers and sellers which reflected arm's length transactions between independent buyers and sellers operating in the open market---Notwithstanding the very wide language used in S. 25-B of the Customs Act, 1969, the powers exercisable by the Central Board of Revenue thereunder were to be limited and constrained by S. 25 of the Customs Act, 1969, which was the substantive section of law for the fixation of prices---Central Board of Revenue did not have and could not be allowed to have unfettered discretion---Exercise of any discretionary power must be rational and have a nexus with the objective of the underlying legislation---Customs authorities had fixed the "Import Trade Price" of sugar imported from Thailand by relying on an invoice for sugar imported from another country of origin---For carrying out valuation of imports on a realistic basis it must be founded on the prevalent price at the place of origin of the goods, and not on the basis of prices prevalent in another country---Said criterion had clearly been violated in the facts of the present case---Determination of the "Import Trade Price" should have nexus not merely with the price at the place of the origin of goods but also with the relevant time---International prices of commodities varied hugely with the passage of time---Customs authorities in the present case had based the "Import Trade Price" of sugar based on prices prevailing nine months prior to the arrival of the consignment, which was clearly defective---More realistic and reasonable time period should have been utilized for such purpose---Impugned notification, S.R.O. 356(KE) dated 29-10-1991 purportedly fixing the "Import Trade Price" (ITP) of sugar imported from Thailand at US $ 331 per metric ton was not valid in such circumstances and was struck down---Supreme Court remanded the case to the concerned department for fixation of price afresh in terms of S. 25-B of the Customs Act, 1969 as it was prevalent at the relevant time---Appeal was disposed of accordingly.

Phassco Hardware Company v. The Government of Pakistan PLD 1989 Kar. 621 approved.

(b) Legislation---

----Delegated legislation---Principles---Discretion, exercise of---Scope---Delegated legislation entitled the delegate to carry out the mandate of the legislature, either by framing rules, or regulations, which translated and applied the substantive principles of law set out in the parent legislation or by recourse to detailed administrative directions and instructions for the implementation of the law---Delegated legislation was intended to enforce the law, not override it, and it could be used to fill in details but not vary the underlying statutory principles---In case of conflict delegated legislation must yield to the legislative will, as it was below and not above the law---Minutiae could be filled in but the basic law could neither be added to nor subtracted from.

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

----S. 24A---Executive authority---Discretion, exercise of---Scope---When legislature conferred a wide ranging power, it must be deemed to have assumed that the power would be, firstly, exercised in good faith, secondly, for the advancement of the objects of the legislation, and, thirdly in a reasonable manner---Where the authorities failed to regulate their discretion by the framing of rules, or policy statements or precedents, it became mandatory for the courts to intervene in order to maintain the requisite balance for the exercise of statutory power.

Amanulla Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Abid Hasan v. PIAC 2005 SCMR 25 ref.

(d) Customs Act (IV of 1969)---

----S. 25-B---Fixation of value of imports by customs authorities---Principles.

Following are the principles applicable when customs authorities fixed the value of imported goods at such rates as they deemed fit:--

(i) The first principle which could be laid down was that the exercise of power by customs authorities in fixing value of imports had to be based on concrete evidence. In other words there had to be evidence relating to the import of goods on the basis of which the valuation process was to be carried out. It was not open to the (erstwhile) Central Board of Revenue or the Controller of Valuation to exercise arbitrary power of valuation which were not rooted in hard evidence, or were essentially speculative in nature;

(ii) the second principle was that the evidence must he based, and linked, with the country of origin of the goods. This also was obvious as there were countries in which price levels were substantially higher or lower than those of other countries. Similar or apparently similar goods could be sold at widely different prices depending on, for example, the country of origin. If the valuation was to be carried out on a realistic basis it must be founded on the prevalent price at the place of origin of the goods;

(iii) the third principle was based on a recognition of the inherent fluctuation of prices of commodities, which varied sharply from time to time. Prices prevailing many months earlier could hardly be considered to be determinative of the current market price. Since prices may vary, not merely from month to month, but even day to day, it should be recognized that it may not be practicable to lay down a strictly applicable time frame. The general principle, however, could be enunciated that if market conditions had changed substantially then it was mandatory for the price fixing authority to take due notice of the same. Valuation of imported goods should be a good faith valuation which was based on factual evidence prevalent at the relevant time. Although it may not be possible or practicable to have an exact correspondence with the price at the precise time in question but there should be a reasonable correspondence or nexus with the relevant time. What such reasonable time would be was difficult to state in the abstract since it would vary depending on the nature of the goods in question. It could be one month or perhaps two or three months. The point was it should be a reasonable period given the facts and circumstances of the case, and;

(iv) the fourth principle was that the decision should be based on relevant facts and data and not on extraneous circumstances. Just as a decision which disregarded relevant data was liable to be struck down, similarly a decision based on irrelevant data would be equally open to objection.

Messrs Latif Brothers v. Deputy Collector Customs Lahore 1992 SCMR 1083 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Civil Procedure Code (V of 1908), Part VII---"Judicial review" and "appeal"--- Distinction--- Appellate court essentially stood in the shoes of a Trial Court and re-examined the evidence as a whole---Nature of the jurisdiction in cases of judicial review was completely different, in that a constitutional court examined not merely the decision, but the decision making process in order to determine whether that was appropriate or not.

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

----S. 24A---Interpretation---Section 24A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised "reasonably, fairly, justly and for the advancement of the purposes of the enactment" and further clarifies that an executive authority must give reasons for its decision---Any action by an executive authority which is violative of said principles is liable to be struck down.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Kh. Ahmed Hassan, D.A.-G. for Federation.

Malik Itaat Hussain Awan, Advocate Supreme Court for Respondents Nos.2 to 4.

Date of hearing: 24th November, 2014.

2015 S C M R 642

[Supreme Court of Pakistan]

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

Messrs UZMA CONSTRUCTION CO.---Appellant

versus

NAVID H. MALIK---Respondent

Civil Appeal No. 331 of 2006, decided on 5th January, 2015.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 7-10-2005 passed in F.R.A. No.1060 of 2000)

(a) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(2)(i)---Ejectment application---Grounds---Default in payment of rent---Tenancy agreement for a fixed period of time---Clause/term in tenancy agreement regarding grace period allowed to tenant for payment of rent---Expiry of tenancy agreement----Question as to whether after expiry of tenancy agreement, tenant was to be benefitted with a grace period as mentioned in the (expired) lease agreement or the statutory period of sixty days mentioned in S. 17(2)(i) of the Cantonments Rent Restriction Act, 1963---Even after the expiry of tenancy period, the terms as regards the mode and time of payment shall continue to remain in force between the parties, being not repugnant to the statutory provisions---Where the parties had mutually agreed for advance payment of rent for each month, then the said term was binding on the parties even after the expiry of the terms of tenancy agreement---Ejectment order was passed and appeal was allowed accordingly.

Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190; Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228 and Shezan Limited v. Abdul Ghaffar 1992 SCMR 2400 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(2)(i)---Ejectment application---Default in payment of rent---Discretion of Rent Controller to condone default in payment of rent---Scope---Rent Controller, had the discretion to condone default in the payment of rent in a just, equitable and fair manner.

(c) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(2)(i)---Ejectment application---Default in payment of rent---Scope--- Tenant tendering rent through cross-cheque---Legality---Rent sent through cheque, being not a valid tender, would be of no consequence and would constitute a default in payment of rent.

Reckitt and Colman of Pak Ltd. v. Saifuddin G. Lotia 2000 SCMR 1924 ref.

(d) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(2)(ii)(a)---Ejectment application---Grounds---Subletting of premises---Burden of proof---Scope---Once the tenant had admitted parting with the possession of the premises in favour of a third party, the burden of proof that it did not amount to subletting, would squarely shift upon the tenant in terms of S. 17(2)(ii)(b) of the Cantonments Rent Restriction Act, 1963.

Hyder Ali Bhimji v. VIth Additional District Judge and others 2012 SCMR 254 ref.

(e) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(2)(ii)(a)---"Subletting" of premises---Scope---Tenant entering into lease agreement in his personal capacity---Tenant handing over possession of rented premises to a company wherein he was a major shareholder and Director---Plea of tenant was that landlord had given him permission to operate a business from the rented premises and he was conducting business as a Director of the company---Validity---Tenant entered into the lease agreement for the rented premises in his personal capacity and not as the Director of the company, which admittedly had been in physical possession of the rented premises---Company was a legal entity independent and separate from its Directors or shareholders, therefore, the lease agreement, entered into by the tenant could not be said to be a lease entered into on behalf of the company, and the admitted parting of possession in favour of the company would amount to "subletting", regardless of, whether the tenant was a director or shareholder of the company---Ejectment order was passed and appeal was allowed accordingly.

Manek J. Mobed v. Shah Behram PLD 1974 SC 351 ref.

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

Wasim Sajjad, Senior Advocate Supreme Court for Respondent.

Date of hearing: 5th January, 2015.

2015 S C M R 655

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

MUHAMMAD FAIZ alias BHOORA---Petitioner

versus

The STATE and another---Respondents

Criminal Petition No. 11-L of 2015, decided on 28th January, 2015.

(On appeal from judgment dated 8-5-2014 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.3186-B of 2014)

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

----S. 265-C---Application by accused under S. 265-C, Cr.P.C., during pendency of trial---Trial, effect on---Mere pendency of application under S.265-C, Cr.P.C. did not amount to stay of trial---Trial Court should proceed with the trial irrespective of the pendency of such application, which may be decided on its own merits.

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

----S. 497---Bail, right of---Scope---Discretion of court---Accused abusing concession of bail---Effect---Right of an accused to the concession of bail in a cognizable offence was not absolute---Concession of bail was the discretion which a court exercised by transferring the custody of an accused from jail to the court, which discretion was normally withheld if the accused abused the concession by repeating the offence after the grant of bail---Prior criminal cases registered against an accused, prima facie, attracted withdrawal of such concession.

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

----S. 497(2)---Bail---Case-law cited by counsel for accused in support of bail---Relevance---Precedents in bail matters were of no help to a party, as it varied from case to case depending upon the facts of each case---Court had to examine as to whether accused had made out a case of further inquiry or not.

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

----Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Bail, refusal of---FIR against the accused-petitioner was promptly lodged in which specific role of firing at the deceased was attributed to him---Prosecution witnesses examined under S. 161, Cr.P.C. fully implicated the accused---No case of further inquiry had been made out---Bail petition was accordingly dismissed and leave was refused.

Kh. Muhammad Sharif, Advocate Supreme Court for Petitioner.

Muhammad Arif Awan, Advocate Supreme Court for the Complainant.

Ch. Muhammad Waheed Khan, Additional P.-G., Punjab and Liaqat Ali, S.-I. for the State.

Date of hearing: 28th January, 2015.

2015 S C M R 658

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Tariq Parvez, Mian Saqib Nisar, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

REFERENCE NO.1 OF 2011: In the matter of

(Reference by the President of the Islamic Republic of Pakistan under Article 186 of the Constitution to revisit the case of Zulfiqar Ali Bhutto reported as PLD 1979 SC 38 and 53)

Reference No.1 of 2011, decided on 17th January, 2012.

Supreme Court Rules, 1980---

----O. IV, R. 30---Contempt of Court Act (LXIV of 1976), S. 3---Constitution of Pakistan, Arts. 186 & 204---Reference to the Supreme Court under Art. 186 of the Constitution by the President of Pakistan to revisit the case of death sentence awarded to late Zulfiqar Ali Bhutto, former Prime Minister of Pakistan reported as PLD 1979 SC 38 & 53---Contempt of court---Attempt to ridicule the Supreme Court by counsel appearing for the President---Conduct unbecoming of an Advocate of the Supreme Court---Disciplinary action---Temporary suspension of licence to appear before the Supreme Court---Advocate Supreme Court who was appearing on behalf of the President in the Reference was issued with a contempt of court notice in respect of a press conference addressed by him---Said Advocate, after receipt of such notice, addressed the electronic media and through his utterance and gestures attempted to ridicule the Supreme Court---Attitude shown by Advocate in question after receipt of contempt notice, compelled the Supreme Court to issue him a notice in terms of O. IV, R.30 of the Supreme Court Rules, 1980 to explain as to why his name should not be removed from the Roll of the Advocates of the Supreme Court---Contention of Advocate in question was that he may be allowed time to engage a counsel---Validity---More than sufficient time was granted to the Advocate in question and as the present Bench was seized with one of the most important cases, i.e., the Reference sent by the President of Pakistan under Art. 186 of the Constitution concerning the death sentence awarded to late Zulfiqar Ali Bhutto, former Prime Minister of Pakistan, therefore, the Supreme Court had to proceed with the said case, as early as possible, without causing delay in any manner---Unless the question of notice, which had been issued to the Advocate in question under O. IV, R. 30 of the Supreme Court Rules, 1980, was decided, it would not be appropriate to proceed with the said Reference---Supreme Court granted Advocate in question time to engage a counsel and file his reply, but at the same time to ensure dignity and respect of the Court, his licence to appear before the Supreme Court was temporarily suspended---Supreme Court observed that good relationship between the Bench and the Bar depended upon mutual respect; that the Supreme Court, being the apex Court under the Constitution, deserved to be respected by all concerned, particularly the Advocates and the members of the legal fraternity to whom licences were issued for appearing before the Supreme Court; that if an institution like the Supreme Court was not respected and an attempt was made to lower its prestige in the eyes of the general public, then it would be very difficult to administer justice because Supreme Court was the court whose working/decisions sent a message down to the court of the Magistrate and the Civil Judge that they should administer justice without fear or favour, and that if the Supreme Court was maligned by anyone, then it would not be possible to maintain its dignity and status---Supreme Court directed the Attorney General to inform the President of Pakistan that the licence of the Advocate appearing on his behalf had temporarily been suspended, therefore, it would be appropriate if another counsel was appointed to address arguments in the Reference, which indeed was one of the most important cases in the history of the Supreme Court---Order accordingly.

Dr. Babar Awan, Senior Advocate Supreme Court on behalf of President.

Moulvi Anwarul Haq, Attorney-General for Pakistan and Dil Muhammad Khan Alizai, DAG, Amanullah Kanrani, AG, Balochistan, Asadullah Chamkani, AG, Khyber Pakhtunkhwa, Jawad Hassan, Additional AG, Punjab and Miran Muhammad Shah, Additional AG, Sindh on Court's Notice.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court, Abdul Latif Khan Afridi, Advocate Supreme Court, Ali Ahmad Kurd, Advocate Supreme Court and Yasin Azad, Advocate Supreme Court/President, SCBA as Amici Curiae.

Ahmad Raza Khan Kasuri, Senior Advocate Supreme Court for the Complainant in person.

Nemo in C.M.A. No. 1629 of 2011.

Nemo in C.M.A. No.1758 of 2011.

Date of hearing: 17th January, 2012.

2015 S C M R 705

[Supreme Court of Pakistan]

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

MUHAMMAD ANAYET GONDAL---Petitioner

versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another---Respondents

Civil Petition No. 2225 of 2014, decided on 14th January, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991). S. 5--- Constitution of Pakistan, Art. 18---Judicial officer--- Termination from service--- Appeal to Service Tribunal---Impleadment of party--- Scope--- Witness/informant of inquiry proceedings---Witness whose testimony was recorded during inquiry proceedings presented an application under O. I, R. 10, C.P.C. praying that he be impleaded as a party in the proceedings before the Punjab Subordinate Judiciary Service Tribunal---Validity---Testimony of such witness had already been recorded in the inquiry, and it may well be that he brought certain facts to the attention of the inquiry officer but that did not mean that he could become a party---Status of such witness remained that of an informant and witness only--- Disciplinary proceedings against judicial officer/ petitioner in the present case, which were between an employer and employee could not be turned into a contentious matter by an outsider, and this was particularly so considering that the petitioner stood terminated from service---Petitioner's rights under Art. 18 of the Constitution may also be involved in the present case---Order passed by Service Tribunal to the extent of impleadment of witness of inquiry proceedings as party, being not warranted, was set aside---Order accordingly.

Petitioner in person.

Razzaq A. Mirza, Additional A.-G., Mian Ashfaq Ahmed, Registrar Tribunal and Arif Hussain, Assistant, Tribunal Branch for Respondents.

Date of hearing: 14th January, 2015.

2015 S C M R 706

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD AMIN and another---Petitioners

versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No. 667-L and 702-L of 2013, decided on 10th February, 2015.

(On appeal against the judgment dated 19-3-2013 passed by the Lahore High Court, Lahore, in I.C.As. Nos. 182 and 183 of 2013)

Punjab Agricultural Produce Markets (General) Rules, 1979---

----R. 70(6)--- Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 2(h)(i), 16, 17 & 19---Constitution of Pakistan, Art. 199---Market Committee, employees of---Disciplinary proceedings---Order passed by Departmental authority---Constitutional petition filed by employee of Market Committee before the High Court against order of Departmental authority---Maintainability---Market Committees did not have any statutory service Rules to regulate terms and conditions of service of their employees---Section 19 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, clearly drew a (distinction) line between civil servants and the employees defined under S. 2(h)(i) of the said Act---Such employees who were covered under the definition of S. 2(h)(i) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if aggrieved by a final order passed by the Departmental authorities under S.16 or 17 of the said Act, could seek redressal of their grievances before the High Court---Employees of Market Committee were covered under the definition of employees provided under S. 2(h)(i) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, thus, they could invoke jurisdiction of High Court under Art. 199 of the Constitution for redressal of their grievance---Petition for leave to appeal was converted into appeal and allowed accordingly.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Contempt Proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioners (in both cases).

Shahid Mobeen, Additional A.-G. Punjab for Respondents.

Date of hearing: 10th February, 2015.

2015 S C M R 710

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

SAEED AHMED---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 688 of 2009, decided on 24th February, 2015.

(On appeal from the judgment dated 26-5-2009 in Criminal Appeal No. 35 of 2004 and M. R. No. 56 of 2006 passed by the Lahore High Court, Multan Bench, Multan)

(a) Medical jurisprudence---

----Strangulation, types of---Signs and consequences of strangulation on the victim.

'Medical Jurisprudence and Toxicology' by H.W:V. Cox, (Sixth Edition), published by the Law Book Company, Allahabad ref.

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

----Arts. 117 & 122---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Burden of proof---Accused failing to offer explanation about certain facts/circumstances incriminating him--- Effect--- Adverse inference against accused---With regard to vulnerable members of society, such as children, women and the infirm, who were living with the accused or were last in his company (before their death), the accused ought to offer some explanation as to what happened to them---Where instead of offering explanation the accused remained silent or offered a false explanation he cast a shadow upon himself, but this did not mean that the burden of proof had shifted onto the accused, as it was for the prosecution to prove its case---With respect to the helpless or the weak that required protection or care it would not be sufficient for the accused to stay silent in circumstances which tended to incriminate him, and if he elected to do so he lightened the burden of the prosecution.

Smith v. Emperor AIR 1918 Madras 111; re: Naina Mohamed AIR 1960 Madras 218; Deonandan Mishra v. The State of Bihar AIR 1955 SC 801; State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588; State of Karnataka v. Khaja Hussain 1982 (3) SCC 456; Ram Gulam Chaudhary v. State of Bihar 2001 (8) SCC 311; State of Rajasthan v. Kashi Ram AIR 2007 SC 144; State of Rajasthan v. Jaggu Ram AIR 2008 SC 982; Muhammad Akram v. State 2003 SCMR 855; Arshad Mehmood v. State 2005 SCMR 1524 and Roheeda v. Khan Bahadur 1992 SCMR 1036 ref.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 122---Qatl-i-amd---Reappraisal of evidence---Death sentence reduced to imprisonment for life---Motive not proved---Accused failing to offer explanation about certain facts/circumstances incriminating him---Effect---Adverse inference against accused---Unnatural conduct of accused---Accused was convicted under S. 302(b), P.P.C. for killing his wife by strangulation and awarded death sentence by Trial Court---High Court maintained conviction of accused but reduced his sentence of death into imprisonment for life on the basis that motive for the incident was not proved---Validity---Medical evidence showed that deceased was strangled to death, which ruled out the possibility of a natural death or of suicide---Accused absconded after the incident without explanation and was arrested after a period of about two months of his wife's death---Accused did not participate in the last rites of his deceased-wife---Accused neither informed the police about his wife's murder, nor took her to the hospital---Accused also elected not to give evidence on oath under S. 340(2), Cr.P.C.---Article 122 of the Qanun-e-Shahadat, 1984 stipulated that if a particular fact was especially within the knowledge of any person the burden of proving that fact was upon him---Prosecution, in the present, case, had established its case against the accused; two eye-witnesses had deposed against him and the medical evidence confirmed strangulation of the deceased--- Accused did not attend the last rites of his wife who had died whilst residing with him, he also did not inform the police nor took his wife to a hospital and disappeared for two months---Such circumstances corroborated the prosecution case in the absence of the accused offering a reasonable explanation for his unnatural conduct---Alleged motive for the murder was that accused wanted to contract another marriage which his deceased-wife opposed---However, such motive did not stand to reason as the accused could have divorced his wife if she was not giving him permission to marry again---Fact that deceased and the accused had not been married for too long also undermined the motive---Moreover, nothing was brought on record to show as to whom the accused wanted to marry or any other material in such regard---Prosecution's narrative with respect to motive therefore was rightly disbelieved by the High Court, as a consequence of which it reduced the death sentence of the accused to life imprisonment---Appeal was dismissed accordingly.

Smith v. Emperor AIR 1918 Madras 111; re: Naina Mohamed AIR 1960 Madras 218; Deonandan Mishra v. The State of Bihar AIR 1955 SC 801; State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588; State of Karnataka v. Khaja Hussain 1982 (3) SCC 456; Ram Gulam Chaudhary v. State of Bihar 2001 (8) SCC 311; State of Rajasthan v. Kashi Ram AIR 2007 SC 144; State of Rajasthan v. Jaggu Ram AIR 2008 SC 982; Muhammad Akram v. State 2003 SCMR 855; Arshad Mehmood v. State 2005 SCMR 1524 and Roheeda v. Khan Bahadur 1992 SCMR 1036 ref.

Rizwan Ejaz, Advocate Supreme Court for Appellant (appointed by Court).

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

Date of hearing: 14th January, 2015.

2015 S C M R 723

[Supreme Court of Pakistan]

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

Dr. AZIM-UR-RAHIM KHAN MEO---Petitioner

versus

PROVINCE OF SINDH through Chief Secretary and 9 others---Respondents

Civil Petition No.769-K of 2011, decided on 13th February, 2015.

(On appeal from the judgment dated 17-6-2011 of the Sindh Service Tribunal at Karachi passed in Service Appeal No.116 of 2009)

Sindh Public Service Commission (Functions) Rules, 1990---

----Rr. 3 & 5 [since omitted]---Sindh Civil Servants Act (XIV of 1973), S.2(1)(a)--- Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994), S. 2(2)--- Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 10---West Pakistan Secretariat (Section Officers) Service Rules, 1962---Constitution of Pakistan, Art. 212(3)---Inter se seniority---Dispute over seniority list---Ad hoc appointments---Scope---Section Officers (BS-17) directly appointed by Provincial Chief Minister under R. 5 of Sindh Public Service Commission (Functions) Rules, 1990, without reference to the Sindh Public Service Commission--- Status of--- Regular appointments and not ad hoc appointments---Petitioner was appointed as section officer in BPS-17 through the Sindh Public Service Commission ("Commission") in the year 1992---Respondents were directly appointed to such posts in the year 1991 by the Provincial Chief Minister without reference to the Commission through the purported exercise of powers under R. 5 of the Sindh Public Service Commission (Functions) Rules, 1990 (as it then was)---Contentions of petitioner were that appointments of respondents, could not be deemed to be regular for the purposes of determination of seniority and ought to be treated at par with ad hoc appointments requiring regularization; that the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994, was enacted on 28-7-1994, and it was only upon the regularization in terms of the said Act that the respondents achieved the status of regular employees for the purposes of determining their seniority; that, in such circumstances, the respondents could not be held to be senior to the petitioner despite having been appointed in 1991 i.e. prior to the petitioner---Validity---Section 2(1)(a) of the Sindh Civil Servants Act, 1973, provided that ad hoc appointments were made pending recruitments in accordance with the prescribed procedure implying that such posts were subject to a given procedure which in the present case of appointments in BPS-17 by virtue of R. 3 of the Sindh Public Service Commission (Functions) Rules, 1990 would be through the Public Service Commission---Ad hoc appointments were not made with reference to the posts, which were permanently taken out of the purview of the given procedure, which in the present case would be through the Public Service Commission---Appointments by the Chief Minister under R. 5 of the Sindh Public Service Commission (Functions) Rules, 1990, thus, did not come within the ambit of "ad hoc appointments"---Provisions of Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 were not applicable to the case of the respondents as their appointments were not ad hoc appointments, and neither said Act affected their status as civil servants in any way---Relevant notification of appointment of respondents also clearly denoted that such appointments had been made on regular basis---Respondents for the purposes of seniority must be deemed to have been regularly appointed in the year 1991 on regular basis---Since the respondents were initially appointed in the year 1991 prior to the appointment of the petitioner in the year 1992, therefore, their seniority must be reckoned on the basis of such appointments in terms of R. 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, as well as the West Pakistan Secretariat (Section Officers) Service Rules, 1962---Respondents having been initially appointed on regular basis prior to the petitioner had been correctly held to be senior to the petitioner in the seniority list---Petition for leave to appeal was dismissed accordingly.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 distinguished.

M. Aqil Awan, Senior Advocate Supreme Court for Petitioner.

Shafi Muhammad Chandio, Additional A.-G. Sindh for Respondents Nos.1 and 2.

Yawar Farooqui, Advocate Supreme Court for Respondents Nos.4 and 5.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.6 to 9.

Date of hearing: 9th December, 2014.

2015 S C M R 731

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Qazi Faez Isa, JJ

SHAUKAT MASIH---Petitioner

versus

Mst. FARHAT PARKASH and others---Respondents

Criminal Petition No.911-L of 2014, decided on 19th February, 2015.

(Against the order dated 18-8-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.1614-H of 2014)

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VII of 1890), Ss. 7 & 10---Civil Procedure Code (V of 1908), O. IX, R. 13---Constitution of Pakistan, Art. 187(1)---Custody of minor---Ex parte proceedings---Guardianship certificate---Power of Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in a case involving custody of minor---Scope---Paternal grandfather of the minor obtained guardianship certificate through ex parte proceedings without disclosing to the court that mother of minor was still alive---Mother of minor, who was unaware of the guardianship certificate, filed a habeas corpus petition before the High Court claiming custody of the minor---Habeas corpus petition was allowed by the High Court despite the existence of guardianship certificate in favour of paternal grandfather on the ground that said certificate had not been obtained in a bona fide manner and, thus, by ignoring the guardianship certificate the High Court ordered transfer of the custody of the minor from the paternal grandfather to the mother---Legality---Mother of minor had not filed any appeal against the order passed by the Guardian Judge nor had any application so far been filed by her before the Guardian Judge seeking recalling of the ex parte order and reconsideration of the matter on its merits---By way of order passed by the High Court a minor had been given in the custody of her real mother and even if there were some questions regarding proper exercise of jurisdiction by the High Court in the matter still the Supreme Court would not like the minor to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody---Under Art. 187(1) of the Constitution, the Supreme Court could issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it---Supreme Court by invoking its jurisdiction under Art. 187(1) of the Constitution in the present case set aside the order passed by the Guardian Judge, and cancelled the Guardianship certificate and directed the Guardian Judge to consider the application for guardianship certificate submitted by the paternal grandfather as a pending application, and to hear all the parties concerned, including the mother of the minor, and then decide the matter of custody afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties---Supreme Court further directed that during the interregnum the custody of the minor shall remain with the mother and the Guardian Judge shall attend to the request, if any, made regarding visitation rights---Petition was disposed of accordingly.

Liaqat Ali Butt, Advocate Supreme Court for Petitioner.

Sardar Badar Munir, Advocate Supreme Court for Respondent No.1 and Minor Minahil Nadeem present in person.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Fiaz Ahmed, Inspector, Police Station Farooq Town, Sahiwal for the State.

Date of hearing: 19th February, 2015.

2015 S C M R 735

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

KHUDA BAKHSH---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 4-Q of 2012, decided on 15th January, 2015.

(On appeal from the judgment dated 21-10-2010 in Criminal (CNS) Appeal No.257 of 2009 passed by the High Court of Balochistan Quetta)

Per Qazi Faez Isa, J; Dost Muhammad Khan and Ijaz Ahmed Chaudhry, JJ, agreeing.

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

----Ss. 9 (b) & (c)---Possession of narcotics---Reappraisal of evidence---Sentence, reduction in---Separate samples taken from each packet of narcotic not sent for examination---Only one sealed sample sent for examination---Effect---Type of narcotic recovered, significance of---"Charas" [baked cannabinoids] as a less harmful narcotic---Accused was allegedly transporting 170 kilograms of cannabis (charas), which was hidden in secret compartments in the boot of a car---Trial Court convicted the accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life with a further direction to pay a fine of one hundred thousand rupees---Appeal filed by accused against his conviction and sentence was dismissed by the High Court---Validity---Accused did not deny driving the vehicle from which narcotics were recovered and admitted that it was stopped at a check post, but stated that the narcotics were foisted upon him and in such regard produced the affidavit of a certain person---Accused, however, did not seek the production of said person as a defence witness nor recorded his own statement on oath---Prosecution on its part had established the recovery of the narcotics from the vehicle being driven by the accused---FIR was lodged within a reasonable period after a thorough search of the vehicle had been conducted--- No reason existed for the prosecution witnesses to falsely implicate the accused, who was not previously known to them---Report of Forensic Science Laboratory also confirmed that substance sent as samples was "charas (baked cannabinoids)"---Whilst it had been established that the seized substance sent for chemical examination was charas one could not presume that the entire quantity of the material seized from accused was charas too, since separate samples taken from each packet were not so sent for examination---Forensic Science Laboratory report stated that only one "sealed parcel" was received by it, therefore, the contention of the prosecution that separate samples were removed from each packet of the seized material, was not borne out from the record---Two kilograms of narcotic were sent as sample together in one sealed parcel, therefore, the accused could at best be held liable for the said two kilograms---Charas unlike other narcotics such as heroin was less harmful and dangerous, and keeping in mind the quantity of two kilograms and the fact that it was the accused's first offence, the sentence of imprisonment for life awarded to him appeared to be excessive---Section 9(c) of Control of Narcotic Substances Act, 1997, also provides for imprisonment for a term of up to fourteen years, and if said provision was read with S. 9(b) of the said Act (which provided a maximum imprisonment term of seven years in respect of a quantity of up to one kilogram) then the sentence for a quantity of two kilograms of charas could range from imprisonment of over seven years and up to fourteen years---Supreme Court maintained conviction of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, but reduced his period of rigorous imprisonment to eight years with a fine of one hundred thousand rupees---Appeal was partly allowed accordingly with the observation that the conduct of the prosecution in the present case, in so far as it did not send to the Chemical Examiner separately sealed samples from the different seized packets, was to be deprecated.

Ameer Zeb v. State PLD 2012 SC 380 ref.

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

----S. 9---Possession of narcotics---Sentence, quantum of---Scope---Quantity of recovered narcotic---Quantum of sentence in narcotic substance cases depended upon the quantity of the recovered substance---Section 9 of the Control of Narcotic Substances Act, 1997, provided for progressively greater punishment depending on the quantity of narcotics.

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

----Ss. 9(b) & (c)---Possession of narcotic---Sentence, quantum of---Scope---Quantity of recovered narcotic---Perusal of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, made it clear that for a quantity exceeding one kilogram an imprisonment for a period exceeding seven years was mandated, and if it exceeded ten kilograms it could not be less than imprisonment for life---Section 9(c) of Control of Narcotic Substances Act, 1997, also provided for imprisonment "which may extend to fourteen years", which would mean that the period of imprisonment in respect of narcotics weighing more than one kilogram, but less than ten kilograms, should be for a period greater than seven years to anything less than fourteen years---Sentence of imprisonment for life or death was attracted when the threshold of ten kilograms (proviso to S. 9 of Control of Narcotic Substances Act, 1997) was reached.

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

----Ss. 9(b) & (c)---Possession of narcotic---Sentence, quantum of---Scope---Nature of narcotic recovered, significance of---When determining the quantum of sentence it was appropriate to consider the nature of the narcotic substance, since some narcotics were more dangerous and harmful than others---Although the Control of Narcotic Substances Act, 1997, did not explicitly state that the type of narcotic substance determined the quantum of sentence, however, the fact that the said Act provided for a range of sentences implied as such.

Per Ijaz Ahmed Chaudhry, J; agreeing with Qazi Faez Isa, J, with his own opinion

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

----S. 9--- Possession of narcotic--- Sentence, quantum of--- Scope---Court had the discretion to award any sentence, which it deemed fit in the facts and circumstances of a certain case.

Abdur Rasheed Awan, Advocate Supreme Court for Appellant.

Tahir Iqbal Khattak, Additional P.-G. Balochistan.

Date of hearing: 15th January, 2015.

2015 S C M R 790

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION, LAHORE through Commissioner and another---Appellants

versus

Messrs M. H. CHALLENGE INDUSTRIES, SIALKOT and others---Respondents

Civil Appeals Nos. 56-L and 57-L of 2009, decided on 24th March, 2015.

(On appeal against the judgment dated 9-10-2002 passed in C.R.P. No.3104 of 2006 and order dated 6-6-2002 in Writ Petition No.8755 of 2002, by the Lahore High Court Lahore respectively)

(a) Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 1(3), 20(1) & 21---Social security contribution, payment of---Registered partnership firm---Notice sent to registered partnership demanding production of record and payment of social security contribution---Legality---Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution---Validity---Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution---Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees' Social Security Ordinance, 1965---Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully---Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.

(b) Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 2(11) & 20(1)---Social security contribution, payment of---"Establishment", interpretation of---Scope---Charitable educational institution/Educational Trust---Liable to pay social security contribution---Educational institutions functioning on charitable basis were not to be placed on any higher pedestal to exclude them from the applicability of the definition of an "Establishment" as defined under the Provincial Employees' Social Security Ordinance, 1965---Charitable nature of an educational institution had nothing to do with the additional benefits offered/extended under the Provincial Employees' Social Security Ordinance, 1965, to its employees---Proverb 'charity begins at home' would be squarely applicable to such charitable institutions to justify a fair conclusion that when such charitable institutions were extending/facilitating education in the country on charitable basis, then why should they not contribute under the Provincial Employees' Social Security Ordinance, 1965, to extend their quality of charity and benevolence in favour of their own employees---Appeal was allowed accordingly.

The Citizens Foundation and another v. Director SESSI and others 2010 SCMR 1659 ref.

Muhammad Shuja Baba, Advocate Supreme Court and A. H. Masood, Advocate-on-Record for Appellants (in both cases).

Manzoor Hussain Butt, Advocate Supreme Court for Respondent No.1 (in C.A. No. 56-L of 2009).

Nemo for Respondents (in C.A. No. 57-L of 2009).

Date of hearing: 11th February, 2015.

2015 S C M R 795

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

FAZLI HAKEEM and another---Petitioners

versus

SECRETARY STATE AND FRONTIER REGIONS DIVISION ISLAMABAD and others---Respondents

Civil Petitions Nos. 418 and 707 of 2012, decided on 8th February, 2013.

(On appeal against the judgment dated 19-1-2012 passed by Federal Service Tribunal, Islamabad in Appeals Nos.766(P)CS/2010 and 814(P)CS/2010)

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

----S. 5(1)---Limitation Act (IX of 1908), S. 3---Constitution of Pakistan, Art. 185(3)---Federal Service Tribunal, order of--- Order not passed in accordance with law---Void order, limitation against---Scope---Promotion---Temporary employee promoted in preference to regular employees against the law---Contention of respondent that present petition should be dismissed on the grounds of limitation---Validity---Respondent was a temporary contract employee and he was working as such at the time he was promoted---Question as to how could the respondent rank senior and how he could be given preference over the employees who were regularized much earlier were questions which had not been answered either in the impugned judgment of the Service Tribunal or by the respondent---Present case was not a case where the matter could be set at rest by invoking the provisions regulating limitation---Courts of law were not supposed to perpetuate what was unjust and unfair by exploring explanation for an act which was prima facie against law and thus void---Courts should rather explore ways and means for undoing what was unfair and unjust---Even where the question of limitation, if at all, created any impediment in the fair adjudication of the case, it had to be looked from such angle of vision---Controversy urged before the Service Tribunal in the present case had not been considered and decided in its correct perspective---Remand of the present case was inevitable---Supreme Court, thus, converted petition for leave to appeal into an appeal, set aside the impugned judgment of Service Tribunal and sent the case back to the Service Tribunal for decision afresh in accordance with law.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

(b) Administration of justice---

----Person/institution exercising executive, judicial or quasi-judicial power---Order of---Order not passed in accordance with law---Non est order--- Scope---Repository of executive, judicial or quasi-judicial power was required to act in accordance with law---For the very condition for the conferment of such power was that such repository had to act in accordance with law---If and when such repository would go wrong in law it would go outside its jurisdiction, and order thus passed would be non est---Such order could not be protected simply because the repository of such power, had the power to pass such order.

"Discipline of law" by Lord Denning pages 74 and 76 ref.

Abdur Rehman Siddiqui, Advocate Supreme Court for Petitioners (in C.P. 418 of 2012).

Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. 707 of 2012).

Ejaz Anwar, Advocate Supreme Court for Respondents Nos.2, 3 and 4 (in C.P. 418 of 2012).

M.S. Khattak, Advocate-on-Record for Respondents Nos.1 to 4 and 6 (in C.P. 707 of 2012).

Syed Arshad Hussain Shah, Additional A.-G. Khyber Pakhtunkhwa for Khyber Pakhtunkhwa on Court's Notice.

Date of hearing: 8th February, 2013.

2015 S C M R 799

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Dost Muhammad Khan, JJ

IQBAL AHMED---Appellant

versus

MANAGING DIRECTOR PROVINCIAL URBAN DEVELOPMENT BOARD, N.-W.F.P. PESHAWAR and others---Respondents

Civil Appeal No.441 of 2013, decided on 23rd February, 2015.

(On appeal against the judgment dated 22-1-2013 passed by Peshawar High Court, Bannu Bench in Criminal Revision No.43-B of 2004)

(a) Allotment Regulations Bannu Township Scheme---

----Chap. II, Para. 9---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Allotment of plot by Provincial Urban Development Board---Cancellation of allotment---Failure to deposit instalments---Plaintiff/appellant was allotted land by the Provincial Urban Development Board for construction of a private school---Cost of land and payment schedule of instalments were also provided to the plaintiff---Plaintiff deposited an advance amount, but thereafter failed to deposit the instalments despite repeated notices---Plaintiff in his suit did not specifically question the cancellation of his plot but sought a declaration that he be allowed to deposit the price of the plot in question---Plaintiff claimed that he was aggrieved of the value of the plot, but the question was as to why he kept mum for a period of more than one year before approaching the concerned authority for reduction of price of the plot---Plaintiff, in the meantime, neither approached the concerned authority for extending the dates of instalments nor paid all instalments, even under protest or otherwise---Even otherwise, having deposited the advance amount for the plot, the plaintiff had in-fact agreed with the price of plot in question---Besides the plaintiff by not establishing the school in time (for which the plot was allotted) had also deprived the people of the vicinity---Suit of the plaintiff had been rightly dismissed by the High Court---Appeal was dismissed accordingly.

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

----S. 115--- Revisional jurisdiction of court--- Scope--- Scope of revisional jurisdiction could be appropriately invoked where subordinate forums had committed jurisdictional error or had misread evidence or had ignored material aspects affecting very root of a case suggesting perversity---Scope of revisional power (of the court) though hedged by conditions, was nevertheless vast and corresponded to a remedy of certiorari.

Rozi Khan v. Nasir 1997 SCMR 1849 and Muhammad Mian v. Shamimullah 1995 SCMR 69 ref.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court along with appellant in person.

Syed Fakhruddin Shah, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 23rd February, 2015.

2015 S C M R 804

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Qazi Faez Isa, JJ

MUHAMMAD ARIF---Petitioner

versus

SAIMA NOREEN and another---Respondents

Civil Petitions Nos. 1421 and 1479 of 2014, decided on 11th February, 2015.

(On appeal against the judgment dated 11-6-2014 passed by Peshawar High Court, Abbottabad Bench in W.Ps. Nos.504-A of 2011 and 652-A of 2012)

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(viii)---West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched.---Dissolution of marriage---Grounds---Cruelty by husband---Proof---Cruelty by husband not proved---Effect---Decree for dissolution of marriage on basis of cruelty converted into khula---Wife filed a suit for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty---Family Court found that wife had failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had become strained and there seemed no possibility of reunion, and if they were constrained to live together, they may transgress the limits of Almighty Allah and their union may not last longer, hence, their separation had become inevitable---Decree passed by Family Court was upheld both by the Appellate Court as well as by the High Court---Validity---Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of Muslim Marriages Act, 1939---Only way out and the logical conclusion was that the marriage should have been dissolved on the basis of khula in which event the wife would have to forego the dower amount---Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of khula only, and directed that mutation for the plot given by the husband to his wife as dower would now revert back to the husband---Order accordingly.

Muhammad Bashir Mughal, Advocate Supreme Court for Petitioner.

M. Saliheen Mughal, Advocate Supreme Court Respondent No.1. along with M. Ashraf, father of Respondent No.1.

Date of hearing: 11th February, 2015.

2015 S C M R 808

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

Mst. NUSRAT BIBI---Appellant

versus

NAZIR AKHTAR---Respondent

Civil Appeal No. 784 of 2012, decided on 2nd March, 2015.

(On appeal against the judgment dated 17-5-2012 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No. 221 of 2009)

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

----S. 13(3)---Suit for pre-emption---Talb-i- Ishhad, notice of---Proof---Two truthful witnesses--- Non-production of truthful attesting witnesses---Effect---Two truthful attesting witnesses were required to be produced by the party in order to prove Talb-i-Ishhad as mandated by S. 13(3) of the Punjab Pre-emption Act, 1991---Non-production of one of the witnesses of the notice of Talb-i-Ishhad by the party asserting right of pre-emption would lead to the conclusion that it had failed to prove Talb-i-Ishhad---One of the attesting witnesses of Talb-i-Ishhad, in the present case, appeared in the witness-box, but he did not support the case of the pre-emptor, whereas the second attesting witness of Talb-i-Ishhad was not produced by the pre-emptor for which no plausible explanation had been offered---Pre-emptor had, thus, failed to produce two truthful attesting witnesses to prove Talb-i-Ishhad, in terms of S.13(3) of the Punjab Pre-emption Act, 1991---Suit for pre-emption was dismissed---Appeal was allowed accordingly.

Dawa Khan v. Muhammad Tayyab 2013 SCMR 1113 and Muhammad Abaidullah v. Ijaz Ahmed Civil Appeal No.543 of 2008 ref.

Sardar Muhammad Aslam, Advocate Supreme Court for Appellant.

Nemo for Respondent.

Date of hearing: 2nd March, 2015.

2015 S C M R 810

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

Syed MAHMOOD AKHTAR NAQVI---Applicant

versus

GOVERNMENT OF SINDH and others---Respondents

C.M.A. No.592-K of 2013 in S.M.C. No.16 of 2011, C.M.A. No.423-K of 2014, Criminal O. P. 24-K of 2014, C.M.A. No.634-K of 2014, C.M.A. No.359-K of 2014, Criminal O. P. Nos.25-K and 26-K of 2014, C.M.A. No.360-K, 373-K, 382-K, 389-K and 394-K of 2014, decided on 26th March, 2015.

((For taking action against the Government of Sindh through IGP, Sindh on entering into contract for purchase of the APC Armed Personnel Carrier at an exorbitant rate without calling open tender in deviation of Sindh Public Procurement Rules)

Supreme Court Rules, 1980---

----O. IV, Rr. 6, 15 & 30---Advocate Supreme Court---Misconduct---Conduct unbecoming of an advocate---Appearance in a case without instructions or 'vakalatnama' of an Advocate-on-Record (AOR)---Interrupting court proceedings---Using loud and unbecoming tone in court---Suspension of practicing licence as an advocate of Supreme Court and notice to show cause as to why he should not be removed from practice as an Advocate of the Supreme Court---No authorization existed in favour of the Advocate Supreme Court in question, authorizing him to appear in the present case, and nor was there any 'vakalatnama' of an Advocate-on-Record (AOR) on behalf of the Provincial Inspector General of Police, whom the advocate in question was purportedly representing---Advocate in question had been appearing in the present case for the last twelve dates of hearing, and considering that he had no authorization from any Advocate on Record, it was apparent that O. IV, R. 6 of the Supreme Court Rules, 1980 had been violated---Instead of acknowledging such shortcoming, advocate in question conducted himself in a manner which indicated that he had been guilty of misconduct and conduct which was unbecoming of an advocate---Advocate in question was asked to submit an explanation as to how without instructions or vakalatnama of an Advocate-on-Record (AOR), he had been appearing in the present case, but instead of submitting his explanation, he raised his voice, interrupted court proceedings and launched into a harangue and tirade---Such sort of behaviour was not conducive to the proper administration of justice and was also prohibited by the Legal Practitioners and Bar Councils Act, 1973---Persistent objectionable behaviour of advocate in question provided good cause for taking strict action against him---Record of certain other cases showed that advocate in question had made it a habit to indulge in misconduct or conduct unbecoming of an advocate---Persistent acts on the part of advocate in question displayed a pattern and a mindset which was not at all conducive to the honour and dignity of the Court and the Bar---Fair, honest and ethical Bar was essential for dispensation of justice---Supreme Court observed that it had shown a lot of patience in dealing with the advocate in question but he had failed to uphold and maintain the dignity of his profession or the Court---Supreme Court thus suspended the practicing license of advocate in question in order to maintain the honour, respect and dignity of the Bar and the Court, and issued him a notice to show cause as to why he should not be removed from practice as an Advocate of the Supreme Court---Supreme Court directed the Provincial Inspector General of Police, to file copies of all relevant documents showing deliberations and justification for engaging a private counsel (advocate in question) and paying a large sum to him as professional fee instead of defending through the office of the Provincial Advocate General.

Ch. Muhammad Ashraf Gujjar v. Riaz Hussain 2013 SCMR 161; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Arslan Iftikhar v. Riaz Hussain PLD 2012 SC 903 and Hamid Mir v. Federation of Pakistan Constitutional Petition No.105 of 2012 ref.

Nemo for Applicant.

Irfan Qadir, Advocate Supreme Court on Court's Notice.

Meeran Muhammad Shah, Additional, A.-G. Sindh for Government of Sindh.

Farooq H. Naek, Senior Advocate Supreme Court for Chief Secretary.

Ghulam Haider Jamali, IGP and Dr. Mazhar Ali Shah, AIG (Legal) on behalf of IGP, Sindh.

Nemo for HIT.

Date of hearing: 26th March, 2015.

2015 S C M R 821

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

MUHAMMAD ANAYET GONDAL---Petitioner

versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another---Respondents

Constitutional Petition No. 172 of 2015, decided on 5th March, 2015.

(On appeal from the judgment of the Punjab Subordinate Judiciary Service Tribunal, Lahore, dated 16-1-2015 passed in Service Appeal No.11 of 2012)

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

----S. 6(2)---Constitution of Pakistan, Art. 185(3)---Punjab Subordinate Judiciary Service Tribunal ("Tribunal"), powers of---Scope---Appeal filed before the Tribunal---Tribunal sending the case back to the Departmental Authority for decision afresh after de novo enquiry---Legality---Petitioner contended that the Tribunal hearing an appeal had limited powers in view of the provisions contained in S. 6 of the Punjab Subordinate Judicial Service Tribunal Act, 1991, to confirm, set aside, vary or modify the order appealed against, but it could not send the case back to the Departmental Authority for decision afresh after de novo enquiry---Validity---Section 6(2) of Punjab Subordinate Judiciary Service Tribunal Act, 1991, clearly provided that the Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil court and shall have the same powers as were vested in such court under the Code of Civil Procedure --- Where the legislature in its wisdom had conferred on the Tribunal all the powers as were vested in the civil court, the contention of the petitioner was not correct--- No interference was required in the order passed by the Tribunal--- Petition for leave to appeal was dismissed accordingly and leave was refused---Abdul Khaliq, Primary Teacher, Primary School Rajkot, Tehsil and District Muzaffarabad v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706 per incuram.

Abdul Khaliq, Primary Teacher, Primary School Rajkot, Tehsil and District Muzaffarabad v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706 per incuram.

(b) Jurisdiction---

----Court/Tribunal---Implied powers---Where a statute conferred a jurisdiction on a court or tribunal it also conferred by implication the powers which were reasonably incidental and ancillary to effective exercise of jurisdiction.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th March, 2015.

2015 S C M R 823

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Ejaz Afzal Khan and Umar Ata Bandial, JJ

Ch. AHMED NAWAZ---Appellant

versus

PROVINCE OF PUNJAB through Land Acquisition Collector, Jhelum and others---Respondents

Civil Appeal No. 698 of 2013, decided on 26th February, 2015.

(Against the order dated 6-5-2013 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in E.F.A. No.7 of 2012)

Land Acquisition Act (I of 1894)---

----S. 34---Civil Procedure Code (V of 1908), S. 51 & O. XXI, R. 10---Acquisition of land---Compensation---Compound interest, payment of---Decision of Referee Judge not challenged either in review or appeal by land owner---Effect---Finality of decree---Executing court, powers of---Scope---Appellant's land had been acquired, and being dissatisfied with the compensation awarded by the Collector, he filed a reference before the Referee Judge, who enhanced the compensation by determining the market value---Referee Judge in his decision did not allow compound interest in terms of S. 34 of the Land Acquisition Act, 1894---Subsequently during execution proceedings the appellant sought the compound interest in the garb of recalculation of the amount due to him, which request was allowed by the Executing Court---High Court, on appeal, set aside the order of the Executing Court---Validity---No decree ever was passed in favour of appellant by the Referee Judge in terms of S. 34 of the Land Acquisition Act, 1894, granting him compound interest and such decision was not challenged by the appellant either in review or appeal, therefore such decree attained finality---While executing the decree and ascertaining the exact amount payable thereunder in the process of calculation, the Executing Court could not grant a relief to the decree-holder which was never awarded to him under the decree---Executing Court in the facts and circumstances of the present case could not modify the decree and go beyond it---Appeal was dismissed accordingly.

Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361 distinguished.

Appellant in person.

Mudassir Khalid Abbasi, Assistant A.-G. for Respondents.

Date of hearing: 26th February, 2015.

2015 S C M R 825

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

NASREEN BIBI---Petitioner

versus

FARRUKH SHAHZAD and another---Respondents

Criminal Petition No. 489 of 2014, decided on 3rd March, 2015.

(On appeal against the judgment dated 11-7-2014 passed by the Peshawar High Court, Abbottabad Bench in Cr. M/BCA No. 279-A of 2014)

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 376, 506 & 34---Constitution of Pakistan, Art. 185(3)---Rape, criminal intimidation, common intention---Bail cancellation of---Complainant-victim was a virgin lady and according to medical evidence she was subjected to sexual intercourse---Victim had got recorded the FIR on the same day but with a delay, however, such delay was of no help to the accused as in such like cases delay in lodging the FIR was immaterial as people naturally avoided rushing to the police because of family honour---No previous enmity existed between the parties and it was against common sense that the complainant would have concocted a story which could ruin her life---Prima facie there was sufficient material available to connect the accused with the commission of the offence---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused was cancelled.

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

----Ss. 173, 497(5) & Sched. II, Column No. 8---Penal Code (XLV of 1860), S. 376---Rape---Post-arrest bail filed before the Judicial Magistrate---Magistrate allowing bail to accused for an offence under S. 376, P.P.C.---Legality---Offence under S. 376, P.P.C., was punishable with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years, and according to Schedule-II, Column No. 8, Cr.P.C., said offence was triable by a Court of Session---For such like cases, only the report under S. 173, Cr.P.C. had to be submitted before the Magistrate---Magistrate had nothing to do with the merits of the case and was not competent to grant bail or pass any other order which could be passed by the Trial Court---Only function of the Magistrate after the receipt of report under S. 173, Cr.P.C. was to transmit the challan to the Court of competent jurisdiction/Sessions Court---Bail granting order passed by the Judicial Magistrate in the present case was without jurisdiction---Appeal was allowed accordingly and bail allowed to accused was cancelled.

Khalid Rehman Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record along with Petitioner in person.

Sardar Aman Khan, Advocate Supreme Court along with Respondent No.1 in person.

Zahid Yousaf, Advocate Supreme Court on behalf of A.-G., Khyber Pakhtunkhwa.

Date of hearing: 3rd March, 2015.

2015 S C M R 828

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

ADIL TIWANA and others---Petitioners/Appellants

versus

SHAUKAT ULLAH KHAN BANGASH---Respondent

Civil Petition No. 1634 of 2014 and Civil Appeal No. 786 of 2013, decided on 16th March, 2015.

(Against the judgments of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 23-7-2014 in C.M. No. 702-C of 2013 in R.F.A. No. 17 of 2006 and dated 4-4-2013 passed in R.F.A. No. 17 of 2006)

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

----S. 12---Suit for specific performance of agreement to sell---Inequitable conduct of plaintiff---Failure of plaintiff to pay balance consideration before agreed time---Effect---Wording of the agreement to sell showed that a specific date for making payment of the balance (consideration) was mentioned, which date was the absolute limit---Said specific date was indeed the essence being the outer limit of time within which payment was to be made---When the suit for specific performance was filed by the plaintiff, he did not make payment of the balance amount or seek deposit of the same in court---Instead the court directed the plaintiff to deposit Defence Saving Certificates of a certain value in court within one month, however the same was not done---Plaintiff filed an application seeking further time to do the needful and further indulgence was shown to the plaintiff who was allowed further time to deposit the Defence Saving Certificates---Since the plaintiff again failed to deposit the Certificates, he applied praying that he be allowed to deposit WAPDA bonds of the equivalent face value---Once again, a great deal of indulgence was shown to the plaintiff and he was allowed further time to deposit the WAPDA bonds---Finally the plaintiff did deposit WAPDA bonds in court, however 8 years after their deposit, the plaintiff applied for their release on the undertaking that he would submit a bank guarantee---WAPDA bonds were released, however, the bank guarantee which was furnished expired subsequently and was not renewed or extended---As such after the expiry of the bank guarantee no cash was deposited with the court nor were any bonds/government securities deposited nor was there a bank guarantee as undertaken by the plaintiff himself---Fact remained that the plaintiff, who was obliged to make payment of the balance sum by a specific date failed to fulfil such material obligation---Plaintiff failed to make payment or comply with court orders inspite of the extreme indulgence shown to him by the court---Granting discretionary relief to plaintiff in such circumstances would be highly unfair and inequitable---Suit filed by the plaintiff seeking discretionary equitable relief of specific performance had to be dismissed---Order accordingly.

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

----Ss. 12 & 22---Specific performance, remedy of---Discretionary remedy---Remedy by way of specific performance was equitable and it was not obligatory on the court to grant such a relief merely because it was lawful to do so.

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner/Appellant.

Nemo for Respondent.

Date of hearing: 16th March, 2015.

2015 S C M R 832

[Supreme Court of Pakistan]

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

CANTONMENT BOARD, RAWALPINDI through Executive Officer and others---Appellants

versus

Lt. Col. (Retd.) ALLAH DAD KHAN and another---Respondents

Civil Appeal No. 37 of 2013, decided on 10th March, 2015.

(On appeal from order dated 8-2-2012, passed by the Lahore High Court, Rawalpindi Bench, in W.P. No.447 of 2010)

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

----Ss. 60 & 220(2), (3)---Cantonment Board---Water rates, revision of---Cantonment Board vide a resolution revised the rate for supply of water to its residents---Contention of petitioner was that the Cantonment Board had revised the water rates by imposing water tax, which tax could only be imposed or levied with the prior permission of the Federal Government, as provided by S. 60 of the Cantonments Act, 1924---Validity---Section 220(3) of Cantonments Act, 1924, provided that the quantity of water in respect whereof water tax has not been imposed, the Cantonment Board may receive payments for supply of water at a fixed rate and such rate was distinct from the water tax referred to in S. 220(2) of the Cantonments Act, 1924 ---'Water tax' and 'rate for supply of water' were (concepts which were) neither legally synonymous nor interchangeable---Resolution passed by the Cantonment Board in the present case, did not purport to levy any water tax, as envisaged by S. 220(2) of the Cantonments Act, 1924, but merely revised the rates of supply of water in terms of S. 220(3) of the said Act of 1924 --- Resolution passed by the Cantonment Board in the present case, did not impose any tax in terms of S. 60 of the Cantonments Act, 1924, therefore, neither any prior permission from the Federal Government was required nor was it necessary to comply with the provisions of Ss. 60 to 63 of the Cantonments Act, 1924---Resolution passed by the Cantonment Board in the present case revising the rate for supply of water to its residents did not suffer from any illegality---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order passed by Supreme Court---Scope---Such order ordinarily did not constitute a definite declaration of law.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Col. (Retd.) Muhammad Akram, Advocate Supreme Court for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 26th February, 2015.

2015 S C M R 836

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, QUETTA and others---Appellants

versus

SHAUKAT ALI and another---Respondents

Civil Appeal No.1285 of 2013, decided on 5th March, 2015.

(On appeal against the judgment dated 24-7-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No. 26(Q)CS/2012)

Railway Personnel Manual, 1982---

----Rr. 433 & 611---Promotion, withdrawal of---Seniority reckoned from date of regular appointment---Respondent was appointed as Shunting Porter (BS-6) in Pakistan Railways ("Department") ---To fill the vacant posts of Assistant Yard Master (BS-9) the Department asked its staff to give their willingness to promotion as Assistant Yard Master and thereafter the willing persons were directed to appear for training at the academy---Respondent attended the said course and obtained 2nd position, and consequently on the basis of merit was promoted as Assistant Yard Master---Subsequently such promotion was withdrawn by the Department as respondent was junior according to the combined seniority list of staff who had qualified the course for promotion as Assistant Yard Master---Respondent then challenged the said order before the Service Tribunal, which stood allowed, and he was promoted---Contention of Department was that respondent was junior according to the combined seniority list of staff who had qualified the course for promotion as Assistant Yard Master (BS-9), and that according to R. 611 of the Railway Personnel Manual, the seniority had to be reckoned from the date of regular appointment---Validity---Respondent was serving in the Department and for in-service staff, courses were held for further promotion---According to R. 611 of the Railway Personnel Manual, 1982, the combined seniority list of staff belonging to more than one category or more than one unit in the same category who were eligible for promotion to higher grade post shall be reckoned from the date of regular appointment to a post in the eligible grade (excluding officiating period against leave vacancies other than L.P.R. or under local arrangements made to suit administrative convenience)---Further R. 433 of the Railway Personnel Manual, 1982 stipulated that senior staff who, on the basis of seniority, became eligible for being sent to the training school to qualify themselves in promotion courses, passing of which was a pre-requisite condition for consideration for promotion to higher grade posts, should not be allowed to be superseded by their juniors---Respondent was at serial No. 9 of the seniority list prepared for further promotion to Assistant Yard Master, department, in such circumstances, had rightly withdrawn the order of promotion of the respondent---Appeal was allowed accordingly and judgment of Service Tribunal was set aside.

M. D. Shahzad Feroz, Advocate Supreme Court and Mujahid Hashmi, Law Officer for Appellants.

Nemo for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 5th March, 2015.

2015 S C M R 840

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

IRFAN ALI---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 349 of 2009, decided on 16th March, 2015.

(On appeal from the judgment/order dated 22-12-2008 passed by Lahore High Court, Multan Bench in Criminal Appeal No. 401 of 2002 and Murder Reference No. 77 of 2006)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Discrepancy between medical and ocular account---Un-witnessed occurrence---Crime empties not matching recovered weapon---Probability of false implication---Co-accused allegedly fired at and killed the deceased, while the accused was also alleged to have fired at the deceased when he was lying on the ground in a dying state---Trial Court awarded death sentence to accused, which sentence was confirmed by the High Court---Validity---When the dead body of deceased was subjected to autopsy, the medico-legal officer, besides firearm injuries also found six incised wounds of different dimensions caused by sharp-edged weapon like dagger---Being confronted with such a postmortem report, through foul play supplementary statement of the complainant was recorded, also attributing the accused of inflicting dagger blows on the deceased when he was lying in a dying condition---Such statement was disowned at the trial by the complainant however, to adjust the ocular account and to bring it in line with the medico-legal evidence, the added version was introduced in the statement of a prosecution witness under S. 161, Cr.P.C.---Despite the fact that the FIR gave complete photographic narration of the entire tragedy with a (high) degree of accuracy of each and every detail of the incident, the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant---Such doubt of reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1-1/2 hour at the spot with the dead body, there was no room left for such a glaring omission---Such omission was very fatal to the prosecution case and it was established that the present crime was an un-witnessed one---Dishonest attempts were made as a dagger was also shown to have been recovered in the present case, however, the recovery memo showed that full description of the dagger had been given but blood stains on it were omitted therefore, when blood was not found on it, question was as to how the chemical examiner could give an opinion about the presence of human blood on it---Such circumstances would show that the blood on the dagger was planted against the accused---None of the crime empties recovered from the crime scene matched with the weapon allegedly recovered at the pointation of accused---Four acquitted co-accused persons were implicated in the present case without any shred of evidence for hatching conspiracy with the accused and another co-accused to commit the murder and it was for want of proof that they were acquitted by the Trial Court thus, it appeared that the noose was thrown much wider in the present case, falsely implicating innocent persons---One of the co-accused, who was alleged to have initiated the aggression by firing four consecutive shots at the deceased, which proved fatal or dangerous to life, was exonerated from the charge---Role of accused in comparison to said acquitted co-accused was that he caused firearm and dagger injuries to the deceased when he was lying on the ground in a dying condition---Award of death sentence to the accused in such circumstances, when the co-accused with a more serious and grave role in the incident was acquitted, was neither understandable nor warranted in law--- Evidence of witnesses which had not been believed with regard to the acquitted co-accused was relied upon for convicting the accused---Not a single iota of corroboratory evidence was found in the present case to substantiate the tainted evidence of the same set of witnesses with regard to the involvement of the accused in the crime---Conviction and death sentence awarded to accused were set aside in circumstances---Appeal was allowed accordingly.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 and Munawar Ali v. The State PLD 1993 SC 251 ref.

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

----S. 302(b)---Qatl-i-amd---Witnesses---False testimony---Whenever witnesses were found to have falsely deposed with regard to the involvement of one co-accused then, ordinarily, they could not be relied upon qua the other co-accused unless their testimony was sufficiently corroborated through strong corroboratory evidence, coming from an unimpeachable source---Evidence of a witness was divisible, however, pre-condition was that evidence of the same set of witnesses may be rejected against some of the accused and it could be relied upon with regard to the other set of the accused, provided it was getting strong independent corroboration from unimpeachable source while recording conviction on a capital charge.

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

----S. 302(b)---Qatl-i-amd---Death sentence, award of---Evidence---Interested or inimical witnesses---To award a capital punishment in a murder crime, it was imperative for the prosecution to lead unimpeachable evidence of a first degree, which ordinarily must get strong corroboration from other independent evidence if the witnesses were interested or-inimical towards the accused.

(d) Criminal trial---

----Medical evidence based on the opinion of medico-legal officer---Scope---Such evidence was a mere opinion of an expert and was confirmatory in nature and not corroboratory except those observations of the medico-legal officer which were based on physical examination which served as a corroboratory piece of evidence.

Fawad Malik Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Ch. M. Waheed Khan, Additional P.-G. Punjab for the State.

Date of hearing: 16th March, 2015.

2015 S C M R 847

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Dost Muhammad Khan, JJ

Dr. RIFFAT KAMAL and others---Appellants

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 981 to 984 of 2013, decided on 24th February, 2015.

(On appeal against the judgment dated 10-4-2013 passed by the Federal Service Tribunal, Islamabad in Appeal No.1518(R)CS/2011)

Civil Servants (Seniority) Rules, 1993---

----R. 4---Pakistan Institute of Medical Sciences Ordinance (XI of 1995), S. 20(b)---Seniority in service---Scope---Seniority reckoned from date of regular appointment--- Medical Officers appointed in Pakistan Institute of Medical Sciences (PIMS) prior to promulgation of the Pakistan Institute of Medical Sciences Ordinance, 1995---Appellant-medical officers were appointed in PIMS on contract basis, and subsequently their services were regularized prior to the year 1992---Respondent-medical officer was appointed as a medical officer in the year 1993, and upon his own request, he was transferred and posted in PIMS in the year 2003---Federal Service Tribunal held that seniority of medical officers at PIMS was required to be determined on the basis of dates of their regular appointments to said post and the appellant-medical officers having not been appointed in the prescribed manner could not claim their seniority against the respondent-medical officer who from the first day was appointed by the competent authority on the recommendation of the Federal Public Service Commission---Validity---Pakistan Institute of Medical Sciences (PIMS) was an autonomous body managed by Board of Governors and later in the year 1995 vide Pakistan Institute of Medical Sciences Ordinance, 1995, it was declared as an attached Department of the Ministry of Health---Appellant-medical officers were duly appointed by the Board of Governors of the PIMS before promulgation of the Pakistan Institute of Medical Sciences Ordinance, 1995--- Service Tribunal failed to understand that at the time of appointment of appellant-medial officers it was the Board of Governors which was competent to appoint the appellants---Section 20(b) of the Pakistan Institute of Medical Sciences Ordinance, 1995, also clearly stipulated that all actions taken before promulgation of said Ordinance shall be deemed to have been respectively done---Appellants were regularized in service before the year 1992, whereas the respondent who was appointed as medical officer in the year 1993, himself requested for transfer to PIMS and vide order dated 9-4-2003 was posted in PIMS---Respondent was appointed in the year 1993, and could not claim seniority over the appellants, who were earlier regularized before his appointment---Competent authority had rightly determined seniority of respondent from the year 2003, and placed him junior to the appellants---Rule 4 of the Civil Servants (Seniority) Rules, 1993, clearly stipulated that seniority in a service, cadre or post to which a civil servant was appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post---Impugned judgment of Federal Service Tribunal was set aside in circumstances---Appeal was allowed accordingly.

S. M. Farooq v. Muhammad Yar Khan 1999 SCMR 1039 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court for Appellants.

Dr. Muhammad Fayyaz, Respondent No.3 in person.

Nadeem Akhtar, PA to Legal Advisor for Respondent No.2.

Date of hearing: 24th February, 2015.

2015 S C M R 851

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Ejaz Afzal Khan and Umar Ata Bandial, JJ

MUHAMMAD SHAFIQUE KHAN SAWATI---Appellant

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Water and Power, Islamabad and others---Respondents

Civil Appeal No. 1434 of 2014, decided on 25th February, 2015.

(On appeal from the judgment dated 10-2-2004 passed by Islamabad High Court, Islamabad in W.P. No. 4623 of 2013)

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition filed before the High Court---Public interest litigation---Anticipated award of contract by Government authority for electro-mechanical works---Tender---Bidding process---Contention of petitioner/appellant was that only one entity had tendered its bid for the works, thus there was lack of competition which would lead to loss of public exchequer---Validity---First bidding process was annulled by the competent authority after (bid) evaluation process drew criticism and controversy---Second (i.e. current) round of tender bidding had not drawn any complaint, criticism or objection from the public or private sector watchmen authorities or the media---Present case lacked any concrete allegation of wrong doing against the award of contract---Allegation levelled by the petitioner namely, that the bid given by the party in the second bidding process was defective and unconscionable, was conjectural---Petitioner's challenge appeared to be speculative, hypothetical and therefore colourable---Despite lapse of more than 14 months after the second round of bidding concluded in the present case, resulting in issuance of letter of acceptance, no factual material was brought by the petitioner before the High Court or before the Supreme Court to substantiate or exemplify the allegation made against the contract awardee---Contract execution in the present case had not progressed since issuance of the letter of acceptance, and public interest had actually suffered as a result of the delay---By the state of disclosure of allegations, facts and evidence, in the present case, the petitioner had failed to demonstrate any wrongdoing and harm having been done to public interest---Appeal was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Public interest litigation---Scope and pre-requisites---Public interest litigation undertaken by a citizen must in the first place transparently demonstrate its complete bona fides---Litigant must show that such litigation was not being undertaken to serve a private or vested interest but was demonstrably aimed at serving the public interest, good or welfare---Public interest litigation must be based on concrete facts that were duly substantiated or were verifiable---Constitutional jurisdiction of the superior courts was exercised to safeguard and promote the public interest and not to entertain and promote speculative, hypothetical or malicious attacks that blocked or suspended the performance of the executive functions by government.

ECHO West International (Pvt.) Ltd. v. Government of Punjab PLD 2009 SC 406; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 and Javed Ibrahim Paracha v. Federation of Pakistan PLD 2004 SC 482 ref.

Hashmat Ali Habib, Advocate Supreme Court and S. Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Abdul Rashid Awan, DAG for Respondent No.1.

Mohsin Akhtar Kiani, Advocate Supreme Court for Respondent No.2.

Mahmood Raza, DPG NAB for Respondent No.3.

Sajid Zahid, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.4.

Date of hearing: 25th February, 2015.

2015 S C M R 856

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

DADULLAH and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No. 167 of 2007, decided on 17th March, 2015.

(On appeal against the judgment dated 4-6-2005 passed by the High Court of Balochistan, Sibbi Bench in Criminal A.T.A. Jail Appeal No. S-3 of 2004)

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

----Ss.392 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & (c)---Pre-planned bank dacoity with murder---Reappraisal of evidence---Death sentence, award of---Accused persons were alleged to have committed dacoity at a bank and in the process fired at and killed two persons---Although the accused persons committed the offence with muffled faces yet both of them were introduced by witnesses with specific dressing and arms in their possession---Prosecution witnesses corroborated each other and they remained consistent qua the role attributed to each of the accused---Statements of all the prosecution witnesses fully connected the accused persons with the commission of the crime, and they narrated the story in a natural manner---When the accused persons were specifically identified by prosecution witnesses while coming out of the bank and later by other prosecution witnesses who had apprehended one of the accused, there arose no question of mistaken identity---Non-holding of identification parade, thus, was of no help to the accused persons --- No mala fide could be attributed towards the witnesses to falsely involve the accused persons in the present case---Admittedly FIR was got recorded after a delay of one hour but the same in the facts and circumstances of the present case was justified, as immediately after the occurrence, written application for registration of FIR was sent to Levies and at that time the accused persons were not identified---Although the empties and the weapons of offence were sent for examination after two months, yet according to the report of Forensic Science Laboratory the weapons were used in the commission of offence---Medical evidence also fully supported the prosecution case so far as the nature of injuries was concerned---Initially accused persons confessed their guilt before the Judicial Magistrate and narrated the details and background of the occurrence, but later they retracted such confession---Evidence showed that confessional statements of the accused were not the result of maltreatment and coercive measures---Judicial Magistrate had stated that the accused persons were given relaxation of time and they were told that they were not bound to record their statements---Further it was clarified to the accused persons that if they did not want to make their statements, they would not be handed over to Levies and would be sent to judicial lockup---Retraction of confessions by the accused persons, in such circumstances, seemed to be palpably false and incorrect only to save their skin and the only conclusion that could be drawn was that confessional statements were recorded by the accused persons voluntarily---Accused persons in the present case had committed a pre-planned dacoity and killed two innocent persons and also looted the bank in a wanton, cruel and callous manner, thus, no leniency should be shown to them---Sentence of death would create a deterrence in the society due to which no other person would dare to commit the offence of murder---When in any proved case a lenient view was taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society---Courts should not hesitate in awarding the maximum punishment in cases like the present one, where it had been proved beyond any shadow of doubt that the accused was involved in the offence---Prosecution had proved its case against the accused persons beyond any shadow of doubt, and they did not deserve any leniency in the matter of confirmation of their death sentences by the High Court---Appeal was dismissed accordingly.

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

----S. 164---Confession of guilt before the Judicial Magistrate---Conviction---Scope---Conviction could not be recorded on the sole basis of confessional statement and the prosecution had to prove its case beyond any shadow of doubt---Notwithstanding the procedural defect in the confessional statement, if any, a judicial confession if it was found true, voluntary and confidence inspiring, could safely be made basis for conviction---When the confessional statement of the accused was not the result of maltreatment and coercive measures, and the Judicial Magistrate had provided the accused with relaxation of time and informed him that he was not bound to record his statement, then such confession could be made basis for conviction.

(c) Criminal trial---

----"Punishment"---'Deterrent punishment' and 'minor punishment'---Concept and purpose---Punishment to an accused was awarded on the concept of retribution, deterrence or reformation---Purpose behind infliction of sentence was two fold; firstly, it would create such atmosphere, which could become a deterrence for the people who had inclination towards crime and; secondly, to work as a medium in reforming the offence---Deterrent punishment was not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society---Concept of minor punishment in law was to make an attempt to reform an individual wrongdoer---Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he was certain of its punishment provided by law and it was only then that the purpose and object of punishment could be assiduously achieved---When a court of law at any stage relaxed its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot free or with punishment not commensurate with the crime, bringing the administration of criminal justice to ridicule and contempt ---Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency.

Noor Muhammad v. State 1999 SCMR 2722 ref.

(d) Criminal trial---

----"Sentencing"---Deterrence---Deterrence was a factor to be taken into consideration while awarding sentence, specially the sentence of death---Very wide discretion in the matter of sentence had been given to the courts, which must be exercised judiciously.

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

----S. 302---Murder--- Death sentence, award of--- Scope--- Death sentence in a murder case was a normal penalty and the courts while diverting towards lesser sentence should give detailed reasons.

Kamran Murtaza, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Tariq Mehmood, Senior Advocate Supreme Court for the Complainant.

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

Date of hearing: 17th March, 2015.

2015 S C M R 864

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

MUHAMMAD JAVED---Petitioner

versus

The STATE---Respondent

Criminal Petition No. 76 of 2015, decided on 10th March, 2015.

(Against the judgment dated 12-1-2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 148-J of 2010 and Murder Reference No. 126 of 2010)

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd--Reappraisal of evidence---Death sentence, award of---Motive admitted by accused---Medical evidence supporting ocular account---Plea of private defence not proved---Effect---Accused-petitioner allegedly killed his brother-in-law due to strained relations with his ex-wife---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---High Court confirmed death sentence passed by the Trial Court---Validity---Three natural eye-witnesses of the occurrence deposed before the Trial Court that shortly before the present occurrence some members of the accused party had approached the complainant party for a reconciliation between the accused and his ex-wife but such efforts failed to yield any positive result and within half an hour of such failed negotiations the accused fired at the deceased twice whereafter the accused was overpowered by the members of the complainant party and was apprehended at the spot along with the weapon of offence and was subsequently handed over to the local police---Said witnesses consistently pointed their accusing fingers towards none other than the present accused as the sole perpetrator of the murder---Ocular account furnished by the said eye-witnesses had received full support from the medical evidence---Motive asserted by the prosecution was admitted by the accused at every stage of the investigation and the trial---Two crime-empties secured from the place of occurrence had matched with the pistol recovered from the accused's custody at the spot---Although the accused tried to dig holes in the positive report of the Forensic Science Laboratory in respect of matching of the crime-empties with the recovered pistol yet the case of the prosecution based upon the ocular account corroborated by the motive and supported by the medical evidence was so strong that even if the recovery of pistol and its matching with the crime-empties were omitted from consideration still the strength of the prosecution's case against the accused was not materially affected---Accused had admitted his presence and participation in the incident in issue and had also admitted his having fired twice at the deceased at the spot but he had tried to advance a case of exercise of private defence through a story which had never been established by him through any independent evidence---Prosecution, in the present case, had succeeded in establishing the guilt of accused to the hilt---No mitigating circumstance was found in the present case warranting mitigation of sentence of death of accused---Petition for leave to appeal was dismissed accordingly.

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

---Art. 121---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Plea of private defence--- Burden of proof--- According to the provisions of Art. 121 of the Qanun-e-Shahadat, 1984 the onus to prove a plea of exercise of private defence was squarely upon the accused.

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Re-appraisal of evidence---Death sentence, award of---Plea for reduction in sentence, rejection of---Firing on vital parts of body---Arrest from scene of occurrence---Accused allegedly killed his brother-in-law due to strained relations with his ex-wife---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---High Court confirmed death sentence passed by the Trial Court---Plea of accused-petitioner that the straining of relations between him and his ex-wife was an admitted fact and in such backdrop frustration of the accused upon failure of reconciliation and return of his spouse to his matrimonial fold was a factor which could have had some bearing upon the matter of his sentence---Validity---Marriage between the accused and his spouse in the present case had been terminated through a judicial decree about one year prior to the present occurrence and, thus, there was hardly any scope of any reconciliation left in the field---At such stage if the accused still wanted his divorced spouse to come and live with him then he was asking for something which was not only bizarre but impossible to be acceded to by the complainant party and the former spouse---Accused had shown extreme highhandedness by launching aggression against the complainant party and killing his former brother-in-law by firing not once but twice at him hitting him at the most vital parts of his body, i.e. chest and abdomen---Accused had been apprehended red-handed at the spot and was handed over to the local police along with the weapon of offence soon after the incident in issue and, thus, there was very little scope left for him to deny his presence and participation in the said occurrence---Accused belonged to the police force and as a member of a disciplined force a responsibility heavier than normal was placed upon his shoulders to abide by the law and not to take the law in his own hands---Accused had not only failed to bother about such responsibility lying upon his shoulders but he had also considered himself to be above the law and had tried to take undue advantage of his being a member of the police force by pressurizing the complainant party on the issue of his failed matrimony---Accused has failed to evoke the sympathy of the court in the present matter of his sentence and even otherwise there was no circumstance warranting mitigation of his sentence of death---Petition for leave to appeal was dismissed accordingly.

Mrs. Afshan Ghazanfar, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 10th March, 2015.

2015 S C M R 869

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

MAHMOOD SHAH---Appellant

versus

Syed KHALID HUSSAIN SHAH and others---Respondents

Civil Appeal No. 734 of 2010, decided on 19th March, 2015.

(On appeal from the judgment of the Peshawar High Court dated 22-4-2010 passed in Civil Revision No. 156 of 2010)

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

----S. 3---Succession---Co-heirs of property left by the propositus---Mutation of succession excluding a co-heir---Limitation period for challenging such mutation---Scope---Propositus of the parties died in 1978, and on his demise his legacy was to devolve on his two sons, two daughters and children of his pre-deceased daughter---Mutation witnessing succession excluded the children of the pre-deceased daughter, who questioned their exclusion through a civil suit---Said suit was decreed by the Trial Court as well as the High Court---Contention of appellant-defendant was that mutation witnessing the succession was sanctioned in 1978, but the suit challenging such mutation was instituted in 1998, which was hopelessly time barred and was liable to be dismissed---Validity---Where co-heirs became co-owners in the property left by their propositus on his demise, their succession to the property of their propositus became a fait accompli immediately after his demise---Such succession to property, thus, did not need the intervention of any of the functionaries of the Revenue Department and remained as such irrespective of what Patwari, Girdawar and Revenue Officer entered in the mutation sanctioned in such behalf---Since possession of one co-heir or any number of them would be deemed to be on behalf of even those who were out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action---No length of time, therefore, would culminate in the extinguishment of their proprietary or possessory rights---Appeal was dismissed accordingly.

(b) Islamic law---

----Succession---Limitation---Scope.

Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 and Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657 distinguished.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4--- Constitution of Pakistan, Art. 203-D(2), proviso & 203F(1), (3)---Succession---Death of any son or daughter of the propositus before the opening of succession---Inheritance right of children of such son or daughter---Repugnancy to Injunctions of Islam---Section 4 of the Muslim Family Laws Ordinance, 1961, had been declared against the tenets and Injunctions of Islam by the Federal Shariat Court in its judgment rendered in the case of Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1)---Effective date of such declaration---Such declaration even if affirmed by the Shariat Appellate Bench (of the Supreme Court) would take effect from 31-3-2000 in view of the provision contained in Art. 203D of the Constitution---Such declaration could not affect previous operation of law or a succession taking place before such date---Appeal was dismissed accordingly.

Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others 2002 SCMR 164 and Muhammad Ali and others v. Muhammad Ramzan and others 2002 SCMR 426 ref.

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Malik Tahir Mehmood, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondents.

Date of hearing: 19th March, 2015.

2015 S C M R 874

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ijaz Ahmed Chaudhry and Maqbool Baqar, JJ

MUHAMMAD MAQBOOL through LRs and others---Appellants

versus

Ch. NAZIR AHMED through LRs and others---Respondents

Civil Appeals Nos. 521 and 522 of 2008, decided on 11th March, 2015.

(Against the judgment dated 25-4-2008 of the Lahore High Court, Multan Bench passed in R.S.As. Nos. 118 of 1981 and 29 of 1982)

(a) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 15---Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 4---Pre-emption suit---Superior right of pre-emption on basis of ownership in the estate---Scope---Pre-emption suits filed by plaintiffs (purported pre-emptors) were decreed by the Trial Court in the ratio 50% in favour of each set of plaintiffs on the basis that they had superior right of pre-emption on basis of ownership in the estate---First Appellate Court reversed the findings of the Trial Court and proceeded to dismiss the suits---High Court set aside judgment of First Appellate Court and restored the decree passed by the Trial Court---Contention of plaintiffs was that High Court had rightly decreed their suits as they had a superior right of pre-emption being owners in the estate while the vendees had no land in the estate---Validity---Plaintiffs based their claim of superior right of pre-emption on an alleged purchase of some property in the estate at a date earlier than the vendee---Said alleged purchase by plaintiffs was made from a person, who himself was not the full and absolute owner of the property, and was only granted certain rights in the land by the Settlement Department---Evidence on record, including the relevant mutations and jamabandis, showed that the person from whom the plaintiffs allegedly purchased the property in the estate was only a ta'iundar ---Government was the owner of such land and only those rights had been transferred to the said person which had come to vest in the Federal Government by operation of S. 4 of the Displaced Persons (Land Settlement) Act, 1958---Revenue record also showed that said person was not the owner of the land but only a cultivator---Superior right of pre-emption vested in that person under the Punjab Pre-emption Act, 1913 who was the owner in the estate and not a mere cultivator---To deprive the vendee-defendants of their right to property on the basis of the plaintiffs being owner in the estate, the minimum requirement of law would be for the plaintiffs to prove that they were vested with full title---Such requirement of proving full title was not fulfilled by the plaintiffs, as such they had not been successful in establishing the foundation on which their claim to a superior right of pre-emption was based---Appeal was allowed accordingly and pre-emption suits filed by plaintiffs were dismissed.

Haji Sultan Muhammad and another v. Muhammad Siddiq PLD 1973 SC 347 distinguished.

(b) Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 15---Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 4---Pre-emption suit---Superior right of pre-emption on basis of ownership in the estate---Scope---Under the Punjab Pre-emption Act, 1913, a superior right of pre-emption on the basis of ownership in the estate, could only be claimed when such ownership was vested and complete---Where a person was a ta'iundar only and not the full owner, his right of pre-emption based on ownership in the estate would only arise after title had been transferred to him.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court, Mian Muhammad Hanif, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Sardar Muhammad Aslam, Advocate Supreme Court, Ch. Muhammad Yaqoob Sindhu, Advocate Supreme Court, Ch. Abdul Sattar Goraya, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 11th March, 2015.

2015 S C M R 879

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Qazi Faez Isa, JJ

Syed DARBAR ALI SHAH and others---Petitioners

versus

The STATE---Respondent

Criminal Petition No. 4-K of 2015, decided on 18th March, 2015.

(Against the order dated 29-12-2014 passed by the High Court of Sindh, Circuit Court, Hyderabad in Criminal Bail Application No.S-1277 of 2014)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148, 149, 114, 504 & 337-F(i)---Qatl-i-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed, intentional insult with intent to provoke breach of peace, ghayr-jaifah-damiyah---Pre-arrest bail, grant of---Case of cross version FIRs---Delay in lodging of FIR---Non-disclosure of casualties and injuries sustained by accused party in the FIR---Completion of investigation---Effect---FIR in the present case had been lodged after about seventeen and a half hours of the occurrence---FIR itself showed that it was the complainant party which had gone to the place of occurrence whereat the accused party was already present which factor may react against the allegation of premeditation on the part of the accused party---During the occurrence two persons had died and another had been injured from the side of the complainant party whereas one person had lost his life and two others had received injures on the side of the accused party---Dying of one person and sustaining of injures by two others from the side of the accused party had not even been mentioned in the present FIR lodged by complainant party and such omission prima facie raised an eyebrow---Both the parties, in the present case, had come up with their own versions of the same incident and had lodged separate FIRs and it was not disputed that the FIR lodged by the accused party was much prior in time than the present FIR lodged by the complainant party---According to the FIR lodged in the present case accused was saddled with the responsibility of raising a lalkara only whereas the injures attributed in the said FIR to co-accused persons were opined by a doctor to be attracting the offence under S.337-F(i), P.P.C. which offence was bailable---Investigation of the present case had already been finalized and a challan had been submitted and, thus, physical custody of the accused and co-accused persons was no longer required at present stage for the purposes of investigation---During the investigation accused and one of the co-accused had been opined by the local police to be innocent as they were found not to be present at the scene of the crime at the relevant time---Insistence by the police upon arrest of accused and co-accused persons in such circumstances provided some substance to the assertion of the accused party regarding ulterior motives on the part of the police as well as the complainant party---Accused and co-accused persons were admitted to pre-arrest bail accordingly.

Shahadat Awan, Advocate Supreme Court with Petitioners in person.

Saleem Akhtar, Additional Prosecutor-General, Sindh for the State.

Date of hearing: 18th March, 2015.

2015 S C M R 882

[Supreme Court of Pakistan]

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

C.M.A. NO. 3854 OF 2014 IN SUO MOTU CASE NO.3 OF 2009: In the matter of

C.M.A. No. 3854 of 2014 in SMC No. 3 of 2009

(Implementation of the order dated 5-6-2013 passed in SMC 3

of 2009)

AND

C.M.A. No.4341 of 2014 in C.M.A. No. 3854 of 2014

in SMC No.3 of 2009

(Concise statement on behalf of respondent-Bahria Town)

C.M.A. No.3854 of 2014 in SMC No.3 of 2009, C.M.A. No. 4341 of 2014 in C.M.A. No.3854 of 2014 in SMC No.3 of 2009, decided on 31st March, 2015.

(a) Supreme Court Rules, 1980---

----O. IV---General adjournment---Intimation of general adjournment by Advocate to the Supreme Court---Practice and procedure---Courtesy was always extended to the members of the Bar, however, it was always for the party or the Advocate Supreme Court to ensure presence of the Advocate-on-Record (AOR) at the hearing and it was for the Advocate-on-Record to inform the court that the counsel was on adjournment or at the very least to file an application giving intimation of the general adjournment.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 134---Supreme Court Rules, 1980, O. IV---Constitution of Pakistan, Art. 184(3)---Suo motu case before the Supreme Court---Apprehension of bias of Judge by the party---Filing of application by a corporate entity---Scope---One of parties to the case, which was a corporate entity, filed an application before the Chief Justice of the Supreme Court outlining that one of the Judges of the Supreme Court hearing the present case had already made up his mind regarding certain aspects of the case---Validity---Party which had filed the said application was merely a corporate entity and it had no mind of its own and could have no apprehension of its own---Corporate entity only acted through natural persons such as its directors, chief executive etc., therefore the counsel representing the corporate entity had to explain to the court as to who had the apprehension and on what basis---Prima facie, there appeared to be some significant breaches of the Supreme Court Rules, 1980, and of the Code of Conduct prescribed for Advocates under the Legal Practitioners and Bar Councils Act, 1973 in the present case---Such apparent violations included violation by an Advocate "to uphold at all times the dignity and high standing of his profession as well as his own dignity and high standing as a member thereof"---Order accordingly.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 156---Supreme Court Rules, 1980, O. IV---Professional conduct and etiquette of an advocate---Scope---Bar and Bench, independence of---Scope---Advocate was not a tool or a puppet in the hands of his client, obliged to pander to the desires of the client, right or wrong---Rule 156 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 stated that "nothing operates, more certainly to create or foster popular prejudice against Advocates as a class, and to deprive the profession of [the] public esteem ... which belongs to the proper discharge of its duties"---Said Rule further stipulated that "the Office of an Advocate does not permit, much less does it demand of him ... the violation of any law or any manner of fraud or chicanery… In doing his professional duty to his client he must obey the voice of his own conscience and not that of his client"---Honest, upright and ethical Bar was absolutely essential for the just dispensation of justice, particularly in an adversarial legal system, which had to be ensured at all costs if an independent Bench and Bar were to be maintained.

Malik Muhammad Shafi and Dr. Shafiq ur Rehman, Voluntarily appeared in person.

Razzaq A. Mirza, Additional A.-G., Nadeem Ashraf, Senior Member, BOR, Muzaffar Mehmood, Member, BOR, Sajid Zafar, DCO, Rawalpindi, Arif Raheem, ADC, Rawalpindi, Tasneem Ahmad Khan, A.C. Rawalpindi, Cap. (R.) Jahanzeb Khan, Secy. Forests, Iftikhar Ahmed, Conservator, Rawalpindi, Ejaz Ahmed, DFO, Rawalpindi, South, M. Maqsood, Gardawar, Kala Khan, Gardawar, M. Ishfaq, Gardawar, Malik Noor Zaman, Tehsildar, Mustansar Ali Gill, Tehsildar, Malik Mumtaz Ahmad, Naib Tehsildar, Malik Nisar, Naib Tehsildar, Waqar Ahmad, Naib Tehsildar, M. Safdar, Naib Tehsildar, Sajid Mahmood, Naib Tehsildar, Abdul Shakoor, Naib Tehsildar, Ameer Anwar, Patwari, Tariq Mehmood, Patwari, Mehmood Ahmed, Patwari and Abdul Aziz, Patwari on Court's Notice.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court (on behalf of Syed Ali Zafar, Advocate Supreme Court), Raja Zafar Khaliq, Advocate Supreme Court (on Court's call) and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town.

Date of hearing: 31st March, 2015.

2015 S C M R 890

[Supreme Court of Pakistan]

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

Dr. RAJA AAMER ZAMAN---Appellant

versus

OMAR AYUB KHAN and 9 others---Respondents

Civil Appeal No. 31 of 2014, decided on 7th March, 2014.

(On appeal from judgment, dated 31-12-2013, passed by Election Tribunal, Abbottabad, in Election Petitions Nos.76 of 2013 and Election Tribunal(sic.) No. 6 of 2013)

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

----S. 55(1)(b)---Election petition, contents of---Illegal and corrupt practices, details of---Compliance with provisions of S. 55 of the Representation of the People Act, 1976---Scope---Failure of the election officers and staff to conduct the election in accordance with the provisions of Representation of the People Act, 1976---Appellant was declared as the returned candidate for the constituency in question, against which the respondent-candidate filed an election petition before the Election Tribunal---Contention of appellant was that election petition merited dismissal as it did not set out the full particulars of the alleged illegalities and corrupt practices as required by S. 55(1)(b) of Representation of the People Act, 1976---Validity---Provisions of S. 55 of the Representation of the People Act, 1976, were primarily limited to illegal and corrupt practices attributable to the candidates or their representatives---Failure of the election officers and staff to conduct the elections in accordance with the applicable provisions was a separate matter and the requirements of S. 55 of the Representation of the People Act, 1976 qua the particularity of the details thereof may not apply with the same force and rigor---Allegations in such behalf need only be detailed as far as was possible in the circumstances of each case---Allegations of respondent-candidate in the present case pertained to the non-compliance of the provisions of Representation of the People Act, 1976, and the Rules framed thereunder by the election staff in several polling stations---Election petition in the present case contained the allegations that in certain polling stations the electoral lists were lying unused while in other polling stations the electoral lists were missing, and that the envelope of rejected votes in certain polling stations were also missing---Annexures were attached with the election petition giving details of such allegations---Grievance of respondent-candidate with regards to failure of the election staff to comply with the Representation of the People Act, 1976, and the relevant Rules had been pleaded with sufficient particularity so as to constitute due compliance with provisions of S. 55 of Representation of the People Act, 1976---Election petition filed by the respondent-candidate, therefore, could not be dismissed on grounds of non-compliance with S. 55 of Representation of the People Act, 1976---Appeal was dismissed accordingly.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 ref.

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

----Ss. 33(2)(b), 33(2)(c), 38 & 68---Election for seat of National Assembly---Election staff not complying with provisions of Representation of the People Act, 1976---Elections result materially affected---Re-polling ordered in some of the polling stations---Legality---Voter lists missing from bags containing election material---Unused voter lists---Names of voters to whom ballot papers issued not struck off---Discrepancy between ballot papers issued and votes casted---Thumb impressions of voters not obtained on the voters list---Due to such acts and omissions of the election staff, the Election Tribunal ordered re-polling in seven polling stations of the constituency and directed that the notification issued by the Election Commission of Pakistan (ECP), declaring the appellant, as a returned candidate from the constituency in question should be suspended till the re-polling was conducted and a fresh result was calculated and declared---Contention of appellant (returned-candidate) that acts and omissions of the election staff did not justify ordering of re-polling in some of the polling stations, especially as there was no finding of any corrupt practice having been committed by the returned candidate---Validity---Significance of the availability of the voters list/copy of the electoral roll with the Presiding Officer and its proper utilization by him could not be overstated---To achieve the object of fair election the availability and proper utilization of the voters list was crucial---Another safeguard against bogus voting was the counterfoils of the ballot papers---Any discrepancy in the number of votes cast and the counterfoils available would obviously make the result questionable---Similarly, rejected votes could become a bone of contention affecting the outcome of the election---Voters lists, counterfoils of ballot papers and rejected votes were required to be preserved along with other election material as mandated by S. 38 of Representation of the People Act, 1976---Election in the present case was very closely contested and after the second recount, only 1304 votes, separated the appellant and the respondent-candidate---Excluding the votes bagged by both the appellant and respondent in the contentious seven polling stations from their total tally, it was the respondent whose votes exceeded those cast in favour of the appellant---Non-compliance of the law in the seven polling stations, thus, had materially affected the result of the entire election---Pursuant to the impugned judgment of the Election Tribunal, a re-poll was carried out in the seven polling stations and as a consequence of such a re-poll, respondent secured more votes than the appellant, and was entitled to be declared, as a returned candidate from the constituency---Impugned judgment of Election Tribunal, thus, did not call for any interference---Appeal was dismissed accordingly.

Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Muhammad Ali v. Maulana Muhammad Zakria PLD 1966 Journal 167 and Morgan and others v. Simpson and another (1974) 3 All ER, 722 ref.

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

----Ss. 67, 68 & 70---Power of Election Tribunal to declare an election as a whole void---Scope---Non-compliance with provisions of Representation of the People Act, 1976, and Rules framed thereunder by the election staff at some of the polling stations---Effect---Election Tribunal ordering re-polling in the said polling stations but not declaring election as whole void---Legality---Contention of appellant (returned candidate) that if the Election Tribunal found that there had been a failure to comply with the provisions of Representation of the People Act, 1976, and the Rules framed thereunder during the election process, then under Ss. 67 & 70 of the said Act, Tribunal had to declare the entire election process as void and directed a re-poll for the entire constituency rather than ordering a re-poll in seven polling stations---Validity---Where the failure to comply with the mandatory requirements of the provision of Representation of the People Act, 1976, with regards to the electoral process was limited to a few identifiable polling stations, it was the result of such polling stations which alone stood vitiated and the election conducted in the remaining polling stations, was not contaminated---Where isolating the result of such polling stations in question did not materially affect the result of the election, as a whole, no order of invalidating the election (as a whole) would be called for---However, if the votes cast at the isolated polling stations, where the electoral process had been proved to be vitiated, were excluded from the total tally and as a consequence thereof the originally losing candidate emerged as the victor; then, perhaps it may be appropriate for the Tribunal to declare such a candidate as the returned candidate for the constituency---After excluding results of the contentious seven polling stations in the present case from the final tally of appellant and respondent, it was a mathematical certainty that respondent secured more votes than the appellant in the remaining 430 polling stations---Pursuant to the impugned judgment of the Election Tribunal, a re-poll was carried out in the seven polling stations and as a consequence of such a re-poll, respondent secured more votes than the appellant, and was entitled to be declared, as a returned candidate from the constituency---With such a result not only the purpose of the law stood achieved but also the will of electors of the constituency had found its true expression---Impugned judgment of Election Tribunal did not call for any interference---Appeal was dismissed accordingly.

Ehsanullah Reki v. Lt. General (R) Abdul Qadir Baloch and others 2010 SCMR 1271 ref.

Hamid Khan, Senior Advocate Supreme Court for Appellant.

Miangul Hasan Aurangzeb, Advocate Supreme Court assisted by Abdul Rehman Qadir, Advocate Supreme Court and Hamid Ahmad, Advocate for Respondent No.1.

Sher Afghan, DG, ECP, Abdur Rehman, Additional DG, ECP and Tanvir, AD, ECP on Courts' Call.

Date of hearing: 7th March, 2014.

2015 S C M R 905

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ijaz Ahmed Chaudhry and Maqbool Baqar, JJ

Messrs SEZEI TURKES FAYZI AKKAYA CONSTRUCTION COMPANY (STFA)---Appellant

versus

Messrs EKON YAPI ONARIM TICARETVE SANAYI LTD. and 2 others---Respondents

Civil Appeal No. 1132 of 2009, decided on 9th March, 2015.

(Against the judgment dated 9-5-2008 of the Islamabad High Court, Islamabad passed in C.R. No. 244 of 2007)

Civil Procedure Code (V of 1908)---

----S. 20, Explanation II---Place of institution of suit---Scope---Cause of action---Foreign companies entering into a contract to be performed in Pakistan---Contract entered into by the foreign companies was to be performed in Karachi---Contention of foreign appellant-company that courts in foreign city "I" had jurisdiction or in the alternate the courts in Karachi would have jurisdiction and not the civil courts at Islamabad---Validity---Contract was to be performed in Karachi, as such the cause of action vested jurisdiction in the courts at Karachi---Foreign plaintiff-company had also impleaded as defendant in the suit, a respondent-company which had its place of business in Islamabad, however, said company had been proceeded against ex parte in the Trial Court and also chose not to appear in the High Court---Courts at Islamabad, thus, had not been vested with jurisdiction and it was the courts at Karachi where the suit ought to have been filed---Appeal was allowed accordingly.

M. A. Chowghury v. Mitsui O.S.K. Lines Ltd. and 3 others PLD 1970 SC 373 ref.

Babar Bilal, Advocate Supreme Court for Appellant.

Mehr Khan Malik, Advocate-on-Record for Respondent No. 1.

Ex parte for Respondents Nos.2 and 3.

Date of hearing: 9th March, 2015.

2015 S C M R 907

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Iqbal Hameedur Rahman, JJ

Mst. FATEH BIBI---Petitioner

versus

KHIZAR HAYAT and others---Respondents

Criminal Petition No. 995-L of 2014, decided on 13th February, 2015.

(Against the order dated 12-9-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.8903-B of 2014)

Criminal Procedure Code (V of 1898)---

----S. 497(5) ---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Cancellation of bail, petition for---Incorrect observation recorded by Judge-in-Chamber of High Court---Complainant-petitioner had filed a petition before the High Court seeking cancellation of bail granted to accused---Judge-in-Chamber while disposing of the said petition observed that the offence with which accused had been charged, i.e. an offence under S. 302, P.P.C., carried a maximum sentence of imprisonment for life---Legality---Said observation made by the Judge-in-Chamber was clearly against the law but at the same time it must have been made inadvertently---Supreme Court advised the complainant to approach the High Court seeking cancellation of bail on the stated ground of misuse and abuse of the concession of bail by the accused---Petition for leave to appeal was withdrawn accordingly.

Malik Rab Nawaz, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner.

Rana Abdul Majeed, Additional Prosecutor-General, Punjab and Yaqoob, I.O. for the State.

Date of hearing: 13th February, 2015.

2015 S C M R 909

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ijaz Ahmed Chaudhry and Maqbool Baqar, JJ

The PROVINCE OF PUNJAB through Collector, Sialkot---Appellant

versus

FEROZ DIN and others---Respondents

Civil Appeals Nos. 710, 711 and 712 of 2005, decided on 11th March, 2015.

(Against judgment dated 27-10-2000 of the Lahore High Court, Lahore passed in Civil Revisions Nos.1157 and 1217 of 1986)

Limitation Act (IX of 1908)---

----S. 28 [since omitted]--- Adverse possession, claim of--- Original owners of land not impleaded in the suit---Effect---Plea of plaintiffs that (original) owner of land died in the year 1951 and his widow left Pakistan in the year 1965, whereafter the plaintiffs became owners of said land through adverse possession---Validity---Plaintiffs were obliged to implead the original owners of the land as defendants in the suit---Without the original owners being impleaded as defendants in the suit, no possible decree for declaration of title could be passed in favour of the plaintiffs---Real parties who could have objected to plaintiffs' claim of title had not been made parties---Decree in favour of the plaintiffs was, therefore, void because only the Collector had been impleaded as a defendant---Appeal was, therefore, allowed and suit of the plaintiffs was dismissed.

Mudassir Khalid Abbasi, A.A.-G. Punjab for Appellant (in all cases).

Ex parte for Respondents (in C.As. 710 and 711 of 2005).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondents Nos.3, 5 and 7 (in C.A. No. 712 of 2005).

Kh. Ahmed Hassan, D.A.-G. for the Federation.

Date of hearing: 11th March, 2015.

2015 S C M R 911

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Anwar Zaheer Jamali and Maqbool Baqar, JJ

MUHAMMAD ASHRAF and others---Petitioners

versus

UNITED BANK LIMITED and others---Respondents

C.P.L.A. No. 676-K of 2013, decided on 2nd April, 2015.

(On appeal from judgment of High Court of Sindh, Karachi, dated 20-3-2013 passed in C.P. No. D-2781 of 2013)

(a) Constitution of Pakistan---

----Art. 185(3)---Increase in pension, entitlement to---Ex-employees (petitioners) of respondent-bank, who retired before its privatization, claimed that they were entitled to increase in their pension as per terms of privatization agreement of the bank---Contention of bank that clause of the privatization agreement dealing with increase in pension was only applicable to employees/staff who were in service at the time of the privatization agreement, and not to ex-employees who had retired before the privatization agreement---Validity---Record revealed that the petitioners had retired much prior to the privatization of the bank---Privatization agreement of the bank did allow some protection as regards the benefits and facilities enjoyed by the employees/staff of the bank, who were in service at the time of the privatization agreement---Privatization agreement did not cover/protect the claim of pensionary benefits of employees, who had retired during the period before the privatization agreement---On humanitarian ground, one may have sympathy with the petitioners for their meagre pensionary benefits, during present times of high cost of living, but such fact alone was not sufficient to make them entitled for the relief of increase in pensionary benefits---Petition for leave to appeal was dismissed accordingly and leave was refused.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition before High Court---Maintainability---Private bank---Constitutional petition filed before the High Court against a private bank, having no statutory rules---Such a petition was not maintainable to entertain the grievance of the petitioner.

Petitioner in person.

Akhtar Ali Mehmood, Advocate Supreme Court as Amicus Curiae.

Mehmood Abdul Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

M. Aslam Butt, Dy Attorney General for Respondents Nos.2 - 3 (on Court's Notice).

Date of hearing: 2nd April, 2015.

2015 S C M R 915

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and others---Appellants

versus

Ch. ABDUL SATTAR HANS and 29 others---Respondents

Civil Appeals Nos. 80-L to 109-L of 2014, decided on 18th March, 2015.

(Against the judgment dated 28-10-2013 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 2974, 2978, 2979, 2980, 2981, 2982, 2983, 2984, 2985, 2986, 2988, 2989, 2990, 2991, 2992, 2993, 2994, 2995, 2996, 2997, 2998, 2999, 3000, 3001, 3002 and 3003 of 2012)

(a) Constitution of Pakistan---

----Arts. 3 & 25--- Civil service--- Discrimination--- Reasonable classification---Senior Auditors of the Audit Department (BPS-16) [Employees of Federal Government]---Deputy Accountants employed by the Provincial Government (BPS-14) [Employees of Provincial Government]---Question as to whether both sets of employees should receive the same emoluments and perquisites if they were performing the same type of duties---Provincial Service Tribunal found that Federal Government employees and Provincial Government employees should receive the same emoluments and perquisites if they were performing the same type of duties; that if two different pay scales were given to the Federal Government employees and the Provincial Government employees it may amount to extracting labour and exploitation under Art. 3 of the Constitution, and that although the Provincial Government would have to bear extra financial burden but service structure and financial constraints could not stand in the way of the Constitution---Legality---Neither the Service Tribunal nor any other government functionary had undertaken any exercise which would show that the actual work being performed by Senior Auditors of the Audit Department was exactly the same as the work being done by the Deputy Accountants employed by the Province; secondly, Art. 3 of the Constitution had no application in the present case as Deputy Accountants employed by the Provincial Government had joined service voluntarily and had accepted the terms and conditions of their service, and they did not compete with the Senior Auditors of the Federal Government, therefore, they could not claim that they should be given perks and emoluments as the Senior Auditors of the Federal Government---Deputy Accountants employed by the Province had happily joined service and were enjoying the benefits of the same, and question of exploitation would only have arisen if they had been forcibly inducted into compulsory service---Provincial Government had to remain within its own budgetary constraints---Amounts paid by way of salaries (to Government employees), were extracted from the pockets of citizens by means of taxation---Province and its Government could genuinely come to the conclusion that they were not prepared to burden the people of the Province by imposing an extra levy on them, and it was not for the Service Tribunal to tell the Provincial Government to impose additional taxes/levies for the purpose of meeting the command of the Service Tribunal---Senior Auditors of the Federal Government (BPS-16) and Deputy Accountants of the Provincial Government (BPS-14) were not equally placed--- Both sets of employees were employed by different employers with different financial and other resources---Impugned judgment of the Service Tribunal proceeded on an erroneous premises, thus the same was set aside---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 25---Discrimination---Scope---Article 25 of the Constitution was only attracted where there was an apple-to-apple (like for like) comparison.

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

Ch. Amir Hussain, Senior Advocate Supreme Court and Muhammad Aslam Zar, Advocate Supreme Court for Respondents.

Date of hearing: 18th March, 2015.

2015 S C M R 945

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Sh. Azmat Saeed and Mushir Alam, JJ

Messrs SHAH NAWAZ KHAN AND SONS---Appellants

versus

GOVERNMENT OF N.-W.F.P. and others---Respondents

Civil Appeal No.548 of 2009, decided on 17th April, 2015.

(Against the 14-4-2009 of the Peshawar High Court Abbottabad Bench passed in Appeal No.70 of 2006)

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

----Ss. 107(1)(b) & 100---Constitution of Pakistan, Arts. 37(d) & 185---General provisions relating to appeals---Adjudication of appeals---Remand of case---Scope---Appellant impugned order of High Court whereby High Court disposed of the Regular First Appeal by remanding the case to Trial Court---Contention of appellant was that the case had been remanded twice before and was now being remanded to Trial Court for a third round of litigation---Held, that it was evident from the record that both parties were aware of their respective stance as set out in their pleadings and moreover evidence was also led in light thereof; and therefore, there was no justification for remanding the case to Trial Court for a third round of litigation---Supreme Court observed that the High Court had all material before it to decide the Regular First Appeal, set aside the impugned order of High Court and sent the matter to High Court with direction to decide the Regular First Appeal by itself---Appeal was allowed, accordingly.

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

----Ss. 107 & 100---Constitution of Pakistan, Art. 37(d)---General provisions relating to appeals---Adjudication of appeals---Remand of case---Inexpensive and expeditious justice---Scope---Remand should only be resorted to where it was absolutely necessary for fair and proper adjudication of a case---Unnecessary remand resulted in undue delay in cases and consequent prolonging of agony of litigants as well as clogging the court dockets and wastage of precious court time---Supreme Court observed that courts were to bear in the mind the constitutional imperative requiring the State to "ensure inexpensive and expeditious justice".

(c) Administration of justice---

----Courts were to bear in the mind the constitutional imperative requiring the State to "ensure inexpensive and expeditious justice".

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Mujahid Ali Khan, Additional A.-G. for Respondents Nos.1 - 2.

Khan Afzal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3.

Ex parte for Respondents Nos.4 to 7.

Date of hearing: 17th April, 2015.

2015 S C M R 948

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

GHULAM FAROOQ---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 131 of 2008, decided on 11th March, 2015.

(Against the judgment dated 23-11-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.1613 of 2001 and Murder Reference No.773 of 2001)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Quantum of sentence---Tripple murder---Conviction and sentence of death awarded to accused by Trial Court was maintained by High Court---Validity---Cruel and brutal manner in which accused had taken three lives was utterly offensive and his conduct had failed to evoke any sympathy---Accused had not only killed his sister for choosing a matrimonial partner on her own but also killed his brother-in-law and an infant daughter of his sister apart from killing a fully formed fetus inside the womb of his sister---One of the sentences provided by law for an offence of murder was death and accused deserved no less, particularly when he had killed not one but three innocent persons and also a fully formed fetus---Supreme Court maintained conviction and sentence awarded to accused by two courts below---Appeal was dismissed.

Muhammad Azman Bhatti, Advocate Supreme Court for Appellant.

Complainant in person.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 11th March, 2015.

2015 S C M R 950

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

COMMISSIONER OF INCOME TAX, COMPANY ZONE, ISLAMABAD---Appellant

versus

MUSLIM COMMERCIAL BANK LTD.---Respondent

Civil Appeals Nos.1319, 1320 and 1321 of 2007, decided on 24th March, 2015.

(Against the judgment dated 12-1-2007 of the Sindh High Court, Karachi, passed in Income Tax Appeals Nos.269/99, 270/99 and judgment dated 24-1-2007 passed in Income Tax Appeal No. 272 of 1999)

(a) Income Tax Ordinance (XXXI of 1979)---

----S. 65(2)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether on the facts and circumstances of the case, Income Tax Appellate Tribunal was justified in holding that requirement of S. 65(2) of Income Tax Ordinance, 1979, could not be fulfilled if administrative and legal approval for reopening of such assessment was obtained from Commissioner of Income Tax for assessment order passed by Inspecting Additional Commissioner Income Tax as Chairman of panel when IAC's consent for reopening was also there.

(b) Income Tax Ordinance (XXXI of 1979)---

----Ss. 15, 17, 32 & 65(2)---Computation of income---Exceptions---Income from securities and business or profession of assessee, a Bank---Income Tax Appellate Tribunal had held that interest on securities was assessable as ordinary business income and not as a separate head of income under S. 17 of Income Tax Ordinance, 1979---Order passed by Income Tax Appellate Tribunal was maintained by High Court---Validity---Exception was provided under S. 32 of Income Tax Ordinance, 1979, for computation of income set out in S. 17 of Income Tax Ordinance, 1979, which included S. 17(1)(a) of Income Tax Ordinance, 1979---High Court had correctly held that Banks were justified in adopting method of accounting which was hybrid and had been consistently used by Banks---Various heads of income were enumerated in S. 15 of Income Tax Ordinance, 1979, for the purpose of charge of tax and computation of total income---Interest on securities and income from business were classified as separate heads, respectively under S.15(b) & (d) of Income Tax Ordinance, 1979---Charging section for interest on securities was S. 17 of Income Tax Ordinance, 1979, and on income from business or profession was S.22 of Income Tax Ordinance, 1979---Income from the two heads were to be separately assessed regardless of whether the interest on securities was earned as a part of business of assessee---Appeal dismissed.

Commissioner Income Tax v. Habib Bank Ltd. 2014 SCMR 1557 fol.

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for appellant.

Shahid Hamid, Senior Advocate Supreme Court for Respondent.

Date of hearing: 24th March, 2015.

2015 S C M R 955

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

SHER BAHADUR---Appellant

versus

FAYYAZ and another---Respondents

Criminal Appeal 432 of 2014, decided on 19th March, 2015.

(On appeal from the judgment dated 27-5-2014 passed by the Peshawar High Court, Peshawar in Cr. A. No. 232 of 2011 and Cr. R. No. 89 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)--- Juvenile Justice System Ordinance (XXII of 2000), S.2(b)---Qatl-i-amd---Reappraisal of evidence---Juvenile, determination of--- Conviction and sentence of imprisonment for life awarded to accused by Trial Court was set aside by High Court on the ground of his being juvenile at the time of occurrence---Validity---High Court should not have taken the issue of lack of jurisdiction of Trial Court regarding actual age of accused so lightly---Reliance placed upon by High Court on two documents produced by accused was not safe for striking down the judgment of his conviction rather further inquiry in the matter was required to do complete justice between the parties---Supreme Court, with the consent of parties, set aside judgment passed by High Court and remanded the matter to High Court for its hearing afresh, after calling for ossification report etc. of accused through medical board of specialist doctors in the required field---Supreme Court directed verification of authenticity of two documents relied upon by accused before High Court and also providing fair opportunity to prosecution/complainant to rebut assertion of accused about his age---Appeal was allowed.

Noor Alam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondent No.1.

Zahid Yousaf Qureshi, Advocate Supreme Court for the State.

Date of hearing: 19th March, 2015.

2015 S C M R 957

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Sh. Azmat Saeed and Mushir Alam, JJ

HASSAN ALI GRAINS (PVT.) LTD. and others---Appellants

versus

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

Civil Appeals Nos.1553 to 1570 of 2007 and Civil Appeal No. 170 of 2009, decided on 6th April, 2015.

(Against the judgment dated 15-2-2007 of the High Court of Sindh, Karachi passed in Constitutional Petitions Nos.D-415/86, D-542/86, D-431/86, D-564/86, D-439/86, D-364/86, D-429/86, D-491/86, D-389/86, 395/86, 391/86, D-436/86, D-437/86, D-579/86, D-432/86, D-576/86, D-515/86 and D-516 of 1986)

Customs Act (IV of 1969)---

----S. 18D--- Levy of fee and service charges---Regulatory duty---Scope---Regulatory duty imposed by Federal Government---Validity---Regulatory duty which was imposed by government on 7-4-1986 and reduced on 17-4-1986 vide two notifications dated 7-4-1986 and 17-4-1986 respectively did not amount to a confiscatory levy---Appeal was dismissed.

Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176 ref.

Zahid Ibrahim, Advocate Supreme Court for Appellants (in C.As. 1553 - 1554 of 2007).

Mirza Hafeez-ud-Din, Advocate Supreme Court for Appellants (in C.A. 170 of 2009).

Nemo for Appellants (in other appeals).

Sajid Ilyas Bhatti, DAG and Saleem Shahzad, S.O. M/o Finance for the Federation.

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for F.B.R.

Raja Abdul Ghafoor, Advocate-on-Record for F.B.R. (in all cased except C.A. 170 of 2009).

Muhammad Naeem Qazi, Advocate Supreme Court for F.B.R. (in C.A. 170 of 2009).

Date of hearing: 6th April, 2015.

2015 S C M R 976

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Sh. Azmat Saeed and Mushir Alam, JJ

C.M.A. NO. 3854 OF 2014 IN SUO MOTU

CASE NO.3 OF 2009

(Implementation of the order dated 5-6-2013 passed in Suo Motu Case No.3 of 2009)

AND

C.M.A. NO. 4341 OF 2014 IN C.M.A. NO. 3854 OF 2014

IN SUO MOTU CASE NO. 3 OF 2009

(Concise statement on behalf of respondent-Bahria Town)

AND

AND C.M.A. NO. 1532 OF 2015 IN C.R.P. 245 OF 2013

IN SUO MOTU CASE NO. 3 OF 2009

(For restoration of CRP dismissed for non-prosecution)

C.M.A. No. 3854 of 2014 in SMC No. 3 of 2009, C.M.A. No. 4341 of 2014 in C.M.A. No.3854 of 2014 in SMC No. 3 of 2009 and C.M.A. No. 1532 of 2015 in C.R.P. 245 of 2013 in SMC 3 of 2009, decided on 9th April, 2015.

(a) Supreme Court Rules, 1980---

----O. IV, R. 30---Constitution of Pakistan, Art. 184(3)---Suo motu jurisdiction of Supreme Court---Advocate of the Supreme Court as counsel of one of the parties---Apprehension of bias of a Judge of the Supreme Court by said counsel---Untrue and incorrect statements by the Advocate---False assertions---Misconduct---Conduct unbecoming of an Advocate of the Supreme Court---Issuance of notice to Advocate of the Supreme Court to show cause why action envisaged under O. IV, R. 30 of the Supreme Court Rules, 1980 (including suspension/removal from practice) be not taken against him---Advocate of the Supreme Court in question made untrue and incorrect statements in his concise statement filed before the Supreme Court regarding bias of one of the Judges of the Supreme Court hearing the suo motu case---Advocate in question made (untrue) statements to the effect that the Judge of the Supreme Court in question refused to accept his request for general adjournment; that the Supreme Court fixed a date of hearing for the case knowing that he was not available; that the Judge of the Supreme Court in question repeatedly threatened an officer of the Government to take action against his client otherwise the officer's service may be harmed and that his client had serious apprehension that the Judge of the Supreme Court in question had already made up his mind to decide the case against the client in the absence of its counsel---Case record and orders passed in the suo motu case so far showed that such statements made by the Advocate of the Supreme Court in question were false and incorrect, and he had no valid or relevant explanations to justify the same---Advocate of the Supreme Court in question had also addressed a letter/application to the Chief Justice of the Supreme Court, seeking a change of Bench hearing the suo motu case, wherein unprofessional and irresponsible assertions were made---Said letter/application was also published by the press in newspapers---Apprehensions of the advocate's client were also based on false assertions---No serious apprehension could be founded on the basis of a false assertion---Not every subjective opinion of a litigant could be given credence---No valid basis existed for apprehension of the client which was wholly unfounded considering that the applications filed on his behalf had been dealt with in the usual course and in the usual manner extending indulgence and accommodation to him and his counsel (Advocate of the Supreme Court in question)---Advocate of the Supreme Court in question was guilty of misconduct and conduct unbecoming of an advocate ---Dignity and high standing of the legal profession and of Judges and courts had to be defended for the sake of the independence of the Judiciary and Bar and for the effective administration of justice--- Such course had to be adopted, if necessary, especially in the face of misconduct or conduct which was unbecoming of an advocate---Such conduct must be curbed if the honour and dignity of the Bar and Bench were to be preserved---Supreme Court, therefore, issued notice to the Advocate of the Supreme Court in question to show cause why action envisaged under O. IV, R. 30 of the Supreme Court Rules, 1980 (including suspension/ removal from practice) be not taken against him---Order accordingly.

(b) Constitution of Pakistan---

----Arts. 187 & 189---Orders of the Supreme Court, implementation of---All executive and judicial authorities were constitutionally obliged to implement Supreme Court's orders.

(c) Counsel---

----Professional duty of an advocate was that he was supposed to appear in court when a case was called.

(d) Supreme Court Rules, 1980---

----O. IV---Advocate-on-Record, duty of---Scope---Advocate-on-Record had to appear if the Advocate Supreme Court was unavailable and it was for the Advocate-on-Record to give intimation to the (Supreme) Court if adjournment had been granted to the counsel.

(e) Supreme Court Rules, 1980---

----O. IV---Advocate Supreme Court and Advocate-on-Record, absence of---Where Advocate Supreme Court and Advocate-on-Record were not present when the case was called it was for the (Supreme) Court to proceed in the matter or if considered appropriate, to adjourn the case.

(f) Bias in a Judge---

----Perception of bias---Scope---Perception of bias should be reasonable and objective.

Gen. (R) Parvez Musharraf v. Nadeem Ahmed Advocate PLD 2014 SC 585 ref.

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Appellant (in C.M.A. 1532 of 2015).

Dr. Shafiq ur Rehman in person Voluntary appeared.

Razzaq A. Mirza, Additional A.-G., Ch. Muhammad Ilyas, Secretary, Colonies, BOR, Sajid Zafar, DCO, Rawalpindi, Arif Raheem, ADC, Rawalpindi and Tasneem Ahmad Khan, A.C. Rawalpindi on Court's Notice.

Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Bahria Town.

Date of hearing: 9th April, 2015.

2015 S C M R 993

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

AHMED---Appellant

versus

The STATE---Respondent

Criminal Appeal No.372 of 2007, decided on 26th March, 2015.

(Against the judgment dated 23-1-2006 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 609 of 2001 and Murder Reference No. 565 of 2001)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Death row phenomenon--- Applicability---Unexplained delay in registration of FIR---Circumstantial evidence---Motive, failure to prove---Conviction and death sentence awarded by Trial Court to accused was maintained by High Court---Accused sought reduction in sentence on the plea that he had been in custody since year, 1996---Validity---Occurrence had taken place on 20-11-1996 but FIR was registered with a delay of four days without any plausible explanation for such delay---Prosecution failed to produce any eye-witness of murder in issue and it had squarely relied upon some pieces of circumstantial evidence---All pieces of evidence did not point towards culpability of accused and motive set up by prosecution remained far from being established beyond reasonable doubt---Some prosecution witnesses stated about alleged motive but they admitted before Trial Court in so many words that "they had no personal knowledge about alleged motive or details thereof and all they knew was that there was some ongoing dispute between accused and deceased on the issue of outstanding amount"---Such kind of evidence could not be accepted by any court of law to conclude that motive set up by prosecution was proved by it to the satisfaction of Court---Accused had already spent more than 18 years in jail in connection with the case---If accused was sentenced to imprisonment for life then after availing of requisite remissions he would have served out that sentence by now---Supreme Court maintained the conviction awarded to accused but converted death sentence to imprisonment for life---Appeal was allowed accordingly.

Khalid Iqbal v. Mirza Khan and another PLD 2015 SC 50 rel.

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

----Ss. 201 & 302---Causing disappearance of evidence and Qatl-i-amd---Conviction---Principle---Conviction for an offence under S. 201, P.P.C. cannot simultaneously be recorded with a conviction for an offence under S. 302, P.P.C.

Nasar Khan v. The State 2000 SCMR 130 rel.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 26th March, 2015.

2015 S C M R 997

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

KHYBER PAKHTUNKHWA BAR COUNCIL through Chief Secretary---Petitioner

versus

MUKHTAR AHMED KHAN ADVOCATE and others---Respondents

Civil Petition No. 1213 of 2014, decided on 3rd October, 2014.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 3-6-2014 passed in W.P. No. 1564 of 2011)

Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010---

----Rr. 28(f)(ii), (iii) & 55---Constitution of Pakistan, Art.25---Enrollment Fee, General Welfare Fund, Benevolent Fee and other charges---Discrimination---Advocate, enrolled in Province of Sindh from where he shifted to Province of Khyber Pakhtunkhwa was directed by Khyber Pakhtunkhwa Bar Council to deposit Rs.30,000 as Enrollment Fee, General Welfare Fund of Bar Council, Benevolent Fee and other charges as required by Rules---High Court, under its constitutional jurisdiction, declared Rr.28 & 55 of Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010 as discriminatory on the ground that same were not included in the Rules of other Bar Councils---Validity---Requirement of deposit of such amount was applicable even to those already enrolled as members of another Bar Council---Advocate could not dispute his obligation under Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010 to pay such fee and contributions---Supreme Court set aside the order passed by High Court which had misapplied Art. 25 of the Constitution---Appeal was allowed.

Syed Amjad Shah, Advocate Supreme Court for Petitioner.

Respondent No.1 in person.

Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court for Respondent No.2.

Muhammad Aqil, Advocate Supreme Court (Member Sindh Bar Council) for Respondent No.3.

Date of hearing: 3rd October, 2014.

2015 S C M R 1000

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ijaz Ahmed Chaudhry and Maqbool Baqar, JJ

PROVINCE OF PUNJAB through DFO, Forest Department, Attock---Petitioner

versus

MEMBER, FEDERAL LAND COMMISSION, ISLAMABAD and others---Respondents

Civil Petition No.92 of 2014, decided on 10th March, 2015.

(On appeal against the judgment dated 19-11-2013 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.3678 of 2001)

Land Reforms Act (II of 1977)---

----S. 17---Land resumed by Federal Land Commission---Transfer of such land to Provincial Forest Department vide mutation---Cancellation of mutation/transfer---Past and closed transaction---Scope---Under the Land Reforms Act, 1977, the land in question was resumed, whereafter vide a mutation it was transferred to the Provincial Forest Department---Subsequently, suo motu action was taken by the Federal Land Commission and the transfer of the resumed land to the Provincial Forest Department was cancelled---Legality---Without giving any valid reasons, the Member Land Commission proceeded to cancel a past and closed transaction whereby the land in question which was mutated in favour of the Provincial Forest Department was cancelled---No reasonable cause or justification existed for exercising suo motu jurisdiction for the purpose of cancelling a past and closed transaction in favour of the Provincial Forest Department---Cancellation of mutation was thus set aside and Supreme Court directed that land in question shall be put to use as forest land only---Appeal was allowed accordingly.

Mudassar Khalid Abbasi, A.A.-G., Shahzad Mohsin, Naib Tehsildar, Altaf Hussain, Patwari and Shahid Miskeen, LDC for Petitioner.

Hafiz Hifzur Rehman, Advocate Supreme Court for Respondent No.1.

Muhammad Waris Khan, Advocate Supreme Court for Respondents Nos.2 to 14.

Date of hearing: 10th March, 2015.

2015 S C M R 1002

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Qazi Faez Isa, JJ

IKRAMULLAH and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.70 of 2009 and 354 of 2012, decided on 13th April, 2015.

(Against the order dated 20-9-2007 passed by the Peshawar High Court, Peshawar in Criminal Appeals Nos.778 and 779 of 2006)

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Recovery of narcotic substance---Reappraisal of evidence---Chemical Examiner Report---Safe custody of narcotics---Proof---Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle---Validity---Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom---Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court---Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form"---If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as "conclusive" proof of recovery of narcotic substance from accused person---Investigating officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner---No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner---Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit---Prosecution failed to prove its case against accused persons beyond reasonable doubt---Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed.

Noor Alam Khan, Advocate Supreme Court for Appellant (in Cr. A. No. 70 of 2009).

Muhammad Javed Aziz Sandhu, Advocate Supreme Court for Appellant (in Cr. A. 354 of 2012).

Zahid Yousaf, Advocate Supreme Court for the State (in both cases).

Date of hearing: 13th April, 2015.

2015 S C M R 1006

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL PETITION NO.41 OF 2015

(On appeal from the order/judgment of the Islamabad High Court, Islamabad dated 4-12-2014 passed in I.C.A. No.523 of 2013)

AND

CIVIL PETITION NO. 66 OF 2015

(On appeal from the order of the Lahore High Court, Lahore dated 9-1-2015 passed in W.P. No. 85 of 2015)

SECRETARY ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD---Petitioner

versus

AFTAB AHMED MANIKA and others---Respondents

Civil Petitions Nos.41 and 66 of 2015, decided on 22nd April, 2015.

(a) Constitution of Pakistan---

----Arts. 212(2) & 199---Civil service---Promotion---Fitness of civil servant---Determination---Constitutional jurisdiction of High Court---Scope---Determination of fitness of civil servant for promotion has been excluded from jurisdiction of Service Tribunal---Ouster clause (2) of Art.212 of the Constitution does not extend to such matters---Constitutional jurisdiction of High Court is not ousted in matters pertaining to appointment of civil servant to a particular post or to be promoted to a higher grade.

Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment 2014 SCMR 817 rel.

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

----S. 9(1)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 2(a) & 6---ESTACODE, 2007 Edition, Vol. I, Sr.192(2)(b)--- Promotion--- Determination of fitness---Recommen-dations of Central Selection Board--- Intelligence reports--- Despite specific recommendations by Central Selection Board, Prime Minister returned cases of civil servants for reconsideration as there were intelligence reports against them---High Court in exercise of constitutional jurisdiction declared that appointing authority could not return the cases of civil servants as there were specific recommendations of Central Selection Board in their favour---Validity---Appointing authority had to make promotions in Basic Pay Scale 20 and 21 only upon recommendations of the Board; it did not provide in either of the provisions that recommendations of the Board were binding and consequently be returned by appointing authority only when procedure followed by the Board suffered from any factual or legal flaw---Supreme Court set aside the judgments passed by High Court and constitutional petitions filed by civil servants were dismissed---Supreme Court directed Central Selection Board to re-examine cases of civil servants on the basis of criteria already set for determining fitness or otherwise of civil servants for promotion without being influenced by observations made in the summary for the return of recommendations to the Board---Appeal was allowed.

Safaraz Saleem v. The Federation of Pakistan PLD 2014 SC 232; Concise Oxford English Dictionary 11th Edition, Revised; Black's Law Dictionary 6th Edition; Words and Phrases 2nd Edition, 2008; Islamic Republic of Pakistan v. Israrul Haq PLD 1981 SC 531; Bahadur Shah, Divisional Engineer Development II, I.T.R. Islamabad and others v. Pakistan through Secretary, Ministry of Communication and others 1988 SCMR 1769; Faris Rahman Khan v. Federation of Pakistan through Secretary Establishment Division 1995 SCMR 579; Lakhwinder Singh v. Union of India and others (2008) 7 Supreme Court Cases 648; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Zahir Raja v. Federation of Pakistan 2012 SCMR 971; Fazali Rehmani v. Chief Minister N.-W.F.P. PLD 2008 SC 769; Zafar Iqbal v. Director, Secondary Education, Multan Division 2006 SCMR 1427; Government of Pakistan through Establishment Division v. Hameed Akhtar Niazi PLD 2003 SC 110; Saleem Ullah Khan v. Shahid Hamid 2011 SCMR 788; Muhammad Azam v. Muhammad Tufail 2011 SCMR 1871; Habibullah Energy Limited v. WAPDA through Chairman and others PLD 2014 SC 47; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 Abu Bakar Siddique v. Collector of Customs, Lahore 2006 SCMR 705; Federation of Pakistan through Secretary M/o Law v. Sindh High Court Bar Association PLD 2012 SC 1067; Government of the Punjab v. S. Tassaduq Hussain Bokhari PLD 1986 SC 162; R.S. Mittal v. Union of India 1995 Supp (2) SCC 230; I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 and Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 ref.

Salman Aslam Butt, AGP, Waqar Rana, Additional AGP, Qari Abdul Rasheed, Advocate-on-Record, Mumtaz Ali Khan, JS Est. Div. and Shahbaz Kirmani, S.O. for Petitioner.

Ms. Asma Jahangir, Advocate Supreme Court assisted by Haris Azmat, Advocate for Respondents Nos. 1, 4-6, 8, 9 and 11 (in C.P. 41 of 2015).

Ms. Asma Jahangir, Advocate Supreme Court assisted by Haris Azmat, Advocate for Respondents Nos. 1 - 3 (in C.P. 66 of 2015).

Dates of hearing: 30th January and 9th February, 2015.

2015 S C M R 1040

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

The COMMANDANT, KHYBER PAKHTUNKHWA CONSTABULARY, HEADQUARTERS PESHAWAR and another---Appellants

versus

MUHAMMAD NASIR and others---Respondents

Civil Appeals Nos.1122, 1123, 1107 of 2013, 173 and 174 of 2015, decided on 31st March, 2015.

(On appeal from judgment dated 9-5-2013 of the Peshawar High Court, Peshawar, passed in W.Ps. Nos.2987, 2764 of 2011 and 818-P of 2012). And against judgment dated 10-9-2014 of the Peshawar High Court, Abbottabad Bench, passed in W.Ps. Nos. 3219 and 475-P of 2014)

Khyber Pakhtunkhwa Constabulary Rules, 1958---

----R. 18---Dismissal of employee---Departmental appeal---Procedure, failure to follow---Effect---High Court set aside dismissal order passed by authorities and reinstated the employee in service---Validity---High Court had observed in its judgment that de novo inquiries were conducted by authorities without following the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958--- Once High Court held that the procedure prescribed in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958, was not followed while dismissing the employee from service, it should have remanded the matter to department after reinstating the employee in service for de novo inquiry---Supreme Court remanded the matter to authorities and directed them to strictly follow the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958---Appeal was allowed accordingly.

I.G. Frontier Corps and others v. Ghulam Hussain 2004 SCMR 1397 and Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

Ms. Shireen Imran, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.1122, 1123 and 1107 of 2013).

Mian Shafaqat Jan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos.173 and 174 of 2015).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1-40 (in C.A. No. 1122 of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1-34 (in C.A. No. 1123 of 2013).

Abdul Latif Afridi, Advocate Supreme Court for Respondents Nos.1-18, 20-25, 27, 28, 30, 31, 33, 35, 37, 38, 40, 41, 43-51 and 53-65 (in C.A. No. 173 of 2015).

Abdul Latif Afridi, Advocate Supreme Court for Respondent No.1 (in C.A. No. 174 of 2015).

Date of hearing: 31st March, 2015.

2015 S C M R 1044

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Umar Ata Bandial, JJ

FARID BAKHSH---Appellant

versus

JIND WADDA and others---Respondents

C.A. No. 1797 of 2005, decided on 30th March, 2015.

(On appeal from the judgment dated 26-9-2005 passed by the Lahore High Court, Lahore in C.R. No. 641 of 1991)

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

----Art. 79---Execution of document---Proof---Words "two attesting witnesses at least"---Scope---Words "two attesting witnesses at least" show that calling two attesting witnesses for the purpose of proving execution of document is a bare minimum---Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution---Construing the requirement of Art.79 of Qanun-e-Shahadat, 1984, as being procedural rather than substantive and equating testimony of scribe with that of an attesting witness would not only defeat the letter and spirit of the Art. 79 but reduce the whole exercise of re-enacting it to a farce---Provision of Art.79 of Qanun-e-Shahadat, 1984, being mandatory has to be construed and complied with as such.

Nazir Ahmed v. Muhammad Rafiq 1993 CLC 257; Jagannath Khan and others v. Bajrang Das Agarwala and others AIR 1921 Calcutta 208; Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 and Jameel Ahmed v. Late Saifuddin through Legal Representatives 1997 SCMR 260 distinguished.

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

----Arts. 79 & 129(g)---Execution of document---Proof---Two attesting witnesses---Failure to call one witness---Presumption---Such failure in absence of any plausible explanation may also give rise to an adverse presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, against the person intending to prove the document.

Dil Murad and others v. Akbar Shah 1986 SCMR 306 distinguished.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs PLD 2011 SC 241 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell---Scribe, substitute of attesting witness---Judgment at variance---Effect---Plaintiff filed suit for specific performance of agreement to sell and during trial he produced one attesting witness and scribe of the agreement---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff---High Court in exercise of revisional jurisdiction set aside the judgment passed by Lower Appellate Court and restored that of Trial Court---Plea raised by plaintiff was that no fault could be found with the document at later stage when it was admitted in evidence without any objection and when judgments were at variance, findings of Lower Appellate Court were to be preferred over that of Trial Court---Validity---Testimony of scribe could not be equated with that of an attesting witness as both of them had signed the document in different capacity and with a different state of mind---Scribe did not meet the requirements of Art. 79 of Qanun-e-Shahadat, 1984---Scribe could be examined by the plaintiff for corroboration of evidence of attesting witnesses but not as a substitute therefor---At the time of cross-examining witness producing and exhibiting the document, defendant could not foresee or anticipate that the other attesting witness was not going to be called---High Court, in exercise of revisional jurisdiction, could have interfered with finding of Lower Appellate Court, which was the final Court of fact, only when the Court had handed down the finding without considering material parts of evidence on the record and relevant law in such behalf---Supreme Court declined to interfere in judgment passed by High Court as the same was based on correct appreciation of evidence and relevant law---Appeal was dismissed.

S.A.K. Rehmani v. The State 2005 SCMR 364; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Qadir Baksh through L.Rs. v. Allah Dewaya and another 2011 SCMR 1162 distinguished.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs PLD 2011 SC 241 rel.

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

----Art. 79---Death bed transaction---Execution of document---Proof---Beneficiary of document has to bring on record that the executant at the time of executing the agreement to sell suffered from a disease which became immediate cause of his death; that the disease he suffered from was of a nature which could induce imminent apprehension of death; and that the disease he suffered from incapacitated him from pursuing his ordinary activities.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28; Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650 and Rehmat Ali deceased through L.Rs. v. Mst. Karam Bibi and others 2006 SCMR 940 rel.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Appellant.

Mian Asif Mumtaz, Advocate Supreme Court for Respondents Nos.1-a, 2 and 3.

Date of hearing: 30th March, 2015.

2015 S C M R 1052

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

DEPUTY DIRECTOR/COLLECTOR CUSTOMS INTELLIGENCE AND INVESTIGATION, PESHAWAR---Appellant

versus

FARMAN ALI and others---Respondents

Civil Appeal No. 9 of 2006, decided on 9th April, 2015.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 25-3-2006 passed in W.P. No. 85 of 2000)

(a) Central Excise Act (I of 1944)---

----Ss. 9-A & 13---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether complaint mentioned in S. 9-A(6) of Central Excise Act, 1944, by which Special Judge, could take cognizance, was to be equated with "complaint" under S. 200, Cr.P.C. and thus procedure thereunder to be followed or charge sheet submitted by police officer under S. 173, Cr.P.C. as provided under S. 13(11) of Central Excise Act, 1944; whether in absence of express provisions in Central Excise Act, 1944, Central Excise Officer was precluded from registration of a case; whether High Court was correct in holding that in view of special procedure provided under S. 13 of Central Excise Act, 1944, for investigation of a crime, first information report could not be registered; whether registration of first information report could be declared illegal, when Central Excise Officer was empowered under S. 13(1) of Central Excise Act, 1944, to arrest a person without warrant and for investigation of a case to exercise powers conferred under Criminal Procedure Code, 1898, upon officer in charge of a police station; and whether Special Judge could not take cognizance of offences under S. 9-A(6) of Central Excise Act, 1944, upon complaint mentioned in S. 13(11) of Central Excise Act, 1944, even if first information report had been rightly held to have been registered without lawful authority.

(b) Central Excise Act (I of 1944)---

----S. 13---Inquiry into offence---Procedure---Comprehensive procedure has been provided under S. 13 of Central Excise Act, 1944, for inquiry into an offence committed under Central Excise Act, 1944, right up to filing of complaint before Special Judge.

(c) Central Excise Act (I of 1944)---

----S. 13(10)---Criminal Procedure Code (V of 1898), S. 154---Arrest and detention---Non-registration of FIR---Effect---Absence of FIR does not, in any way, take away or affect powers of Central Excise Officer to arrest an accused under Central Excise Act, 1944, to carry out inquiry into an offence and to file complaint before Special Court---Provision of S. 13(10) of Central Excise Act, 1944, in fact provides for its own Register called "Register for Arrest and Detention" in which details are to be mentioned---Form prescribed under Police Rules, 1934, for recording of FIR may not be used by Central Excise Officer for recording information regarding offence under Central Excise Act, 1944, its exclusion has no bearing on criminal proceedings.

(d) Central Excise Act (I of 1944)---

----S. 13(11)---Criminal Procedure Code (V of 1898), Ss. 173 & 200---Complaint to Special Judge---Format---Nature of complaint to be filed by Central Excise Officer to Special Judge for trial of accused, has been equated with police report submitted by officer in charge of police station under S. 173, Cr.P.C.---Such complaint is not to be treated as the one filed under S. 200, Cr.P.C., it is in the nature of police report (Challan) submitted by police under Criminal Procedure Code, 1898, and has all the trappings of such police report and Trial Court has to proceed upon it accordingly.

(e) Central Excise Act (I of 1944)---

----Ss. 9-A & 13---Arrest and detention---Inquiry into offence---Scope---Case registered against accused under Central Excise Act, 1944, was declared without lawful authority by High Court in exercise of its constitutional jurisdiction---Validity---Initiation of criminal proceedings, its investigation and trial was to be conducted in accordance with procedure laid down in S. 13 of Central Excise Act, 1944---Recording of information under S. 13(10) of Central Excise Act, 1944, in register of arrest and detention mentioning names of persons arrested, giving details of information regarding crime itself amounted to registration of a criminal case on the basis of which complaint could be filed before Special Court in the nature of police report under S.173, Cr.P.C.---Supreme Court modified judgment passed by High Court---Appeal was allowed.

Abdul Rauf Rohaila, Advocate Supreme Court for Appellant.

Isaac Ali Qazi, Advocate Supreme Court for Respondents Nos.1 and 2.

Waqar Ahmed Khan, Additional A.-G. Khyber Pakhtunkhwa for Respondent No.3.

Sohail Mehmood, DAG on Court's Notice.

Date of hearing: 27th January, 2015.

2015 S C M R 1060

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

SARHAD DEVELOPMENT AUTHORITY through Chairman---Petitioner

versus

Syed MUHAMMAD LATIF SHAH and others---Respondents

Civil Petition No. 84-P of 2015, decided on 25th March, 2015.

(On appeal from judgment dated 22-1-2015 of the Peshawar High Court, Peshawar, passed in W.P. No. 3258 of 2013)

Sarhad Development Authority Act (XI of 1973)---

----S. 29---Constitution of Pakistan, Art. 185(3)---Non-framing of rules---Service matter---High Court, in exercise of constitutional jurisdiction, struck down notification of promotion of employee against the post of General Manager (Administration) in Basic Scale 19---Validity---Government was required to frame rules pertaining to terms and conditions of services of officers and employees of Sarhad Development Authority---Such omission, prima facie, showed that government, in absence of proposed rules, was regulating service of the Authority by exercising its unstructured discretion in recruitment/ promotion of officers and employees in the Authority--- Supreme Court directed the government of Khyber Pakhtunkhawa to comply with provisions of S. 29 of Sarhad Development Authority Act, 1973--- Supreme Court declined to interfere in judgment passed by High Court as the same would perpetuate injustice---Petition for leave to appeal was dismissed in circumstances.

Muhammad Ijaz Sabi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th March, 2015.

2015 S C M R 1064

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Qazi Faez Isa, JJ

ABDUL GHAFFAR and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos. 589 of 2006, 130 of 2009 and 96 of 2011, decided on 23rd April, 2015.

(On appeals from the judgments, respectively dated 21-6-2004 in Crl. A. No. 480 of 2000, M.R. No. 614 of 2000, dated 28-3-2001 in Crl. A. No. 109-J of 1996, M.R. No. 28 of 1996, dated 25-5-2010 in Crl. A. No. 186 of 2005 and M. R. No.88 of 2005, of the Lahore High Court, Lahore)

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

----S. 338-E---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court only to consider "whether the compromise with an heir, and not all the heirs, of the victim-deceased could have an effect on the sentence of death imposed upon each convict by Trial Courts, which were upheld and affirmed by High Court, and whether such compromise merited reduction of each sentence to imprisonment for life."

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345---Death as Ta'zir---Compounding of offence---Principle---If a convict has been sentenced to death as Ta'zir then all legal heirs of deceased must enter into a compromise to enable compounding of the offence under S.345(2), Cr.P.C.

Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Muhammad Ahmad v. State PLD 2003 SC 583; Muhammad Ali v. State PLD 2004 Lah. 554; Abdul Jabbar v. State 2007 SCMR 1496 and Zahid Rehman v. State PLD 2015 SC 77 rel.

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

----S. 302(b)---Qatl-i-amd---Punishment as tazir---Phrase "having regard to the facts and circumstances of the case"---Scope---Law does not elaborate what facts and circumstances are required to be taken into account, therefore, in absence of statutory criteria, Supreme Court has been identifying the factors that attract punishment of death and those when lesser punishment of imprisonment for life is to be imposed.

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

----Ss. 302(b) & 338-E---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd---Reappraisal of evidence---Compounding of offence---Compromise with one legal heir---Sentence of death awarded to accused persons as Ta'zir by Trial Court for committing qatl-i-amd was maintained by High Court---Plea raised by accused persons was that they had entered into compromise with one of the legal heirs of deceased---Validity---Once it was established that offence had been committed by accused, the appropriate sentence was awarded to him/her, which in respect of qatl-i-amd as Ta'zir could be either death or imprisonment for life---Provision of S. 302(b), P.P.C. required that 'facts and circumstances of the case' be considered in determining appropriate sentence---Compromise with one or more heirs of victim would be amongst the facts and circumstances of the case that required to be taken into account in determining quantum of punishment but that in itself would not be the conclusive factor as all facts and circumstances of the case had to be considered---Merely because an heir had compromised with convict would not automatically result in imposition of lesser punishment of imprisonment for life---Supreme Court declined to reduce sentence of death awarded to accused persons by Trial Court, which were upheld and confirmed by High Court---Appeal was dismissed.

Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Muhammad Ahmad v. State PLD 2003 SC 583; Muhammad Ali v. State PLD 2004 Lah. 554; Abdul Jabbar v. State 2007 SCMR 1496 and Zahid Rehman v. State PLD 2015 SC 77 rel.

Riaz Ahmad v. State 2003 SCMR 1067; Niaz Ahmad v. State PLD 2003 SC 635 and Bashir Ahmed v. State 2004 SCMR 236 ref.

Sheikh Khizar Hayat, Senior Advocate Supreme Court and Chaudhry Munir Sadiq, Advocate Supreme Court for Appellant (in Cr. A. 589 of 2006).

M. Zaman Bhatti, Advocate Supreme Court for Appellant (in Cr. A. 130 of 2009).

Mrs. Farhat Zafar, Advocate Supreme Court for Appellant (in Cr. A. 96 of 2011).

Ahmed Raza Gillani, Ad. PG, Punjab for the State (in Crl. As. 589 of 2006 and 130 of 2009).

Zubair Ahmed Farooq, Ad. PG, Punjab for the State (in Cr. A. 96 of 2011).

Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for the Complainant (in Cr. A. 589 of 2006).

Chaudhry Farooq Haider, Advocate Supreme Court for the Complainant (in Cr. A. 96 of 2011).

Date of hearing: 1st April, 2015.

2015 S C M R 1071

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

EX-GUNNER MUHAMMAD MUSHTAQ and another---Appellants

versus

SECRETARY MINISTRY OF DEFENCE through Chief of Army Staff and others---Respondents

Civil Appeals Nos. 718 and 1366 of 2007, decided on 1st April, 2015.

(On appeal against the judgments dated 24-6-2005 and 19-4-2006 passed by the Lahore High Court, Rawalpindi Bench in Writ Petitions Nos.1762 of 2005 and 919 of 2006)

Pakistan Army Act (XXXIX of 1952)---

----S. 59---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Arts. 10(1) & 199(5)---Qatl-i-amd---Field General Court Martial---Defence counsel of choice of accused---Accused persons were convicted by Field General Court Martial for committing murders of their colleagues---High Court in exercise of constitutional jurisdiction declined to interfere in conviction and sentence awarded by Field General Court Martial---Plea raised by accused persons was that they were not allowed to engage counsel of their own choice during trials---Validity---Accused persons were members of Armed Forces, therefore, writ could not have been issued by High Court against Field General Court Martial or against appellate authority which confirmed conviction and sentences in view of Art. 199(5) of the Constitution---Field General Court Martial was excluded from the definition of "person" in Art. 199(1)(i) of the Constitution---High Court rightly declined to press into service its constitutional jurisdiction in respect of accused persons, who were found guilty by competent forum---Supreme Court did not find any mala fide on the part of prosecution or authority---Neither order passed by Field General Court Martial was a case of no evidence nor evidence led by prosecution was insufficient---Sufficient evidence was available to prove guilt of accused persons---In absence of any mala fide on the part of prosecution, conviction and sentences awarded to accused by Field General Court Martial could not be stamped to be coram non judice---Accused persons were defended by defending officers and in constitutional petition before High Court by one of the accused it had been specifically mentioned that he could not afford engaging a counsel due to his sheer poverty--- Supreme Court declined to interfere in judgment passed by High Court in exercise of constitutional jurisdiction---Appeal was dismissed.

Ghulam Abbas Niazi v. Federation of Pakistan PLD 2009 SC 866; Shabbir Shah v. Federation of Pakistan PLD 1994 SC 738; Rana Muhammad Naveed v. Federation of Pakistan 2013 SCMR 596; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286; Ex. PA 33756 Lieut Muhammad Asjid Iqbal v. Federal Government Secretary General Ministry of Defence, Rawalpindi 2005 PCr.LJ 632; Ghulam Abbas v. Federation of Pakistan through Secretary Ministry of Defence 2014 SCMR 849 and Federation of Pakistan through Secretary Defence v. Abdul Basit 2012 SCMR 1229 ref.

Col. (R) Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. 718 of 2007).

Rao Naeem Hashim Khan, Advocate Supreme Court for Appellant (in C.A. 1366 of 2007).

Sohail Mehmood, DAG for the State.

Date of hearing: 1st April, 2015.

2015 S C M R 1077

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

SOCHA GUL---Petitioner

versus

The STATE---Respondent

Crl. P.L.A. No. 15 of 2015, decided on 27th March, 2015.

(On appeal from judgment of Peshawar High Court, Peshawar dated 8-12-2014 passed in Crl. Misc. (BA) No. 1716-P of 2014)

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

----S. 9---Criminal Procedure Code (V of 1898), Ss. 497 & 498---Recovery of narcotic drugs--- Bail, grant of--- Categorizing of sentence---Neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by court at bail stage to enlarge an accused on bail in such crimes--- Such categorization amounts to pre-empting the mind of Trial Court, controlling its powers in the matter of sentencing accused and determining quantum of sentence upon his conviction.

Ghulam Murtaza v. The State PLD 2009 Lah. 362 distinguished.

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

----Ss. 9(c) & 51---Criminal Procedure Code (V of 1898), S. 497---Recovery of narcotic drugs---Bail, grant of---Four kilogram of Charas was recovered from accused during his personal search---Held, offences punishable under Control of Narcotic Substances Act, 1997, were by its nature heinous and considered to be the offences against society at large---Control of Narcotic Substances Act, 1997 itself had provided a note of caution under its S. 51 before enlarging accused on bail in ordinary course---Even on the basis of standards set out under S.497, Cr.P.C. for grant of bail to accused involved in offence under S.9(c) of Control of Narcotic Substances Act, 1997, accused charged with an offence, prescribing various punishments was not entitled for grant of bail merely on account of the nature or quantity of narcotic substance being four kilograms---Deeper appreciation of evidence was not permissible at bail stage and Trial Court could depart from normal standards prescribed by High Court in an earlier case and could award him any other legal punishment---Supreme Court declined to interfere in judgment passed by High Court, whereby accused was declined bail---Petition was dismissed in circumstances.

Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 ref.

Ghulam Murtaza v. The State PLD 2009 Lah. 362 distinguished.

Nadeem Ashraf v. State 2013 SCMR 1538 and Ameer Zeb v. State PLD 2012 SC 380 rel.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State/ANF.

Sajid Ilyas Bhatti, DAG on Court's Notice.

Date of hearing: 27th March, 2015.

2015 S C M R 1081

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

Syed HUSSAIN NAQVI and others---Appellants

versus

Mst. BEGUM ZAKARA CHATHA through LRs and others---Respondents

Civil Appeal No. 794 of 2006, decided on 14th April, 2015.

(On appeal against the judgment dated 2-6-2005 passed by the Lahore High Court, Lahore in Civil Revision No. 1340 of 1994)

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

----S. 54---Agreement to sell immoveable property, authenticity of---Proof---Vendee had produced the agreement to sell and the registered power of attorney in her favour---Scribe of said documents candidly stated that he wrote the agreement to sell on the instructions of the vendor in favour of vendee, in presence of the former; that the amount (sale consideration) was paid in his presence ; that general power of attorney was also scribed by him and the witness had signed the same in his presence---Person who had attested the agreement to sell and general power of attorney admitted that said documents were attested by him and vendor had signed in his presence---Scribe of documents and person who had attested the same were cross-examined at length but nothing favourable to the vendor could be brought on record---Vendor denied the execution of said documents but he never got his signatures verified by any hand writing expert---On the other hand, the vendee had applied for comparison of vendor's signatures before the Trial Court, but they could not be verified because the attendance of vendor could not be procured---Facts of the case established that vendor had agreed to sell the land to vendee and agreed amount of consideration was paid, possession was delivered and change of possession took place---Appeal filed by vendor was dismissed accordingly.

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

----S. 54---Immoveable property---Bona fide purchaser---Scope---Purchaser admitting having knowledge of pending litigation with respect to immovable property---Where a purchaser was aware of pending litigation (based on an agreement to sell) with respect to immoveable property, he should restrain himself from entering into a subsequent agreement with the vendor---In the event that such purchaser did enter into a subsequent agreement for the immoveable property he could not be termed as bona fide purchaser.

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

----S.19---Transfer of Property Act (IV of 1882), S. 54---Colony land---Contingent agreement to sell colony land---Applicability of S. 19 of Colonization of Government Lands (Punjab) Act, 1912 to such an agreement---Allotee/tenant of colony land, by way of an agreement to sell, handed over possession of such land to vendee and undertook to execute sale deed in favour of vendee on grant of proprietary rights---Question was as to whether such agreement to sell was void in terms of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Such contingent/prior agreement to sell did not necessitate obtaining prior permission to transfer rights in the land in terms of S. 19 of Colonization of Government Lands (Punjab) Act, 1912---Contingent/ prior agreement to sell colony land could not be termed as a sale deed, through which tenancy rights were transferred to the vendee---Such an agreement was merely an agreement to sell the specific performance of which was postponed to a date when the allottee/tenant had acquired proprietary rights---Contingent agreement to sell colony land did not fall within the mischief of S. 19 of Colonization of Government Lands (Punjab) Act, 1912---Appeal was dismissed accordingly.

Sher Muhammad Khan v. Ilam Din 1994 SCMR 470; Muhammad Anwar v. Muhammad Aslam 2012 SCMR 345; Abdul Jabbar v. Maqbool Jan 2012 SCMR 947; Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510; Abdul Jabbar v. Abdullah 2006 SCMR 1541; Nasir Ali Shah v. Ahmad Yar 2011 CLC 1566; Muhammad Aslam v. Muhammad Anwar 2006 YLR 2607 and Muhammad Aslam v. Ghulam Aslam 2002 MLD 1860 ref.

(d) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact recorded by subordinate courts---Interference in such concurrent findings by the Supreme Court---Scope---Supreme Court could not go behind concurrent findings of fact recorded by courts below unless it could be shown that the findings were on the face of it against the evidence or so patently improbable, or perverse that to accept same could amount to perpetuating a grave miscarriage of justice, or if there had been any misapplication of principles relating to appreciation of evidence, or finally, if the findings could be demonstrated to be physically impossible.

Muhammad Shafi and others v. Sultan 2007 SCMR 1602 ref.

Abid Hassan Minto, Senior Advocate Supreme Court for Appellants.

Syed Ali Zafar, Advocate Supreme Court for Respondents (1(a), (b)).

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Respondents (1(c), (d)).

M.A. Ghaffar ul Haq, Advocate Supreme Court for Applicants (in C.M.A. No. 3420 of 2010).

Date of hearing: 14th April, 2015.

2015 S C M R 1092

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

HIMESH KHAN---Petitioner

versus

The NATIONAL ACCOUNTABILITY BUREAU (NAB), LAHORE and others---Respondents

Civil Petition No. 1340 of 2014, decided on 14th April, 2015.

(On appeal from the judgment dated 26-6-2015 passed by the Lahore High Court in W.P. No. 13040 of 2012)

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

----Ss. 9(b) & 16---Criminal Procedure Code (V of 1898), S. 497---Accused facing charges under the National Accountability Ordinance, 1999---Bail grant, of---Grounds and scope---Lengthy incarceration in jail---Delay in conclusion of trial mainly attributable to the prosecution---Accused was behind bars for the last about five years---Trial of accused was not likely to be concluded in the next couple of months---Order sheets of Accountability Court showed that during majority of hearings accused was present along with his counsel and except on few occasions, adjournments had been sought by the co-accused for one reason or another and on some occasions due to absence of Presiding Officer or due to non-production of accused from the jail---Few adjournments of negligible numbers were sought by the accused and that too for the reason that his counsel was busy in superior courts in other cases---Delay in conclusion of trial could be mainly attributed to the prosecution and the co-accused, for which the accused could not be blamed---Speedy trial was the inalienable right of every person, therefore, even if the provision of S. 497, Cr.P.C. in ordinary course was not applicable to an accused person facing charges under National Accountability Ordinance, 1999, the broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period--- Accused person could not be left at the mercy of prosecution to rot in jail for an indefinite period---Present case was a fit case where bail could be granted, more so, when the co-accused persons, including real beneficiaries of the offence, were already granted bail much earlier in time---Accused was admitted to bail accordingly, and Supreme Court directed that the accused shall deposit his passport and other travelling documents with the court, and that his name shall be placed/retained on the Exit Control List.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353 and Anwar Saifullah Khan v. The State 2001 SCMR 1040 ref.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S. 497---Constitution of Pakistan, Art. 199---Accused facing charges under the National Accountability Ordinance, 1999---Bail grant, of---Scope---Although National Accountability Ordinance, 1999, did not recognize the grant of bail to an accused person facing charges under the said law, however such accused could be granted bail through constitutional jurisdiction of the High Court, provided his case was arguable for the purpose of grant of bail.

Khan Asfandyar Wali v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607 ref.

Azam Nazeer Tarar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mehmood Raza, Additional P.G. NAB for Respondents Nos.1-3.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondent No.6.

Date of hearing: 14th April, 2015.

2015 S C M R 1142

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

Mst. SUGHRA BEGUM and another---Appellants

versus

QAISER PERVEZ and others---Respondents

Criminal Appeals Nos.369 and 370 of 2010, decided on 17th April, 2015.

(On appeal from the judgment dated 13-4-2010 passed by the Lahore High Court, Rawalpindi Bench in Crl. Appeals Nos.3 of 2005, 15 of 2005 and Murder Reference No. 15 of 2005 and Crl. Revision No.10 of 2015)

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

----S. 302(b)---Qatl-i-amd---Ocular account---Significance---Ocular account in cases of qatl-i-amd played a decisive and vital role and once its intrinsic worth was accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution---To the contrary, once the ocular account was disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, probative value of the ocular account had to be seen in light of the facts and circumstances of each case.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Un-witnessed murder---False witnesses---Presence of main prosecution witnesses at scene of crime doubtful---Original address of purported eye-witnesses of the incident mentioned in their statements and the FIR was from a place which was far away from the crime scene, however it was added that they were (for the time being) residing in the area where the incident took place---Investigating officer had not taken the trouble/pain to verify the present place of residence of the purported eye-witnesses---Purported eye-witnesses also did not produce anything in black and white to show that indeed they were residing in the area where the incident took place---Necessary inference, in such circumstances, would be that the best evidence had been withheld from the court and the purported eye witnesses were chance witnesses, as at the fateful time they were residing several miles away from the place of crime---Noticeable delay in lodging the FIR gave rise to an inference that the purported eye-witnesses were not with the deceased at the time of incident---Purported eye-witnesses claimed that they took the deceased to the hospital---Invariable practice at hospitals was that whoever brought an injured to the hospital, whether relative or friend, his name and particulars were mentioned in a specific column, meant therefor, however, in the present case, Medico-legal Report of deceased showed that names of purported eye-witnesses had not been cited as companions at the hospital---Even in the inquest report, prepared at the time of recording the FIR, the two identifying witnesses shown were not the purported eye-witnesses---Such glaring omissions cast serious doubts about the presence of the purported eye-witnesses at the spot---Both the purported eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer did not take their clothes into possession---Had such clothes been sent to the Chemical Examiner for examination and grouping with the blood-stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two purported eye-witnesses---Omission to take clothes of purported eye-witnesses in possession struck at the roots of the case of the prosecution and spoke volumes about the dishonest and false claim of the said witnesses---Present crime was an witnessed crime---Purported eye-witnesses were false witnesses whose testimony was not corroborated by a single shred of evidence---Appeal was allowed accordingly and accused was acquitted of the charge of murder.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Motive unproved---Case of marriage without consent---Motive set up by the prosecution was that deceased had married daudgher of co-accused without his consent, therefore, five to six years after the marriage, deceased was allegedly murdered on the instigation of the co-accused---Prosecution had not alleged that daughter of co-accused was abducted or she had eloped with the deceased 5/6 years prior to the occurrence---Motive set up by the prosecution was not only sketchy, shaky and feeble but also not believable because during the long period of 5/6 years no unpleasant incident took place between the parties and no criminal case was registered---According to the motive set up by prosecution revenge should have been taken at the very beginning (of the marriage)---After the deceased and his wife were blessed with a son and a daughter, it did not seem plausible, as to why co-accused decided to ruin the life of his own daughter at such belated stage, rendering his grandchildren orphans and his daughter a widow---Wife of deceased was also withheld from the court and she was not cited as a witness to substantiate the motive set up by the prosecution---Motive in the present case was not established in a fair and legal manner---Appeal was allowed accordingly and accused was acquitted of the charge of murder.

(d) Criminal trial---

----"Chance witness"---Meaning---Evidence of chance witness, reliance upon---Scope---Chance witness, in legal parlance was a witness who claimed that he was present at the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot, but at a place where he resided, carried on business or ran day to day affairs---Testimony of chance witness, in such context, was ordinarily not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---In normal course, the presumption under the law that would operate would be that such witness was absent from the crime spot---In rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind of his presence on the crime spot were put forth, when the occurrence took place, otherwise, his testimony would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

(e) Criminal trial---

----Conviction---Evidence---Rule of consistency---Accused convicted on same evidence that was not believed qua acquitted co-accused---Propriety---In the absence of strong corroboratory evidence, the accused could not be convicted on the same quality of evidence, which was disbelieved qua the co-accused---When case of an accused was not distinguishable from that of the acquitted co-accused and the evidence was indivisible in nature then in the absence of strong corroboratory evidence, coming from independent source, the same could not be made basis for conviction qua the accused.

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

(f) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Reappraisal of evidence---Appeal against acquittal filed before the Supreme Court---Acquittal of accused based on concurrent findings of High Court and Trial Court---Interference in such findings by the Supreme Court---Scope---On acquittal, an accused person earned twofold innocence particularly, in the case when there were concurrent findings to such effect by the Trial Court and the Court of First Appeal (High Court)---Unless such concurrent findings of the two courts below were found perverse, fanciful, arbitrary and were based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same on basis that on reappraisal another view might be possible---Sanctity was attached under the law to such concurrent findings in ordinary course.

(g) Criminal trial---

----Evidence--- "Corroboratory evidence"---Witness---Corroboration of a witness testimony from an independent source---Corroboratory evidence meant evidence of someone else other than the eye-witness whose evidence was needed to be corroborated---Eye-witnesses could not corroborate themselves but corroboration must come from an independent source--- Corroboratory evidence must come from an independent source of unimpeachable nature to lend support or to supplement the ocular testimony of the eye-witnesses.

(h) Words and phrases---

----"Corroborating evidence"---Meaning.

Black's Law Dictionary, 9th Edition ref.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Police documents---Interpolation and over-writing---Crime empties---Entries in daily diary of police station regarding depositing of crime empties in "Malkhana" containing over-writing, interpolation and back-dating--- Effect--- Such entries would be doubtful and would corrupt the course of entire investigation---Ballistic Expert's report would also lose its evidentiary value in such circumstances---Appeal was allowed accordingly and accused was acquitted of the charge of murder.

Muhammad Sharif v. The State 1980 SCMR 231 ref.

Sheikh Zamir Ahmed, Senior Advocate Supreme Court for Appellant (in Crl. A. 369 of 2010).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Appellant (in Crl. A. 370 of 2010) and Respondent (in Crl. A. 369 of 2010).

Ch. Muhammad Waheed Khan, Additional P.G. Punjab for the State.

Date of hearing: 18th March, 2015.

2015 S C M R 1172

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Ejaz Afzal Khan and Umar Ata Bandial, JJ

MANSOOR SHARIF HAMID and others---Appellants

versus

SHAFIQUE REHMAN and others---Respondents

Civil Appeal No. 620 of 2006, decided on 24th February, 2015.

(On appeal from the judgment dated 11-7-2005 passed by High Court of Sindh, Karachi in Const. P. 1207 of 2004)

(a) Karachi Development Authority Order (V of 1957)---

----Arts. 40 & 52-A---Housing scheme---Amenity plot---Layout plan of housing scheme, alteration/amendment in---Relocation of amenity plot within the housing scheme at planning stage of the scheme and before its public advertisement---Permissibility---Present case was a case of relocation rather than conversion of an amenity plot at the embryonic stage of development of the scheme---When the disputed amendment in the layout plan was approved for relocating the amenity plot, the scheme was still at the planning and project implementation stage and the infrastructure and facilities of the housing scheme had not been implemented and its plots had not been announced for sale---Residents objecting to the amendment in the layout plan were neither residents nor owners of property in the housing scheme at the time when the layout plan was amended---Disputed relocation of the amenity plot did not eliminate or reduce the amenity area but actually increased its size from 1200 sq. yards to 2000 sq. yards---Nothing on record suggested that the amended layout plan was imbued with finality because neither was it notified under Art. 52-A(1) of the Karachi Development Authority Order, 1957, nor was it represented or was advertised to the public for securing the sale of plots in the scheme---Amendment in the layout plan, that was neither notified nor executed or represented to the public, could not become basis for asserting third party's vested rights---Relocation of the disputed amenity plot from one commercial area to another within the settlement scheme fully complied with the relevant regulations prescribing land usage ratios reserved for commercial areas and also for amenity plots in the housing settlement in question---Article 52-A of the Karachi Development Authority Order, 1957, was not applicable to the amended layout plan in the present case---Supreme Court observed that judicial intervention was not required in the present case, however, it was without prejudice to the enforcement of Arts. 40 & 52-A of the Karachi Development Authority Order, 1957, by residents/owners from the public against amendments made after the notification of the scheme's layout plan or the acquisition of proprietary interest by the objecting members of the public in any plot neighbouring the disputed commercial plot or any changes made to an amenity plot after amendment of Art. 52-A of Karachi Development Authority Order, 1957 [by way of Karachi Development Authority (Sindh Amendment) Act, 1994]--- Appeal was allowed accordingly.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512 and Javed Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 ref.

(b) Karachi Development Authority Order (V of 1957)---

----Art. 52-A---Housing scheme---Infrastructural facilities---Amenity plot---Law restricting conversion of residential/amenity plots to commercial use, application of---Scope---Law restricting conversion of land usage in housing schemes was not to be applied rigidly and pedantically but was meant to protect the public interest and public convenience---Provision and preservation of suitable infrastructure in target area of a development scheme was a public interest requirement of the law---Infrastructural facilities of a housing scheme or society like electricity, water, gas, roads, sewerage, etc. could be overburdened dramatically when land reserved for residential purposes was converted to commercial use---Equally, public interest suffered through deprivation when amenity plots were converted to other use---Irregular and unlawful conversion of plot usage created undue congestion and load on the infrastructure and facilities of a housing scheme which put the entire community to injury and loss---To prevent such congestion was the primary consideration of the court in ordering the strict enforcement of building and land usage laws---However, in a case where the relocation (as against elimination or curtailment) of an amenity plot in a scheme took place prior to or during the stage of implementation of its infrastructural provisions or before representation to or use by the public, the changes made in the layout plan should not injure public interest because such proposed changes could anticipate and cater any increased requirements resulting from the relocation by making adjustments in the design and planning of the infrastructural provisions of the scheme.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 ref.

Khalid Anwar, Senior Advocate Supreme Court and Afsar Abidi, Advocate Supreme Court for Appellants.

Syed Jamil Ahmed, Advocate Supreme Court for Respondent No.10.

Ex parte for Respondent No.3.

Nemo for remaining Respondents.

Date of hearing: 24th February, 2015.

2015 S C M R 1186

[Supreme Court of Pakistan]

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

Ch. ZAWWAR HUSSAIN WARRAICH---Appellant

versus

MUHAMMAD AAMIR IQBAL and others---Respondents

Civil Appeal No. 1081 of 2013, decided on 25th November, 2014.

(Under section 67(3) of the Representation of Peoples Act, 1976 against the order dated 9-7-2013 of the Election Tribunal, Multan, passed in Election Petition No. 16/13 ECP 2/13)

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

----Ss. 55(3) & 63(a)---Verification of election petition---Affidavit of petitioner---Election Tribunal dismissed election petition for having no verification at the foot of petition---Validity---Affidavit was filed along with election petition and had been duly attested by Oath Commissioner---Such was sufficient compliance of provision of S.55(3) of Representation of the People Act, 1976 and penalty under S. 63(a) of Representation of the People Act, 1976, was not attracted---Supreme Court set aside the judgment passed by Election Tribunal and remanded election petition for decision---Appeal was allowed.

Zaffar Abbas v. Hassan Murtaza PLD 2005 SC 600 fol.

Rana Asif Saeed, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant.

Mian Abbas, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 - 18.

Date of hearing: 25th November, 2014.

2015 S C M R 1188

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J. and Amir Hani Muslim, J

The DIRECTOR-GENERAL, NATIONAL COMMISSION FOR HUMAN DEVELOPMENT and another---Petitioners

versus

AMBREEN ANSARI and another---Respondents

Civil Petition No. 257 of 2015, decided on 22nd April, 2015.

(On appeal from order dated 23-12-2004 passed by the High Court of Sindh, Karachi, in C.P. D-2145 of 2014)

National Commission for Human Development Ordinance (XXIX of 2002)---

----S. 22---National Commission For Human Development Employees' Service Rules, 2006, R. 12.02---Constitution of Pakistan, Arts. 185(3) & 199---Termination of service---Procedural requirements, non-fulfilling of--- Constitutional petition before High Court---Maintainability---Termination of respondent was set aside by High Court in exercise of constitutional jurisdiction---Validity---Order terminating services of respondent was in complete disregard of procedural requirements as provided in R. 12.02 of National Commission For Human Development Employees' Service Rules, 2006, and violative of principles of natural justice---Supreme Court declined to interfere in judgment passed by High Court in exercise of constitutional jurisdiction---Petition was dismissed.

Pakistan Defence Officer's Housing Authority v. Lt. Col. Jawaid Ahmed 2013 SCMR 1707 fol.

S. A. Mehmood Khan Saddozai, Advocate Supreme Court, Ms. Robina Mehmood Khan Saddozai, Advocate Supreme Court and Ch. Akhter Ali, Advocate-on-Record for Petitioners.

Bhajandas Tejwani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

Date of hearing: 22nd April, 2015.

2015 S C M R 1230

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Mushir Alam, JJ

Messrs FAROOQ GHEE AND OILS MILLS (PVT.) LTD.---Petitioner

versus

REGISTRAR OF TRADE MARKS, TRADE MARK REGISTRY and others---Respondents

Civil Petitions Nos.2066 to 2068 of 2013, decided on 20th January, 2015.

(Against judgment dated 12-9-2013 of High Court of Sindh at Karachi, passed in Miscellaneous Appeals Nos.1, 2 and 3 of 2011)

(a) Trade Marks Act (V of 1940)---

----S. 14---Trade mark, nature of---Scope---Registration of trade mark was not restricted to one word, but it may comprise of composite and/or composition of common to use and/or invented words, coupled with numerical, device, diagram, picture and or any image etc. and/or any combination thereof.

(b) Trade Marks Act (V of 1940)---

----S. 10---Trade mark---'Dominant feature' of a trade mark---Certain trade marks carried one or more prominent features that clearly distinguished goods of one proprietor from their competitors dealing in similar goods---Such distinguishing feature in parlance of intellectual property was termed as 'dominant feature'.

(c) Trade Marks Act (V of 1940)---

----Ss. 8, 10(1) & 14(1)---Constitution of Pakistan, Art. 185(3)---Trade mark, registration of---Similarity in name---Dominant feature of trade mark---Scope---Addition of prefix to a trade mark---Trade marks "HAYAT" and "FAROOQ'S Hayat"---Respondent company applied for registration of the trade mark "HAYAT", while petitioner-company had applied for the trade mark "FAROOQ'S Hayat"---Contention of petitioner-company that the trade marks "HAYAT" and "FAROOQ'S Hayat" were quite distinct and dissimilar and there was no likelihood of confusion and/or deception; that use of prefix FAROOQ'S, the trading name of the petitioner-company to the word 'Hayat', distinguished petitioner's goods from that of respondent-company---Validity---Trade mark "HAYAT" in Arabic, Urdu and English language was used by the respondent-company since 1990 in overseas market and also in Pakistan---Trade mark "HAYAT" was displayed on goods of respondent-company with pictures of vegetables, poultry etc. laid in a peculiar fashion---Petitioner-company had adopted the mark "FAROOQ's Hayat" for same class of goods, by adding "FAROOQ'S" printed in small script as a prefix to the striking and/or dominating feature "HAYAT"---Merely adding a prefix and/or suffix to an already existing trade mark would not save the petitioner-company from the clutches of S. 8 of the Trade Marks Act, 1940, which prohibited registration of a trade mark or a part of trade mark, which was "likely to deceive or cause confusion"---Trade mark "FAROOQ'S Hayat" adopted by petitioner-company encompassed the mark "HAYAT", which was the striking or dominating feature of the trade mark of respondent-company---Trade mark "HAYAT" was already in use and associated with respondent-company since 1990---Adoption of dominant feature "HAYAT" by petitioner-company was not only strikingly similar but was identical---Prefix "FAROOQ'S" as used by the petitioner-company did not eclipse, over shadow or obscures the dominating mark "HAYAT" in a way that may distinguish its goods with that of the respondent-company---Allowing registration of petitioner-company's competing trade mark would not only encourage unscrupulous traders to steal someone else's goodwill and (intellectual) property, but at the same time unwary purchaser would be exposed to more than reasonable probability of confusion and deception---Application filed by petitioner-company for registration of trademark "FAROOQ'S Hayat" had correctly been dismissed by the Registrar of Trade marks---Civil petition for leave to appeal was dismissed accordingly.

Ekhlas Ahmed v. Dae Health Laboratories Limited London 1980 SCMR 625 distinguished.

Uniliver Ltd. v. Sultan Soap Factory PLD 1991 SC 939 ref.

(d) Trade Marks Act (V of 1940)---

----Ss. 8 & 10---Trade Marks Ordinance (XIX of 2001), Preamble---Trade mark, purpose of---Goodwill, protection of---Trade Marks Act, 1940, and Trade Marks Ordinance, 2001, not only protected consumers, but also traders who adopted a particular trade mark, which distinguished their goods, products and services from other competing traders, producers and service providers---Both the laws provided a mechanism, to protect such trade mark and forbade anyone attempting to appropriate to itself and/or to thrive on the goodwill and reputation created by another and/or to deceive a customer in assuming and/or believing that the goods, merchandise and/or services reputed to belong or associated with someone else were his or associated therewith---Whether such representation and/or assumption was fraudulent or not was of no consequence---Law protected honest traders, encouraged due observance of fair play, moral and ethical values in trade and business practices---Courts of law always frowned on unfair trade and business practice, that may tend to encourage malpractice, and/or usurpation of goodwill and market created by someone else---Such wrongdoing could not be termed anything short of robbing someone of his hard earned goodwill and/or rights in (intellectual) property.

(e) Trade Marks Act (V of 1940)---

----Preamble---Copyright Ordinance (XXXIV of 1962), Preamble---"Trade mark right"--- "Copyright"--- Distinction--- Practice of abusing/infringing a trade mark under the garb of copyrights deprecated---Copyright laws aimed to protect original works of art or creative articulation (may be of a trademark) in any tangible medium of expression, whereas, trademark was associated with the goods for the purpose of indicating or so to indicate a connection in the course of trade between the goods and some person having the rights, either as a proprietor or as registered user, to use or apply the trade mark on his goods---Trade Marks Act, 1940 protected the proprietor to use the trade mark on his goods, and prevented other competitors from using and applying identical and/or confusingly similar trade mark on their goods of similar class or description---No prohibition existed under the Trade Marks Act, 1940, for the competitors/traders from making, producing or marketing same or similar goods, and the only restriction placed was on the use and/or adoption of same or deceptively and/or confusingly similar trade mark---Trader may make or market or sell same or similar category of goods falling in same class but under a different brand name or trade mark that clearly distinguished its goods from same category or class of goods---Copyright material could not be allowed to be used as an alternate and/or in substitution for the trade mark, unless, of course, such copyright in the artistic work was also registered under the Trade Marks Act, 1940---Practice of using copyright as a substitute for the trade mark was deprecated by the courts (in Pakistan) and defence of an infringer of trade mark resting on registration of copyright had been sternly rejected in a large number of cases.

Tapal Tea (Pvt.) Ltd. v. Shahi Tea Co. 2002 CLD 1113; Pak Drug House v. Rio Chemical 2003 CLD 1531; Messrs ADT Services AG v. ADT Pakistan (Pvt.) Ltd. 2005 CLD 1546 and Muhammad Wahid v. Adnan Memon 2010 CLD 450 ref.

Syed Arshad Hussain Shah, Advocate Supreme Court for Petitioner (in all cases).

Munawar Ghani, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 20th January, 2015.

2015 S C M R 1239

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Gulzar Ahmed and Maqbool Baqar, JJ

The FEDERATION OF PAKISTAN and others---Appellants

versus

Messrs DELTA INNOVATIONS LTD.---Respondent

Civil Appeal No. 1125 of 2007, decided on 21st April, 2015.

(On appeal against the judgment dated 18-1-2005 of the High Court of Sindh, Karachi passed in C.P. No. D-516 of 2004)

Customs Act (IV of 1969)---

----S. 18---Pakistan Customs Tariff, Headings 87.11 & 87.14---S.R.O. 436(I)/2001 dated 18-06-2001---Parts/components imported for manufacture and assembly of motorcycle---Customs duty, determination of---Manufacturer in question, which imported such parts/components, contended that the same were amenable to customs duty @ 25% ad-voleram under PCT 87.14---Contention of customs authorities that customs duty on such components was 90% as prescribed under PCT 87.11---Validity---Consignments for parts/components imported for manufacture and assembly of motorcycle were amenable to customs duty @ 90% under PCT Heading 87.11, however vide S.R.O. 436(I)/2001 dated 18-6-2001, 30% exemption on such duty was provided---To avail the 30% exemption under the said S.R.O., a recognized assembler had to obtain an approved deletion programme from the Engineering Development Board (EDB), which programme was devised after a survey of the manufacturing facility by the Federal Board of Revenue, whereupon a survey certificate was issued---Amongst the various conditions prescribed under the said S.R.O., was the condition that the assembler/manufacturer shall chalk out an indigenization programme spreading over a maximum period of five years, within which period, it shall achieve such minimum indigenization of the manufacture of the vehicle as approved by the indigenization committee of the EDB, and that in case of any default in the indigenization programme, the components imported shall attract the (full) statutory duty chargeable on relevant vehicles---Supreme Court remanded the case to the Federal Board of Revenue and directed that the concession under S.R.O. 436(I)/2001 dated 18-6-2001, shall only be available to the manufacturer in question if it fully adhered to the terms and conditions therein---Order accordingly.

Dr. Farhat Zaffar, Advocate Supreme Court, Raja M. Iqbal, Advocate Supreme Court, Asaf Fasihuddin Verdak, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Tariq Javed, Advocate Supreme Court for Respondent.

Date of hearing: 21st April, 2015.

2015 S C M R 1243

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

Dr. PIR MUHAMMAD KHAN---Appellant

versus

KHUDA BUKHSH and others---Respondents

Civil Appeal No.503 of 2006, decided on 24th March, 2015.

(On appeal from judgment of Peshawar High Court, Peshawar dated 20-2-2006 passed in R.F.A. No.177 of 2003)

(a) Islamic Law---

----Pre-emption---Suit for possession through pre-emption---Talb-i-Muwathibat and Talb-i-Ishhad ("talbs"), particulars of---Non-disclosure of material particulars of talbs in the pleadings---Lack of promptness in making talbs---Suit for possession through pre-emption was instituted by the pre-emptors on 25-2-1992, when there was no statutory law of pre-emption in force in the area where suit land was situated, and pre-emption proceedings were regulated under the general principles of Islamic Law of pre-emption---Pre-emptors submitted two lists of witnesses, first after the framing of issues, and second during post remand proceedings in the suit---Both lists contained names of two different sets of witnesses---Surprisingly, name of the two witnesses of Talb-i-Muwathibat and Talb-i-Ishhad did not appear in the first list of witnesses submitted by the pre-emptors---Even the second list of witnesses submitted by the pre-emptors did not contain name of one of the witnesses of Talb-i-Muwathibat and Talb-i-Ishhad, who only surfaced at the time of deposing in the witness box---Such fact alone was sufficient to show that introduction of their names as the witnesses of Talb-i-Muwathibat and Talb-i-Ishhad was an afterthought and for such reason alone names of said two witnesses were also withheld by the pre-emptors in their pleadings---Such admitted facts from the case record were fatal to the claim of the pre-emptors as regards their right of pre-emption under the general principles of Islamic Law---Evidence on record also showed that there were material contradictions as regards the pre-emptors' claim of acquiring knowledge of sale qua making Talb-i-Muwathibat and Talb-i-Ishhad, which shortcomings could not be lightly brushed aside---Pleadings of the pre-emptors in their suit lacked material particulars, which were required to be disclosed/unfolded in the plaint to give a fair chance to the vendee to put up his defence--- Apart from non-disclosure of the time, date and place of making Talb-i-Muwathibat and Talb-i-Ishhad, the names of the two witnesses of Talb-i-Ishhad were also not disclosed by the pre-emptors in their pleadings---Non-disclosure of such material particulars at different stages of the proceedings was not a mere mistake or oversight but a deliberate act of the pre-emptors with some ulterior motive, which was fatal to their claim of pre-emption---Moreover, Talb-i-Muwathibat and Talb-i-Ishhad were not made by the pre-emptors in the required manner of vigilance and promptness---Suit for pre-emption was dismissed accordingly.

Sher Muhammad v. Ahmad AIR 1924 Lahore 380; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 SC(AJ&K) 55; Ditta Khan v. Muhammad Zaman 1993 MLD 2105; Fazal-ur-Rehman v. Zavedi Jan 2005 CLC 1415; Daud Shah v. Waris Shah 2014 SCMR 852 and Muhammad Hanif v. Tariq Mehmood 2014 SCMR 941 distinguished.

(b) Islamic Law---

----Pre-emption---Suit for possession through pre-emption---Talb-i-Muwathibat and Talb-i-Ishhad---"Islamic law" and "statutory law", comparison between---Under statutory law of pre-emption furnishing the date, time and place in the plaint was necessary to establish performance of Talb-i-Muwathibat and Talb-i-Ishhad---Principles of Islamic Law of pre-emption, which was the original source of statutory law on the subject, set out equally high standards for making Talb-i-Muwathibat and Talb-i-Ishhad, as prescribed under the statutory law---For making valid demands of Talb-i-Muwathibat and Talb-i-Ishhad the language and legal requirements under statutory law and Islamic law were substantially one and the same, except that under the statutory law condition of written notice of Talb-i-Ishhad, had been added, which of course was not the requirement under the Islamic Law of pre-emption.

Muhammad Ali v. Mst. Humera Fatima and 2 others 2013 SCMR 178; Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan v. Mst. Sahib Jamala PLD 2005 SC 977 ref.

(c) Islamic Law---

----Pre-emption---Suit for possession through pre-emption---Making of Talb-i-Muwathibat and Talb-i-Ishhad through special attorney---Document of power-of-attorney contained no specific delegation of power in favour of attorney for exercising the right of pre-emption over suit land on behalf of the pre-emptors---Effect---Special attorney in such circumstances could not have made the Talb-i-Muwathibat and Talb-i-Ishhad on behalf of the pre-emptors---For all intents and purposes no right of pre-emption was legally exercised on behalf of pre-emptors in the present case---Moreover, the said attorney also did not bother to appear in the witness box to offer himself to the test of cross-examination as regards his purported authority to exercise right of pre-emption on behalf of pre-emptors---Withholding of such evidence by the pre-emptors had not been explained anywhere, which gave an adverse presumption as regards the merits of their claim of making Talb-i-Muwathibat and Talb-i-Ishhad, strictly as mandated under the provisions of Islamic Law---Suit for pre-emption was dismissed accordingly.

(d) Suits Valuation Act (VII of 1887)---

----Preamble---Suit regarding property---Appeal, filing of---Pecuniary jurisdiction of Appellate Court---Valuation of suit property in the plaint---For the purpose of ascertaining the pecuniary jurisdiction (of the Appellate Court), it would be the valuation shown in the plaint which would be material for such purpose.

Qazi Muhammad Anwar, Senior Advocate Supreme Court, Sher Muhammad Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos.1 - 5.

Ex parte for Respondents Nos.6 - 7.

Date of hearing: 24th March, 2015.

2015 S C M R 1257

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

Pir IMRAN SAJID and others---Appellants

versus

MANAGING DIRECTOR/GENERAL MANAGER (MANAGER FINANCE) TELEPHONE INDUSTRIES OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1359 to 1363 of 2014, decided on 18th May, 2015.

(On appeal from the judgment dated 24-4-2014 of the Peshawar High Court, Abbottabad Bench passed in Writ Petitions Nos.276-A to 280-A of 2014)

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition before High Court---Maintainability---"Person" performing functions in furtherance of the affairs of the Federation---"Function test"---Telephone Industries of Pakistan, employees of---Employees filing constitutional petition seeking relief against Telephone Industries of Pakistan---Contention of Federal Government was that Telephone Industries of Pakistan was a private limited company, therefore, constitutional petition filed by the employees was not maintainable---Validity---Telephone Industries of Pakistan was wholly owned, controlled, managed and financed by the Federal Government and was performing functions in furtherance of the affairs of the Federation---Status of Telephone Industries of Pakistan could not prevent the employees from seeking constitutional remedy as said company clearly fell within the definition of a "person" as envisaged by Art. 199 of the Constitution---Constitutional petition was held to be maintainable accordingly.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

(b) Constitution of Pakistan---

----Art. 9 & 25--- Regularization in service, right of--- Dignity of employees---Right to livelihood--- Scope--- Telephone Industries of Pakistan, contract employees of---Contract employees retained in service for more than 12 years---Effect---Vested right of regularization in service---Scope---Employees/appellants had been serving Telephone Industries of Pakistan in their respective positions since about last more than twelve (12) years, though on contract basis---However, renewal of employees' contracts on year to year basis since the inception and grant of increments to them clearly showed that the nature of their jobs/duties was permanent and not casual or temporary, and that they had been performing their functions/duties to the satisfaction of their employer and further that throughout the whole period their services were required, and had remained useful for and beneficial to the organization---Employing/retaining the employees in question on contract basis, instead of permanent basis was, thus, wholly mala fide, whimsical and unfair---No allegation of any misconduct or incompetence was made against the employees in question, rather they had been granted increments from time to time---Record showed that services of some other temporary/contract employees had been regularized by the Telephone Industries of Pakistan from time to time---Even otherwise the Federal Government which owned, controlled, managed and financed Telephone Industries of Pakistan, had directed the organization, through the concerned cabinet sub-committee to regularize the employees in question---Managing Director, Telephone Industries of Pakistan, did not heed to such direction, and such defiance was wholly illegal and mala fide---No justification existed for not making employment of employees in question permanent, and for keeping their entire career, rather livelihood exposed and susceptible to the whims of the authorities, which also hurt their dignity---Supreme Court directed that services of employees in question should be regularized from the date of decision of the sub-committee for regularization---Supreme Court observed that while discharging official functions, efforts should be made to ensure that no one was prevented from earning his livelihood because of unfair and discriminatory act on their part---Appeal was allowed accordingly.

Province of Punjab v. Ahmad Hussain 2013 SCMR 1547; Province of Punjab v. Gul Hassan 1992 PLC 924; Punjab Seed Corporation v. Punjab Labour Appellate Tribunal 1996 SCMR 1947; Executive Engineer v. Abdul Aziz PLD 1996 SC 610 and Secretary, Irrigation and Power Department Government of Punjab v. Muhammad Akhtar 2009 SCMR 320 ref.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to livelihood---Right to life as envisaged by Art. 9 of the Constitution included the "right to livelihood".

(d) Constitution of Pakistan---

---Art. 4 & Preamble---Socio-economic justice---Scope---Whole edifice of governance of the society had it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law, and that they were not being deprived of their due rights.

(e) Constitution of Pakistan---

----Art. 4---Public functionaries, duty of---Natural justice---Procedural fairness and propriety---Every public functionary was supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Art. 4 of the Constitution, which included principles of natural justice, procedural fairness and procedural propriety---Any action which was mala fide or colourable was not regarded as action in accordance with law.

PLD 1999 SC 1026 ref.

(f) Constitution of Pakistan---

----Arts. 4 & 25--- Administrative authorities, duty of--- Good governance---Scope---Object of good governance could not be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such objective could be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Arts. 4 & 25 of the Constitution---Obligation to act fairly on the part of the administrative authority had been evolved to ensure the rule of law and to prevent failure of the justice.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Abdul Rehman Qadar, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondents.

Date of hearing: 18th May, 2015.

2015 S C M R 1265

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Qazi Faez Isa, JJ

FAISAL NOMAN and others---Appellants

versus

JAVED HUSSAIN SHAH and others---Respondents

Criminal Appeals Nos.3 and 4 of 2015, decided on 4th June, 2015.

(On appeal from the judgment dated 24-7-2013 of the Lahore High Court, Lahore passed in Cr.As. Nos. 998 and 999 of 2011, PSLA No.189 of 2011 and Cr. Rev. No. 739 of 2011)

Penal Code (XLV of 1860)---

----Ss. 324, 452, 148, 149, 337-L(2) & 337-H(1)---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Attempt to commit qatl-i-amd, house-trespass after preparation for hurt, rioting armed with deadly weapons, unlawful assembly, other hurt, hurt by rash or negligent act, acts of terrorism---Reappraisal of evidence---Benefit of doubt---Attack on a rally of lawyers by police officials---Allegation against accused police officials was that on the alleged orders of the District Police Officer ("DPO") they sprinkled an inflammable liquid from plastic bottles/syringes on a rally of lawyers, causing burn injuries to a number of lawyers---Accused-police officials were convicted and sentenced under Ss. 324, 452, 148, 149 & 337-L(2), P.P.C and S. 7(h) of Anti-Terrorism Act, 1997---Contention of accused-police officials was that no inflammable liquid from plastic bottles/syringes was ever sprayed on the lawyers, and that they were compelled to prevent the lawyers from taking out a rally as they were directed to do so by their superior officer, i.e. the DPO---Validity---Mere presence of police officials(at court premises) did not mean that it constituted an "unlawful assembly" or that they had "gathered to riot"---In the absence of the plastic bottles and syringes allegedly containing inflammable material, Ss. 324 & 337-L(2), P.P.C., would be difficult to establish, particularly since the prosecution/complainant whilst stated to be in possession thereof did not tender the same in evidence---Police officials' presence at the court premises also did not constitute "house trespass" under S. 452, P.P.C.---Prosecution itself had contended that police officials had been deployed outside the court premises and had prevented the lawyers from taking out the rally, therefore, as per the prosecution version the same could not be brought within the definition of "terrorism" under S. 7(h) of the Anti-Terrorism Act, 1997---District Police Officer ("DPO") who was stated to be the instigator of the entire incident had not been proceeded against by the prosecution---Merely because accused-police officials, in the present case, were found not guilty of the offences for which they were convicted, it did not follow that they were not at all liable for the injuries that the lawyers suffered---Participants of the rally had not taken the law into their own hands or caused any damage to property, therefore, there was no justification to restrain the lawyers who had gathered on the fateful day---Objective of the police was to prevent the lawyers from leaving the court premises and the lawyers were pushed back with reckless disregard to the fact that some lawyers were carrying lit torches, and it was reasonable to presume that they would be injured if the torches or the inflammable liquid therein fell upon them---Even though benefit of doubt was extended to the appellant-police officials that they did not spray any inflammable material on the lawyers the fact remained that a number of lawyers suffered severe burn injuries which was caused on account of the extremely rash actions of the police officials---Such action on the part of the accused-police officials constituted, an offence under S. 337-H(1), P.P.C. (hurt by rash or negligence)---Supreme Court, consequently, set aside the convictions of the accused police officials under Ss. 148, 149, 324, 337-L(2) & 452, P.P.C. & 7(h) of the Anti-Terrorism Act, 1997 and instead convicted each of them under S. 337-H(1), P.P.C. and sentenced them to simple imprisonment for a period of two years each and directed each of them to pay daman of an amount of fifty thousand rupees which shall be disbursed amongst all the injured victims in equal shares---Appeal was dismissed accordingly.

Syed Ali Bepari v. Niberan Mollah PLD 1962 SC 502 ref.

M. Latif Khosa, Senior Advocate Supreme Court, Khurram Latif Khosa, Advocate Supreme Court and Faisal Noman, appellant in person (in Cr. A. 3 of 2015).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellants (in Cr.A. 4 of 2015).

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Respondents (in Cr. A. 3 of 2015).

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

Dates of hearing: 19th, 20th and 25th May, 2015.

2015 S C M R 1274

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

WELLA AKTINEESELLSCHAFT---Appellant

versus

SHAMIM AKHTAR and others---Respondents

Civil Appeals Nos.861 to 863 of 2002, decided on 24th April, 2015.

(On appeal from judgment of High Court of Sindh, Karachi, dated 19-4-2006, passed in Misc. Appeals Nos.2, 3 and 4 of 1989)

(a) Trade Marks Act (V of 1940)---

----S. 37(1)---Trade mark---Continuous non-use of a trade mark for five years---Effect---Removal of trademark from the Register of Trade Marks---Scope---Section 37 of Trade Marks Act, 1940, was a penal provision aimed to work as deterrent for those, seeking registration of any trademark under the said Act with some ulterior motive, which they did not intend to use or there had been in fact no bona fide use of their trade mark in relation to those goods for a specified period---For seeking the relief of removal/revocation of a registered trade mark under S.37(1)(b) of the Trade Marks Act, 1940, specific minimum timeframe of five years had been provided during which there had been no bona fide use of such trademark by its proprietor, which was to be computed from a date one month before the date of application submitted by any aggrieved person in such regard.

(b) Trade Marks Act (V of 1940)---

----Ss. 37(1)(b), 28 & 39---Trade mark---Bona fide non-use of trade marks for over five years due to special circumstances (i.e. ban imposed on import of products by Government)---Trademarks removed from the Register of Trademarks, restoration of---Scope---Appellant-company, which carried on the business of manufacturing and exporting cosmetic items got registered three trademarks, "WELLA with Device", "WELLAFORM" and "WELLAFLEX", and carried out its business in Pakistan---Subsequently appellant-company could not freely sell their products in Pakistan, in relation to which the three Trademarks were registered, from the year 1979 to 1985 due to ban on the import of its products as per the relevant Import Policy Orders issued by the Ministry of Commerce, Government of Pakistan---Respondent, a partnership concern carrying on the business of manufacturing and trading in cosmetics and allied products started using the trademark "WELLA" and subsequently applied for its registration, which application was declined on the ground that it conflicted with the trademarks of appellant-company---Respondent filed rectification applications before the Registrar of Trademarks seeking removal of the trademarks of the appellant-company on the grounds that the appellant-company had registered said trademarks without any bona fide intention to use them and had in fact failed to use them since their registration---Registrar of Trademarks cancelled/removed the trademarks issued in favour of the appellant-company on the ground that in light of extended period of non-use of the trademarks for over five years, sufficient proof existed that the appellant-company had no intention of using them in Pakistan, and that the company neither used, nor took any steps to use them, and even if import of its goods was banned, alternative measures, such as appointing a registered user or assigning their trademarks, could have been adopted, as was being done by other foreign proprietors of trademarks under similar circumstances---Validity---Documentary evidence showed the efforts of appellant-company in making sales and supply of their products in Pakistan under their registered trademarks soon after lifting of ban on import of its products and also making correspondence with businessmen in Pakistan for manufacturing their products under a license etc.---Genuine and sincere efforts were made by the appellant-company for securing business for their products in Pakistan (before and during the ban on import of its products in Pakistan)---Non-use of its trademarks by the appellant-company for a period of over five years was under special circumstances due to a legal bar (i.e. ban on import of its products by the Government) and not due to mala fide, thus, there was a presumption of bona fide non-use of trademarks by appellant-company during such period---When the respondent started using the trademark "WELLA" for their products for the first time, the three registered trademarks of appellant-company were already in field for a considerably long period---In such circumstances, mere assertion of respondent that adoption of its trademark was bona fide and after undertaking due search, was not free from serious doubts---Moreso, in the circumstances when no material in support of such plea was placed on record and the trademarks of the appellant-company were well known and recognized internationally---Observation of Registrar that in case of ban on goods under the import policies issued by the Government, the appellant-company could have appointed some registered user under S. 39 of the Trade Marks Act, 1940, or they could have assigned their trademark by invoking S. 28 of the said Act, or granted license to some person to avoid the penal consequences of S. 37(1)(b) of the same Act, were equally without force as the Trade Marks Act, 1940 did not envisage any such compulsion to avoid the consequence of Government ban, which could be justly and fairly considered as special circumstances in the trade within the meaning of S. 37(3) of the said Act---Registrar of Trademarks had, thus, wrongly invoked the provisions of S. 37(1)(b) of the Trade Marks Act, 1940 for ordering removal of registered trademarks of the appellant-company---Supreme Court restored the registered trademarks of appellant-company---Appeal was allowed accordingly.

Cooper's Incorporated v. Pakistan General Stores and another 1981 SCMR 1039 ref.

(c) Trade Marks Act (V of 1940)---

----S. 37---Trade mark---Removal of trademark from the Register of Trademarks due to its continuous non-use for five years---Burden of proof--- Standard of proof--- Burden of proof as to whether there was no bona fide use of the registered trademarks for a continuous period of five years upto a date one month before the date of the application without any lawful excuse or special circumstances as envisaged under S. 37(3) of the Trade Marks Act, 1940, was squarely upon the aggrieved party/applicant which had submitted the application for removing the trademark from the Register of Trademarks---Such burden was to be proved beyond reasonable doubt so as to invoke the penal consequences under S. 37 of Trade Marks Act, 1940.

Anwar Mansoor Khan, Senior Advocate Supreme Court assisted by Mrs. Umaima Khan, Advocate for Appellant.

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for Respondent No.1.

Ex parte for Respondent No.2.

Date of hearing: 24th April, 2015.

2015 S C M R 1303

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Gulzar Ahmed and Sh. Azmat Saeed, JJ

Dr. RAJA AAMER ZAMAN---Petitioner

versus

OMAR AYUB KHAN and others---Respondents

Civil Review Petition No.94 of 2014 in Civil Appeal No.31 of 2014, decided on 19th June, 2015.

(Against the review of order dated 7-3-2014 passed by this Court in C.A. 31 of 2014)

Per Jawwad S. Khawaja, J; Gulzar Ahmed, J, agreeing; Sh. Azmat Saeed, J, dissenting.

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

----Ss. 67 & 70---Constitution of Pakistan, Arts. 225 & 188---Review of Supreme Court judgment---Election Tribunal, powers of---Partial re-poll in a constituency, ordering of---Legality---Election for seat of National Assembly---Petitioner was declared as returned candidate for the constituency---Respondent (runner-up candidate) filed petition before the Election Tribunal, which was allowed to the extent that the Tribunal instead of declaring the election to be void as a whole, directed re-poll in seven (7) polling stations only out of 437 polling stations---Contention of petitioner was that the Election Tribunal only had the power to declare the election of the entire constituency as void, and it could not have directed a partial re-poll in only seven polling stations---Validity---Section 70 of Representation of the People Act, 1976, expressly stipulated that the election as a whole was to be declared void, if the result of the election had been materially affected by reason of failure of any person to comply with the provisions of the said Act or the rules---In the present case, both conditions of S. 70 of Representation of the People Act, 1976, viz. failure (of polling staff) to comply with the provisions of the said Act and the second necessary condition that such failure should also have materially affected the result of the election, had been met---Since both statutory requirements existed concurrently in the present case, the election as a whole stood vitiated---Only way the election in the present case could have been saved from being annulled was if the outcome of the election were to remain unaffected even if all votes at the disputed stations were treated as casted in favour of the loosing candidate---Number of votes in the seven disputed polling stations and the difference in votes polled by the two main contestants at such stations was such that it was not possible to assess the outcome of the election---Non-compliance of the law in seven polling stations had materially affected the "entire election", thus, it was not possible to allow for a partial annulment of the election, and no option was left with the Election Tribunal but to declare the election as a whole to be void---When the statute (S. 70 of the Representation of the People Act, 1976) required the election as a whole to be declared void, it was not possible to hold that it included the jurisdiction to declare the election at a few polling stations to be void---Supreme Court declared that the election as a whole stood vitiated and directed the Election Commission to hold a bye-election for the constituency in accordance with law---[Per Sh. Azmat Saeed, J; dissenting with Jawwad S. Khawaja, J (Minority view)---In case of an election dispute, the same must be resolved through an election petition by the Election Tribunal--- Such disputes, subject to mandatory procedural requirements, must necessarily be resolved in a manner that the will of the people was given effect to and respected---Election Tribunal while exercising its jurisdiction in terms of S. 67(1)(d) of the Representation of the People Act, 1976, could not only declare the election as a whole void but also any part thereof i.e. the elections in a few polling stations, if the circumstances so required---In the present case, out of a total of 437 polling stations, the election in 430 polling stations was carried out fairly, justly and in accordance with law---Merely because in seven (7) polling stations, the Representation of the People Act, 1976, and the Rules framed thereunder were violated, did not justify annulling the election in 430 Polling stations---Importantly, it was not the case of the petitioner that the interpretation of Ss. 67 & 70 of the Representation of the People Act, 1976, as employed in the present case had caused any prejudice to him --- Literal and rigid interpretation whereby valid votes cast in 430 out of 437 polling stations were invalidated without any unavoidable compulsion, especially in the absence of prejudice to any party, would not advance the obvious purpose of the relevant constitutional provisions of the Representation of the People Act, 1976, and, therefore, could not be easily accepted---Such an interpretation would encourage and enable a losing candidate to precipitate a re-poll in the entire constituency by disturbing the election at one or two polling stations and thereby frustrating and subverting the purpose of the law---Principle of severability was applicable to election matters thereby isolating the result in a few polling stations where polling had been contaminated and holding a fresh poll there at---During pendency of the appeal before the Supreme Court re-poll in the seven polling stations was conducted as a consequence whereof respondent was declared the returned candidate---People of the constituency had spoken and there was no occasion to discard the will of the people and force them to go to the polls again]---Review petition was allowed accordingly.

Ehsanullah Reki v. Abdul Qadir Baloch 2010 SCMR 1271; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 SC 779; Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851 and A.C. Jose v. Sivan Pillai AIR 1984 SC 921 distinguished.

Morgan and others v. Simpson and another (1974) 3 All ER, 722; Muhammad Ali v. Maulana Muhammad Zakria PLD 1966 Journal 167; Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352; Mrs. Monica Kamran Dost v. Mrs. Lilavati Barchandani and another PLD 1987 SC 197; Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851 and A.C. Jose v. Sivan Pillai and others AIR 1984 SC 921 ref.

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

----Ss. 103, 103AA, 67 & 70---Constitution of Pakistan, Arts. 218 & 225---Election Commission and Election Tribunal, powers of---Distinction---Powers of the Election Commission under Ss. 103 & 103AA were materially different from the provisions of Ss. 67 & 70 of the Representation of the People Act, 1976, and, therefore, any interpretation of Ss. 103 & 103AA could not be applied to Ss. 67 & 70 of the Representation of the People Act, 1976---Said provisions were in fact quite different, both in letter and in spirit---Most significant aspect of distinction between the powers of an Election Tribunal under Ss. 67 & 70 as opposed to the powers of the Election Commission under Ss. 103 & 103AA of the Representation of the People Act, 1976, was constitutional---While the Election Commission had powers vested in it under Art.218 of the Constitution requiring it to ensure that the election was conducted honestly, justly, fairly, and in accordance with law, the powers of the Election Tribunal were derived from Art. 225 of the Constitution which stipulated that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament)---Act of Parliament so referred to was the Representation of the People Act, 1976---Election Commission had been granted administrative and policing functions for the purpose of conducting elections honestly, fairly, justly and in accordance with law---Such administrative powers were not judicial in nature and were exercisable without any deep probe of facts as may be ascertainable on "the face of the record" or after a "summary inquiry" if deemed necessary by the Commission---Such powers once exercised by the Commission were also subject to judicial review as administrative acts because the same were by definition, based on a summary inquiry or in certain cases, even without such inquiry---Powers of the Election Tribunal on the other hand were based on Art. 225 of the Constitution and were of a judicial and adjudicatory nature subject only to an appeal, in accordance with the provisions of the Representation of the People Act, 1976, and the rules.

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

----Ss. 103 & 103AA---Constitution of Pakistan, Art. 218---Election Commission, powers of---Partial re-poll in a constituency, ordering of---When for a particular reason such as natural calamity, violence, terrorism etc., few polling stations were affected, the Election Commission had the power to order a re-poll in such polling stations affected by such events.

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

----Ss. 103, 103AA, 67 & 70---Constitution of Pakistan, Arts. 218 & 225---Election Commission and Election Tribunal, powers of---Distinction---Partial re-poll in a constituency, ordering of---Power of Election Commission under S. 103 of the Representation of the People Act, 1976, was of sufficient amplitude to enable the Election Commission to order a re-poll only in some and not all polling stations in a constituency---Election Tribunal was not invested with any such discretion.

(e) Interpretation of statutes---

----Where the wording of a statute did not admit of any ambiguity, courts did not have the power to travel beyond such wording in search of some illusory meaning which may have been "intended" by Parliament.

(f) Interpretation of statutes---

----Redundancy was not to be imputed to the legislature.

Per Sh. Azmat Saeed, J; dissenting with Jawwad S. Khawaja, J.

(g) Interpretation of statutes---

----Purposive interpretation---Courts always preferred a purposive rather than a literal interpretation of statutory instruments.

Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90 and Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 ref.

(h) Administration of justice---

----Jurisdiction to grant a specific relief included the jurisdiction to grant a partial relief--- Courts and Tribunals could not only grant the entire relief permitted by law but also any part thereof.

Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32 ref.

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

----S. 70---Election Tribunal, powers of---Power to declare election as a whole void---Partial re-poll in a constituency, ordering of---Legality---In the eventuality of a failure to comply with the mandatory provisions of Representation of the People Act, 1976, and the Rules, Election Tribunal in exercise of powers under S. 70 of the said Act, may declare the election as a whole to be void---Election Tribunal, however, was not denuded of the jurisdiction to grant partial relief of declaring the election at a few polling stations to be void and directing a re-poll thereat---Question as to which of the two available courses of action was followed by the Election Tribunal, would depend on the facts and circumstances of each case---Real and decisive factor would be the fulfillment of the mandate of the Constitution and the Representation of the People Act, 1976, for ensuring that the will of the people was respected and a free, fair and impartial election was held---Election Tribunal also had to ensure that no prejudice was caused to any of the candidates. [Minority view]

Hamid Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 29th May, 2015.

2015 S C M R 1326

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Sh. Azmat Saeed and Iqbal Hameedur Rahman, JJ

ABDUL HAQ and another---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.75 to 77 of 2005, 98 and 99 of 2006, decided on 8th June, 2015.

(On appeal against the judgments dated 3-6-2003, 5-5-2003, 8-5-2002 and 29-4-2002 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.47-J of 2002, 1489 of 2001, 1320 of 2001, 48-J of 2002, 1490 of 2001, 49-J of 2002, 1488 of 2001 and Murder Reference Nos.56-T of 2001, 40-T of 2001, 55-T of 2001 and 62-T of 2001)

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

----Ss. 302, 324, 34, 148, 149, 337-F(ii), 337-F(iii) & 392---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Sectarian killings, acts of terrorism---Reappraisal of evidence---Heinous crime---Promptly lodged FIR---Natural eye-witnesses---Daylight occurrence---No probability of false implication---Medical evidence corroborating ocular account---Accused and co-accused allegedly murdered 10 persons belonging to a religious sect, and to avoid their arrest they also killed two police officials---Trial Court sentenced accused and co-accused to death, which sentence was upheld by the High Court---Validity---Present case was a classic case of sectarianism---Accused and co-accused were specifically named in the FIRs, which were promptly lodged, thus, the same excluded the chances of any deliberation or false implication---Eye-witnesses were natural witnesses as they were present at the spot to attend a religious gathering---Eye-witnesses narrated the story in a natural manner and they remained consistent on all major particulars of the case---Present occurrence was daylight occurrence and no question of mistaken identity arose---One of the eye-witnesses had also received injuries and his brother was one of the deceased---In such circumstances, it did not appeal to mind that the said eye-witness would falsely implicated the accused and co-accused without any previous enmity and let off the real culprits---Nothing could be brought on record to prove that the witnesses had any previous enmity or ill-will to falsely implicate the accused and co-accused in the present case---Although no one from the general public had appeared to make a statement, but it was generally noted that people in cases like the present one normally hesitated to appear and become a witness due to fear and reprisal---Medical evidence also fully supported the ocular account so far as the nature and locale of injuries were concerned---Weapon of offence recovered from the accused and co-accused and the empties which were taken into possession from the place of occurrence were sent to Forensic Science Laboratory and the report was positive---Overwhelming evidence was available on record against accused and co-accused which clearly connected them with the commission of crime---Accused and co-accused had committed a heinous crime and they did not deserve any leniency---Supreme Court observed that sectarian issue in Pakistan was a major destabilizing factor in the country's political, social, religious and security order; that sectarian conflict in Pakistan had caused unrest, disorder and violence in society, and resulted into thousands of deaths from suicide attacks, bomb blasts, assassinations and other terrorist acts; that abscess of sectarianism could be stopped by adopting strategies such as by removing from textbooks, reading material and syllabi taught in different educational institutions all such material which promoted hatred and biases on the basis of religion, sect, sex, ethnicity and culture---Supreme Court further observed that the media, both print and electronic, must be instructed to do responsible reporting on sectarian matters, and that violent sectarian organizations must be banned---Appeal was dismissed accordingly.

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

----S. 340(2)---Penal Code (XLV of 1860), Ss. 302, 324, 34, 148, 149, 337-F(ii), 337-F(iii) & 392---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Sectarian killings, acts of terrorism---Reappraisal of evidence---Oath on Holy Quran to prove innocence, relevance of---Scope---Accused in his statement under S. 340(2), Cr.P.C. stated that he was ready to state on Holy Quran that he was innocent---Held, that there was no legal sanctity behind such a statement by the accused---Overwhelming evidence was available against the accused, which clearly proved that he had taken the lives of innocent citizens and he had only made such statement to save his skin---Appeal was dismissed accordingly.

Mian Muzaffar Ahmed, Advocate Supreme Court for Appellants (in all cases).

Asjad Javed Ghural, Additional P.-G. for Respondent.

Date of hearing: 8th June, 2015.

2015 S C M R 1335

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

UNITED BANK LIMITED---Appellant

versus

FATEH HAYAT KHAN TAWANA and others---Respondents

Civil Appeal No. 2352 of 2008, decided on 13th April, 2015.

(On appeal from the judgment/order dated 5-11-2003 passed by Lahore High Court, Lahore in F.A.O. No.189 of 1994)

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

----S. 48---Limitation Act (IX of 1908), Art. 181---Constitution of Pakistan, Art. 185(3)--- Leave to appeal was granted by Supreme Court to consider whether second execution application filed on 16-1-1989, by appellant during pendency of its first execution application for enforcement of money decree dated 20-1-1981, suffered time bar under S. 48, C.P.C. read with Art. 181 of Limitation Act, 1908.

(b) Banking Companies (Recovery of Loans) Ordinance (XXIII of 1979)---

----S.8(3)---Civil Procedure Code (V of 1908), S. 48 & O. XXI, R. 11---Execution of decree---Second execution application---Ex parte money decree was passed on 201-1-1981, by Banking Court and first application for execution of decree was filed on 27-6-1983, subsequently another application was filed on 16-1-1989---First application was consigned to record as fresh application had been filed and second was dismissed on the ground that it was barred by time---Order passed by Banking Court was maintained by High Court---Validity---First execution application was not disposed of by judicial order, therefore, second execution application filed on 16-1-1989, should plausibly be treated as continuation thereof or ancillary thereto---For ascertaining legal status and effect of proceedings before court of law, it was the content and meaning of judicial orders about such proceedings that were determinative and not the description or name given to proceedings by a party thereto, therefore, pending execution proceedings, descriptions given to by decree holder were inconsequential---Subsequent execution application filed by decree holder was deemed to be pending before Executing Court to be decided on merits---Appeal was allowed.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 rel.

Muhammad Yaqoob v. Qudsia Kishwar 1988 MLD 1379 and Amir Begum v. Mir Fateh Shah PLD 1968 Kar. 10 ref.

(c) Administration of justice---

----For ascertaining legal status and effect of proceedings before court of law, it was the content and meaning of judicial orders about such proceedings that were determinative and not the description or name given to proceedings by a party thereto.

Ms. Raisa Sarwat, Advocate Supreme Court for Appellant.

Syed Najamul Hassan Kazmi, Advocate Supreme Court for Respondents Nos. 5 and 6.

Ex parte for Respondents Nos.1 - 4, 7 and 8.

Date of hearing: 13th April, 2015.

2015 S C M R 1341

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Iqbal Hameedur Rehman and Maqbool Baqar JJ

Messrs SUMMIT BANK LIMITED through Manager---Appellant

versus

Messrs QASIM AND CO. through Muhammad Alam and another---Respondents

Civil Appeal No. 167 of 2005, decided on 7th April, 2015.

(On appeal against the judgment dated 14-12-2004 of the High Court of Balochistan Quetta in R.F.A. No.58 of 1999)

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

----S. 171---Lien/right of banker to set off---Principle---Banker and customer---Even under the law which provided for recovery through coercive process such as land revenue, determination of amount due is an essential pre-requisite---Bank cannot be conferred with judicial powers for determination of amount due against its customer/borrower---Right/power to sell off is available only where amount claimed is due and is certain and determined by competent judicial forum.

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

----S. 50---Decree, satisfaction of---Legal representatives---Extend of liability---Principle---Pecuniary obligation undertaken by deceased promisor would be binding on his legal representatives to the extent of estate of deceased promisor in their hand.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----Ss. 7(4) & 9---Contract Act (IX of 1872), S. 171---Civil Procedure Code (V of 1908), S. 50---Suit for recovery of money---Lien/right to set off---Determination---Legal heirs of deceased loanee---Extent of liability---Outstanding finance facility of father of plaintiffs, after his death was adjusted by Bank seeking to right of set off against funds of plaintiffs---Plaintiffs filed suit for recovery of money against Bank which was dismissed by Trial Court but High Court allowed appeal and decreed the suit in favour of plaintiffs---Plea raised by Bank was that Banking Court was proper forum for determination of dispute between the parties---Validity---Neither there was any adjudication of claim of Bank against principal debtor or against deceased, nor it was judicially determined as to whether plaintiffs had inherited any property from deceased---No question of Bank seeking to right to set off the alleged liability and/or seeking any recovery from plaintiffs without adjudication of such aspect of the matter---Neither there was any question pertaining to 'finance' as defined by S. 9, nor the question as to whether plaintiffs were 'customer's in the context of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, involved in the matter and no documents were executed by plaintiffs securing re-payment of alleged liability---Suit for recovery was filed by plaintiffs for the amount that was deducted out of their monies lying in their account, illegally and unauthorized and thus Banking Court had no jurisdiction in the matter as the same was constituted to adjudicate upon the matter pertaining to 'finance' between bank and its customer---No jurisdictional error having been found in the matter, Supreme Court declined interference in the judgment passed by High Court---Appeal was dismissed.

Punjab National Bank Ltd. v. Arura Mal Durga Das AIR 1960 Punjab 632 ref.

Hadi Shakeel Ahmed, Advocate Supreme Court for Appellant.

Syed Ayaz Zahoor, Advocate Supreme Court for Respondents.

Date of hearing: 7th April, 2015.

2015 S C M R 1348

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, HCJ, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

ANJUM AQEEL KHAN and others---Petitioners/Appellants

versus

NATIONAL POLICE FOUNDATION through M.D. and others---Respondents

C.R.Ps. Nos.309 to 312, 320, 321, 323 to 327, 348, 349, 354 to 356, 361, 362, 364 to 366, 373, 377, 378, 357 to 360, 363, 367 to 372, 374 to 376 of 2013, 31 to 33, 49 to 54 of 2014 and C.M.As. Nos.1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 of 2014 in C.R.Ps. Nos. Nil of 2014 in S.M.C. No.11 of 2011, C.M.A. No. 1429 of 2015 in C.R.P. No. Nil of 2015 in S.M.C. No. 11 of 2011.

(To review this Court's judgment dated 31-10-2013 passed in Suo Motu Case No.11 of 2011)

(a) Charitable Endowments Act (VI of 1890)---

----S. 2---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment "charitable purpose"---Scope---National Police Foundation---Launch of National Police Foundation Housing Society by the National Police Foundation for the general public---Legality---Illegalities, irregularities, mal-administration and corruption committed by Administration Committee and Board of Directors of National Police Foundation ("the petitioners") in collusion with a Member of National Assembly during procurement of land and allotment of plots in National Police Foundation Housing Society---National Police Foundation ("Foundation") was established under the Charitable Endowments Act, 1890---Main purpose for its establishment was to provide relief to the poor police officials throughout the country in the shape of medical relief, education, one time grant, artificial limbs, scholarships, dowry, vocational training centres etc.---Word 'charitable purpose' had been defined in S. 2 of the Charitable Endowments Act, 1890, which includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but did not include a purpose which related exclusively to religious teaching or worship---Administration Committee of the Foundation, in the present case, had framed rules according to its own choice irrespective of the scope of the Charitable Endowments Act, 1890, under which the Foundation was formed for welfare and benefit of poor and needy police officials all over the country---Foundation had deviated from the basic purpose of charity for which it was established---Foundation was authorized to launch private housing schemes but only for the help of beneficiaries and not for private persons or officers/officials of other departments under the garb of beneficiaries---Establishment and launching of private housing schemes for the general public was against the very object and aim of the Foundation---In the present case, only influential persons had gotten the benefit of the schemes launched by the Foundation and the needy poor police officials had been deprived of their right---Valuable plots had been squandered only to favour higher police officers, and their families and other persons who were not at all entitled to the allotment of plots---Even no balloting was carried out for allotment of plots---Plots were allotted to the officials/employees by the Administration Committee of the Foundation without an impartial process---Several police officials and their family members were allotted more than one plot---Management of the Foundation had also allotted plots to bureaucrats, military officials and civilians, who did not even fall within the definition of "beneficiaries of the Foundation"---Some of the plots were even given at the rate of Rs.100, which clearly established mala fide on the part of the Foundation---Member of National Assembly involved, in the present case, admitted his lapses during the inquiry proceedings and entered into agreements with the Foundation so as to make the loss good---If the said Member of National Assembly had not done any wrong or he was not involved, then question was as to why he admitted his lapses and entered into agreements with the Foundation---Supreme Court directed that despite illegalities in the process of allotment, police officers and employees of the Foundation who had been allotted only one plot, could keep their plots in the interest of justice; that more than one plot allotted to any person or his family members in the Housing Society shall stand cancelled, however, if they wanted to retain such plots, they could pay the market price of the plots; that civilians, bureaucrats, army personnel etc., were not at all entitled for the allotment of plots, hence their allotment should be cancelled, unless they wanted to retain such plots by paying the market price thereof; that as far as subsequent purchasers/bona fide purchasers of plots were concerned, who had acted in good faith and purchased the plots from the original allottees after having undergone a thorough process of due verification and paid the market price prevailing at that time, their entitlement to the plots should not be cancelled, and if at all, any amount was to be paid, that should be paid by the original allottees, who gained unlawfully or who were the beneficiaries of undue enrichment; that observations made in the present review proceedings were tentative in nature and National Accountability Bureau or any other investigating agency should proceed against the delinquent persons strictly on merit without being influenced by any observations made in the present proceedings---Review petition was dismissed accordingly.

(b) Charitable Endowments Act (VI of 1890)---

----S. 2---Constitution of Pakistan, Arts. 184(3) & 188---Review of Supreme Court judgment---Suo motu powers of the Supreme Court---Scope---Case of public importance---National Police Foundation---Housing society---Illegalities, irregularities, mal-administration and corruption committed by Administration Committee and Board of Directors of National Police Foundation ("the petitioners") in collusion with a Member of National Assembly during procurement of land and allotment of plots in National Police Foundation Housing Society---Present case was one of public importance where loot sale of plots was going on in the name of generation of funds depriving the deserving poor police officials, and the same squarely fell within the ambit of Art. 184(3) of the Constitution---Supreme Court had full powers to take suo motu action in such like cases of "public importance"---Review petition was disposed of accordingly.

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

----S. 18---Constitution of Pakistan, Arts. 184(3), 188 & Part II, Chapter 1---Review of Supreme Court judgment---Suo motu powers of the Supreme Court---Scope---Supreme Court giving directions to National Accountability Bureau to initiate proceedings against delinquent public officials---Legality---Contention that under S. 18 of the National Accountability Ordinance, 1999, only the Chairman of the Bureau or the person duly authorized by him was empowered to take a decision regarding initiation of proceedings against anyone---Validity---Supreme Court under Art. 184(3) of the Constitution had very vast powers and if the Court considered that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by the Constitution was involved, it had jurisdiction to pass appropriate orders---Review petition was disposed of accordingly.

Muhammad Yasin v. Federation of Pakistan through Secretary Establishment Division PLD 2012 SC 132 and Ashfaque Ahmed v. National Accountability Bureau through Chairman PLD 2014 Quetta 109 ref.

(d) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Case could not be re-argued in review jurisdiction of the Supreme Court.

Makhdoom Ali Khan, Senior Advocate Supreme Court for Petitioners (in C.R.P. 309 of 2013).

Hamid Khan, Senior Advocate Supreme Court for Petitioners (in C.R.Ps. 310 to 312 and 349 of 2013).

Zahid Nawaz Cheema, Advocate Supreme Court and Syed Ali Zafar, Advocate Supreme Court for Petitioners (in C.R.Ps. 320, 321, 323, 324 to 327 and 378 of 2013).

Dr. Rana Muhammad Shamim, Advocate Supreme Court for Petitioners (in C.R.P. 361 of 2013).

Malik Waheed Anjum, Advocate Supreme Court for Petitioners (in C.R.P. 362 of 2013).

Malik Jawwad Khalid, Advocate Supreme Court for Petitioners (in C.R.Ps. 355 and 373 of 2013 and C.M.A. No.1059).

Mian Abdul Rauf, Advocate Supreme Court for Petitioners (in C.R.Ps. 356 to 360 of 2013 and C.R.Ps. 51 and 52 of 2014).

Muhammad Aslam Ghumman, Advocate Supreme Court for Petitioners (in C.R.P. 363 of 2013).

Raja Inam Ameen Minhas, Advocate Supreme Court for Petitioners (in C.R.P. 364 of 2013).

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Petitioners (in C.R.Ps. 367 to 370, 375 of 2013 and C.M.A. 1063 of 2014).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.Ps. 371-372 of 2013).

Petitioners in person (in C.R.Ps. 376-377 of 2013).

Shamshadullah Cheema, Advocate Supreme Court for Petitioners (in C.R.P. 33 of 2014).

Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioners (in C.R.P. 49 of 2014 and C.M.A. 2353 of 2014).

Sardar Muhammad Ashfaq Abbasi, Advocate Supreme Court for Petitioners (in C.R.P. 50 of 2014).

Hashmat Ali Habib, Advocate Supreme Court for Petitioners (in C.M.As. 2334, 2338, 2343, 2347, 2351 of 2014).

Afnan Karim Kundi, Advocate Supreme Court for Petitioners (in C.R.Ps. 365-366 of 2013).

Ch. Naseer Ahmed Tahir, Advocate Supreme Court for Petitioners (in C.R.P. 354 of 2013).

Muhammad Munir Paracha, Advocate Supreme Court for Petitioner (in C.R.P. 374 of 2013).

Rehan ud Din Galra, Advocate Supreme Court for Petitioners (in C.R.Ps. 53-54 of 2014).

Farhat Nawaz Lodhi, Advocate Supreme Court for Petitioner (in C.R.Ps. 31 and 32 of 2014).

Muhammad Ilyas Siddiqui, Advocate Supreme Court (in C.M.A. No.1429 of 2014).

Syed Zahid Hussain Bukhari, Advocate Supreme Court, Syed Asghar Hussain Sabzwari, Advocate Supreme Court, Dr. Aslam Khaki, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Dates of hearing: 21st, 26th, 27th, 29th May and 6th April, 2015.

2015 S C M R 1373

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Sh. Azmat Saeed and Maqbool Baqar, JJ

C.M.A. No. 3305 of 2014 in Civil Petition No. 740 of 2013

(Show Cause Notice to the petitioner in C.P. 740/13 issued in compliance of the order of this Court dated 21-5-2014)

C.R.P. No.295 of 2014 in Civil Petition No. 740 of 2013

(Review against this Courts order dated 21-5-2014 passed in C.P. 740 of 2013)

AMEER REHMAN and others---Appellants

versus

AMEER MUMTAZ and others---Respondents

C.M.A. No. 3305 of 2014 in Civil Petition No.740 of 2013 and C.R.P. No.295 of 2014 in Civil Petition No. 740 of 2013, decided on 1st July, 2015.

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

----S. 476---Settlement of Disputes of Immovable Property (Chitral) Order [P.O. 12 of 1980], para 12---Abuse of the process of the Court---Supreme Court dismissed petition filed by the petitioners/accused persons and also issued notices to them to show cause as to why action under para 12 of President's Order No.12 of 1980, and S.476, Cr.P.C. should not be initiated against them for abusing the process of the Supreme Court---Plea of counsel of accused persons was that they were not highly educated, and therefore, there was absence of mens rea and as a consequence the notice issued to them should be discharged---Validity---Supreme Court observed that, in the present proceedings, it was not for the Court to make a factual determination of the existence or otherwise of mens rea, the same being an issue of fact---During proceedings of the present case one of the accused persons had filed an application in Court which was written in Urdu and was also signed by the said accused---Supreme Court, in such circumstances, sent the matter to the Sessions Judge, and directed him to entrust the matter to a competent court for proceedings in accordance with law against the accused persons, and to conclude their trial expeditiously---Order accordingly.

(b) Administration of justice---

----Perjury--- Fabrication of evidence--- False litigation, deterrent against---Perjury and fabrication of documentary evidence were to be taken very seriously by Courts, as this was necessary for ensuring that the administration of justice was not undermined and baseless and false litigation was also deterred.

Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellants (in C.R.P. 295 of 2014).

Dr. Babar Awan, Senior Advocate Supreme Court on Court's Notice (in C.M.A. 3305 of 2014).

Sher Muhammad, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 1st July, 2015.

2015 S C M R 1376

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Qazi Faez Isa, JJ

COLLECTOR OF CUSTOMS, KARACHI---Petitioner

versus

NAYA DAUR MOTORS (PVT.) LTD. and others---Respondents

Civil Petition No. 121-K of 2014, decided on 11th June, 2015.

(On appeal from the judgment dated 23-1-2014 in H.C.A. No.127 of 2009 passed by the High Court of Sindh, Karachi)

Customs Act (IV of 1969)---

----S. 202(1)---Civil Procedure Code (V of 1908), S. 73(3)---Constitution of Pakistan, Art. 185(3)---Liquidation of company---Distribution of proceeds of sale---Preference to claim of secured creditors over claim of Government (i.e. customs authorities)---Properties of respondent-company were mortgaged with two banks---When the company was liquidated, its properties were put to auction, and the proceeds were paid to the Banks in partial settlement of their claim---Meanwhile customs authorities also passed an order-in-original against the company demanding certain unpaid duties and taxes on imported goods, however such demand could not be met as there was nothing left to pay customs authorities from the proceeds of sale---Contention of customs authorities that in terms of S. 73(3), C.P.C. and proviso to S. 202(1), of the Customs Act, 1969, Government dues (unpaid duties and taxes) would have precedence over the claims of the Banks---Validity---Properties of the company were mortgaged with the Banks considerably before any action was initiated against the company by customs authorities---Suits for recovery and sale of mortgaged properties filed by the Banks against the company were decreed (much) before the proviso to S.202(1), of the Customs Act, 1969, came into effect---Proviso to S. 202(1) of the Customs Act, 1969, was not made to apply retrospectively to cover the claim of the Government (i.e. customs authorities) to a time when the company had executed mortgages in favour of the Banks---Section 73(3), C.P.C. also did not assist the case of the customs authorities since it did not create any priority in the Federal Government against the rights of the Banks---Section 73, C.P.C. sets out the manner in which proceeds of sales in execution proceeding were to be distributed amongst decree-holders, and subsection (3) thereof stipulated that, "Nothing in this section affects any right of Government"---Said provision in itself did not give preferential right to the Government, but it merely stated that if the Government already had "any [preferential or prior] right" S. 73, C.P.C. would not affect the same---In the absence of a specific law that may have given preference to the claims of the Government at the relevant time, priority would depend on which encumbrance was earlier in time---However, where the claim of the Government was cotemporaneous with any other claimant, the claim of the Government would prevail---In addition to the fact that the Banks had their claim earlier in time to the Government's claim, the Banks were secured creditors as they held registered mortgages of the company's immovable properties---Claim of the Government also did not charge the said mortgaged properties, which may have created a priority of claim over that of the mortgages (Banks)---Government (i.e. customs authorities) had no entitlement to any amount realized from the sale of the mortgaged properties---High Court thus had correctly disallowed the claim of the customs authorities with regard to the amounts realized from the sale of the mortgaged properties---Petition for leave to appeal was dismissed accordingly.

Vassanbai Topandas v. Radhabai Tirath Das AIR 1933 Sindh 368; Peoples Bank v. Secy. of State AIR 1935 Sindh 232 and Kunwar Ragho Prasad v. Lala Mewa Lal 14 Bom LR 212 at 219 ref.

Raja Muhammad Iqbal, Advocate Supreme Court for Petitioner.

Qadir Bux Umrani, Official Assignee for Respondent No.2.

A.I. Chundrigar, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 11th June, 2015.

2015 S C M R 1383

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Gulzar Ahmed and Sh. Azmat Saeed, JJ

COLLECTOR OF CUSTOMS KARACHI and others---Appellants

versus

Messrs Haji ISMAIL CO. and others---Respondents

Civil Appeals Nos.1167 to 1175 of 2008, decided on 30th April, 2015.

(Against the judgment dated 2-4-2008 of the High Court of Sindh, Karachi passed in Spl. Customs Appeals Nos. 148 to 156 of 2001)

(a) Customs Act (IV of 1969)---

----S. 32---Import of consignment---Documentary evidence, lack of---Bill of lading---Appellate Tribunal rightly concluded that original documents such as bill of lading etc. were not provided to the Customs authorities by the importers; that importers provided photocopies of bill of lading, wherein the addresses of consignors/ consignees had been struck out with a marker with the result that co-relation between the bills of lading and the consignment under dispute could not be ascertained; that bills of lading which were of subsequent dates, had shown consignments exported from country "K" prior to the issuance of bills of lading; that importers had also failed to produce documentary evidence to show that the containers carrying the goods with the seal intact were exported from country "K" to country "J"---Conclusions arrived at by the Appellate Tribunal were proper and consistent with the record---Appeal was allowed accordingly.

(b) Customs Act (IV of 1969)---

----Ss. 194B & 196---Reference to High Court---Scope---Appellate Tribunal---Factual aspects of a case determined by the Appellate Tribunal, interference in---Appellate Tribunal was the forum meant for determining factual aspects of the case---High Court while exercising appellate jurisdiction under S. 196 of the Customs Act, 1969, was not free to embark upon an unfettered inquiry into factual aspects of the case which had been properly considered and decided by the Appellate Tribunal.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants.

Muhammad Waqar Rana, Additional AGP on Court Notice.

Muhammad Saleem Thepdawala, Advocate Supreme Court for Respondents.

Date of hearing: 30th April, 2015.

2015 S C M R 1385

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

HYDERABAD CANTONMENT BOARD---Appellant

versus

RAJ KUMAR and others---Respondents

Civil Appeal No. 1132 of 2007, decided on 20th May, 2015.

(Against judgment dated 8-11-2005 of High Court of Sindh at Karachi, passed in Constitution Petition No.D-687 of 2004)

(a) Interpretation of statutes---

----Charging provisions in a statute---Such provisions were strictly construed.

(b) Taxation---

----Tax/cess/toll fee/charge/levy---Scope---Extraction of money in any form may it be tax, cess, toll fee, charge or rate or levy by whatever nomenclature it was classified, could be extracted by the government and/or public authority under a valid legislative instrument by the competent legislature.

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

----S. 200---Cantonments Ordinance (CXXXVII of 2002), S. 243 & First Sched., Entry No. 9---Cantonment Board, powers of---Parking fee on commercial vehicles, levy of---Legality---Cantonment Board levied parking fee on commercial vehicles plying within the city on each and every stop i.e. general bus stand situated in the cantonment area of the city---High Court found that since there was no provision in the Cantonment Act, 1924, empowering the Board to charge parking fee, such levy was without lawful authority---Contention of Cantonment Board was that it was fully empowered to impose such parking fee under S. 200 of Cantonments Act, 1924, and also under of S. 243 read with First Schedule, Entry No. 9 of the Cantonments Ordinance, 2002---Validity---Section 200 of Cantonments Act, 1924, ,mentioned levy of stallages, rent and fee for providing stall, shop, standing shed, pen and for other defined commercial activities on the vendors dealing in goods and for the slaughter of animals in public market or public slaughter house respectively and that too subject to sanction by the competent authority---Parking fee was not referred to in S. 200 of Cantonments Act, 1924---Cantonment Board had no authority to enlarge the scope of a charging section, and include conjectures and or read some activity which was not envisioned or was not the contemplation of the charging section (i.e. S. 200 of Cantonments Act, 1924)---Although power to impose parking fee was available under the Cantonments Ordinance, 2002, but said Ordinance had not as yet been enforced---Federal Government had not issued any notification so far so as to make the Cantonments Ordinance, 2002, operational---Appeal filed by Cantonment Board was dismissed accordingly.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630 distinguished.

McCarthy and Stone (Development) Ltd. v. London Borough of Richmond Upon Thames 1994 SCMR 1393 and Exide Pakistan Limited v. Cantonment Board 2012 CLC 1124 ref.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Appellant.

Qasim Mir Jat, Additional A.-G., Sindh, Dr. Saeed Ahmed Qureshi, Focal person for Chief Secretary of Sindh and Ms. Lubna Salahuddin, Additional Secy. Local Government for Respondents Nos.7 to 12.

Date of hearing: 20th May, 2015.

2015 S C M R 1391

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ejaz Afzal Khan, JJ

COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS HOUSE, KARACHI and others---Appellants

versus

AKHTER HUSSAIN and another---Respondents

Civil Appeal No. 1549 of 2003, decided on 28th April, 2015.

(On appeal against the judgment dated 19-4-2003, passed by the High Court of Sindh, Karachi, in W.P. No. 16 of 2003)

Customs Act (IV of 1969)---

----Ss. 79(1), proviso & 205---Import of consignment---Bill of entry, amendment in---Scope---Upon arrival of consignment importer filed bill of entry along with a request under proviso to S. 79(1) of the Customs Act, 1969, on the back of the bill of entry, for carrying out 100% examination of the consignment for determination of the correct description, quantity, PTC Heading, etc.---Meanwhile the supplier abroad informed the importer that the clearing invoice was not correct and certain items had been missed or indicated incorrectly---Importer immediately applied to the customs authorities seeking amendment in the bill of entry, under S. 205 of the Customs Act, 1969---Customs authorities refused to amend the bill of entry contending that amendment sought in the bill of entry after its filing, fell within the termmis-declaration---Validity---Record showed that at the time of filing bill of entry, importer had made a request in terms of proviso to S. 79(1) of the Customs Act, 1969, for examination of the goods, which request was allowed by customs authorities---Record further showed that within the stipulated time a formal application was made seeking amendment of the bill of entry---High Court had correctly allowed importer's application for amendment of bill of entry and directed customs authorities to finalize the goods being perishable---Appeal filed by customs authorities was dismissed accordingly.

Raja Muhammad Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Respondent No.1.

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.2.

Date of hearing: 28th April, 2015.

2015 S C M R 1394

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

MUHAMMAD SADIQ and others---Petitioners

versus

The STATE and another---Respondents

Criminal Petition No.247 of 2015, decided on 5th May, 2015.

(Against the order dated 9-4-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3522-B of 2015)

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

----Ss. 497 & 498---"Pre-arrest" and "post-arrest" bail---Distinction---"Pre-arrest" bail was an extraordinary relief, whereas "post-arrest" bail was an ordinary relief.

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

----Ss. 498 & 497(2)---Pre-arrest bail, grant of---Scope---Mala fide of investigating officer or complainant---Further inquiry---Bail before arrest was meant to protect innocent citizens who had been involved in heinous offences with mala fide and ulterior motives---While seeking pre-arrest bail it was the duty of the accused to establish and prove mala fide on part of the investigating agency or the complainant---Bail before arrest could not be granted unless person seeking it satisfied conditions specified under S. 497(2), Cr.P.C., and established existence of reasonable grounds leading to believe that he was not guilty of offence alleged against him and there were in fact sufficient grounds warranting further inquiry.

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

----S. 498---Second pre-arrest bail application, filing of---Forum---When accused failed to prove any mala fide or ulterior motive in the first pre-arrest bail petition before the Additional Sessions Judge or before the High Court, then the only remedy available to him was of challenging the said order before the Supreme Court or before the High Court in case bail before arrest was declined by the Sessions Court.

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

----S. 498---Penal Code (XLV of 1860), S. 365---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail, refusal of---Kidnapping or abducting with intent secretly and wrongfully to confine person---Filing of numerous pre-arrest bail applications---Effect---Misuse of law---First pre-arrest bail application filed by accused persons before Additional Sessions Judge was dismissed on merits---Pre-arrest bail application filed by the accused persons before the High Court was dismissed as withdrawn---Second pre-arrest bail application filed by accused persons before the Additional Sessions Judge was also dismissed, whereafter they were granted protective bail by the High Court---Accused persons filed their third pre-arrest bail application before the Additional Sessions Judge, which was also dismissed---Contention of accused persons that after dismissal of their first pre-arrest bail application by the Additional Sessions Judge, S. 365, P.P.C. was deleted by the investigating officer, therefore, fresh grounds were available for filing another pre-arrest bail application; that the High Court had granted them protective bail for filing their third pre-arrest bail application before the Additional Sessions Judge---Validity---When the counsel for accused persons had withdrawn their pre-arrest bail application filed before the High Court, the accused persons could not avail such remedy even after deletion of S. 365, P.P.C., by the investigating officer as it had attained finality---Accused persons adopted the policy of hide and seek by moving a number of pre-arrest bail applications---High Court without taking into consideration that bail application moved by accused persons had already been dismissed, granted protective bail to them---High Court while granting protective bail to accused persons did not apply the correct law as their application for protective bail could not be entertained---Conduct of accused persons in the present case was sufficient to refuse them relief of pre-arrest bail---Supreme Court observed that filing of pre-arrest bail petitions again and again amounted to misuse of law and also increased the backlog of the courts, and that such trend had to be stopped by the courts below---Petition was dismissed accordingly and leave to appeal was refused.

Ch. Muhammad Maqsood Ahmed, Advocate Supreme Court for Petitioner along with Petitioners in person.

Ch. M. Waheed Khan, Additional P.-G. Punjab and M. Saleem, S.I. P.S. Kamoke for the State.

Justice (R) Khurshid Anwar Bhinder, Advocate Supreme Court for the Complainant.

Date of hearing: 5th May, 2015.

2015 S C M R 1398

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Mushir Alam, JJ

Mst. RESHAM BIBI and others---Petitioners

versus

ALI MUHAMMAD and others---Respondents

Civil Petition No.1349 of 2013, decided on 17th October, 2014.

(Against judgment dated 30-4-2013 of Lahore High Court, Lahore, passed in Civil Revision No.3025 of 2004)

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---Production of additional evidence at revisional stage---Permissibility---Production of additional evidence was normally not encouraged at revisional stage---However, when any official record sought to be relied upon had direct bearing on the merits of the case, the court may examine the implication of such official record to arrive at a just and proper conclusion.

Tariq Masood, Advocate Supreme Court for Petitioners.

Taqi Ahmed Khan, Advocate Supreme Court for Respondents Nos. 5(i and ii).

Nemo for Respondents Nos. 5(iii) and 6.

Date of hearing: 17th October, 2014.

2015 S C M R 1401

[Supreme Court of Pakistan]

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

Rana TANVEER KHAN---Appellant

versus

NASEER-UD-DIN and others---Respondents

Civil Appeal No. 125-L of 2014, decided on 13th June, 2014.

(Against the order dated 27-4-2011 of the Lahore High Court, Lahore passed in C.R. No. 1383 of 2011)

(a) Constitution of Pakistan---

----Art. 185(3)---Leave granting order by the Supreme Court---Scope---Such order was not an enunciation of law by the Supreme Court.

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

----O. XVII, R. 3---Failure to produce evidence---Plaintiff failing to produce evidence despite being put on notice/cautioned by Trial Court---Effect---Right of evidence closed by Trial Court---Once the case was fixed by the Court for recording the evidence of the party, it was the direction of the Court to do the needful, and the party had the obligation to adduce evidence without there being any fresh direction by the Court---However, where the party made a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it failed to do so, for such date(s), the provisions of O. XVII, R. 3, C.P.C. could be attracted, especially in the circumstances when adequate opportunities on the request of the party had been availed and caution was also issued on one of such date(s), as being the last opportunity---In the present case, the plaintiff-appellant had availed four opportunities to produce his evidence and was cautioned on two such occasions, which meant that the plaintiff was put to notice that if he failed to adduce evidence, action shall be taken against him---When evidence of plaintiff was closed in terms of O. XVII, R. 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that such opportunities granted to the plaintiff were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions of O. XVII, R. 3, C.P.C. and his evidence was rightly closed by the Trial Court---Appeal was dismissed accordingly.

Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 distinguished.

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

----O. XVII, R. 3---Failure of party to produce evidence despite being put on notice/cautioned by court---Court closing right of party to produce evidence---Right of party whose evidence is closed to have its statement recorded---Scope---Plaintiff had filed a suit, in which issues were framed and the parties were put to trial---Plaintiff, on his request, availed four opportunities for adducing his evidence and on two such occasions he was cautioned of further opportunity as being the last one, yet he failed to produce his evidence---Resultantly, by applying the provisions of O. XVII, R. 3, C.P.C., the evidence of the plaintiff was closed and the suit was dismissed for the lack of proof---Contention of plaintiff was that he should have been asked by the court to at least have his statement recorded (after his right of producing evidence was closed)---Validity---In every case where the 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---Where the party was present in the 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, but where the case was finally decided a ground should be specifically set in the memo of appeal/revision as the case may 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---From the record of the present case it did not transpire if the plaintiff was present on the day when his evidence was closed and/or he asked the court to be examined---Such had never been the case of the plaintiff throughout the proceedings of the present case at any stage, as there was no ground set out in the first memo of appeal (before Appellate Court) or in the revision petition before the High Court---Provisions of O. XVII, R. 3, C.P.C, had been correctly applied in the present case---Appeal was dismissed accordingly.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 ref.

M. Vehniwal, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Appellant.

Hammad Akbar, Advocate Supreme Court for Respondent No.1.

Date of hearing: 13th June, 2014.

2015 S C M R 1406

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

NATIONAL LOGISTIC CELL---Appellant

versus

IRFAN KHAN and others---Respondents

Civil Appeal No.1000 of 2006, decided on 30th January, 2015.

(Against judgment dated 26-4-2006 of High Court of Sindh at Karachi, passed in HCA No.329 of 2005)

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for compensation---Composite negligence of the defendants---Joint and several liability---Vicarious liability of an organization for rash and negligent driving by a driver of its vehicle---Scope---Deceased and three other persons were killed in a road accident caused by the rash and negligent driving of the defendant, who was driving a trailer owned by a Government organization---At the time of the accident repairing work on one side of road was being carried out by the City District Government Authority, therefore it was closed for traffic, and the traffic was diverted to the other side of the road, which was being used by the traffic from both ways---Legal heirs of deceased/plaintiffs filed suit for compensation under the Fatal Accidents Act, 1855, against the driver, the Government organization, and the City District Government Authority (collectively "the defendants")---Suit was decided in favour of plaintiffs and (High) Court found that death of the deceased was caused by the composite negligence and wrongful act of all the defendants; that City District Government Authority was required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights and diversion signboards for smooth flow of the traffic and should have also deployed traffic constables on the road---(High) Court held that the defendants were jointly and severally liable to the plaintiffs in the sum of Rs.27,097,43.62, including compensation of Rs.300,000 for each of deceased's minor children, with profit/mark-up at the rate of 15% per annum from the date of judgment till recovery of the amount with costs---Division Bench of High Court/Appellate Court maintained the judgment and decree, but reduced the compensation to minor children from Rs.300,000 to Rs.100,000 each---Contention of Government organization was that the City District Government authority was solely responsible for the accident, therefore, suit should have been decreed against it alone---Validity---Present case was one of composite negligence---Accident that took life of the deceased and three other persons was caused due to the negligence of the driver of the Government organization coupled with negligence of the City District Government Authority for its failure to take precautionary and preventive measures to avert any untoward happening---Government organization on one hand failed to cross examine any of the plaintiff's' witness on material aspect of the case and secondly failed to lead any evidence to rebut the claim in the suit---Widow of deceased/plaintiff herself and through her witnesses established that City District Government Authority had failed to perform its duty of care as there was no light and or cautionary signs forewarning or putting commuters on lookout of any potential hazard nor any divider or fence was placed to make road travel safe for the commuters, and such evidence had gone unchallenged---Widow of deceased/plaintiff also led evidence to establish that the accident was caused by the wrongful act of the driver of the Government organization, thus it was vicariously liable---Plaintiffs did not have to assess and seek inter se proportionality of wrong and or liability of each of the tortfeasor, nor does the Court ordinarily enter into such controversy, in absence of any issue, necessitating such determination between the joint tortfeasors inter se---In case of composite negligence by two or more persons each of the tortfeasor was jointly and severally liable to make good the loss to the persons who had suffered loss of beloved one or suffered injury or damage to his person or property---One of the joint tortfeasor in a case could not turn around and shun his liability and pass on the entire liability on the other joint tortfeasor/wrong doer---Contention of Government organization regarding sole responsibility of City District Government Authority for the accident was dismissed in circumstances---Appeal was dismissed accordingly.

Municipal Corporation of Delhi v. Sushila Devi AIR 1999 SC 1929; Municipal Corporation of Delhi v. Subhagwanti AIR 1966 SC 1750; Madhu Kaur v. Government of N.C.T. of Delhi and another AIR 2010 (NOC) 395; Irfan Khan v. Islamic Republic of Pakistan 2005 MLD 1409 and Marine Exports (P) Ltd. v. P. Radhakrishan and others AIR 1984 Mad. 358 ref.

(b) Words and phrases---

----"Negligence"---Definition.

Oxford Dictionary (Volume-VII of 1933) and Black's Law Dictionary (Ninth Edition) ref.

(c) Tort---

----Negligence---"Composite negligence"--- Meaning and scope---Composite negligence meant that where the wrong, damage or injury was caused by two or more persons, each of the wrongdoer was jointly and severally liable to make good the loss to the claimant who suffered at the hands of such tortfeasors---Plaintiff had the prerogative to proceed against any or all such wrongdoers---Plaintiff was not saddled with the responsibility to establish separate liability against each of the tortfeasor nor was it considered the responsibility of the Court to ordinarily determine liability of each tortfeasor separately, proportionately and/or independently in absence of any such issue at the trial.

(d) Tort---

----Negligence--- "Composite negligence" and "contributory negligence"---Distinction---'Composite negligence' referred to the negligence on part of two or more persons---Where a person was injured as a result of negligence on the part of two or more wrongdoers, it was said that the person was injured on account of the composite negligence of those wrongdoers---In such a case, each wrongdoer was jointly or severally liable to the injured for payment of the entire damages and the injured person had the choice of proceeding against all or any of them---On the other hand, where a person suffered injury, partly due to his own negligence, then the negligence on the part of the injured which contributed to the accident was referred to as his contributory negligence.

T.O. Anthony v. Karvarnan and others (2008) 3 SCC 748 and Pawan Kumar and another v. Harkishan Dass Mohan Lal and others 2014 (3) SCC 590 ref.

(e) Tort---

----Negligence---Duty of care---Burden of proof---Scope---In a case where plaintiff sued a civic agency or a person for its failure or neglect to perform its duty of care resulting in damage to plaintiff's person and or property, initial burden was on the plaintiff to plead and show such negligence and failure to perform duty of care by such person or agency.

(f) Tort---

----Negligence---Composite negligence---Joint and several liability of defendants---Compensation, payment of---Scope---In a case of composite negligence it was the prerogative of the plaintiff, who had suffered loss or injury to recover the entire amount from either or any of the solvent tortfeasor, who may in turn seek recovery of proportionate or whole amount from the other tortfeasor in appropriate proceedings, after making good the compensation to the decree holder.

Anis-ud-Din, Advocate Supreme Court and Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Nasir Maqsood, Advocate Supreme Court for Respondents Nos.1 to 3.

Ex parte for Respondents Nos.4 to 6.

Date of hearing: 30th January, 2015.

2015 S C M R 1418

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Mushir Alam, JJ

Mst. BASHARAT JEHAN---Appellant

versus

DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI and others---Respondents

Civil Appeal No. 1184 of 2011, decided on 11th July, 2014.

(Against judgment dated 14-1-2011 of Federal Service Tribunal, Islamabad passed in Appeal No.325(P)CS/2010)

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 3(2)---Civil service---Initial appointment---Relaxation in age prescribed for initial appointment--- Typographical error in advertisement for post qua upper age limit of applicant---Vested right of civil servant on issuance of appointment letter and joining of service---Scope--- Appellant applied for the position of Assistant Librarian (BPS-9)---Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases---Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits---Appellant was issued appointment letter and accordingly joined service---Along with her joining, appellant furnished certificate of age relaxation to the authorities---After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment---Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000]; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination---Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation---Validity---Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part---Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]---If the notification/memorandum in question had gone unnoticed by the Government department, it was not the fault of appellant---Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect---Appellant had joined the service after appearing in the test and qualifying in the interview---For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised---In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was "not less than 18 years or more than 35 years of age"---However it was specifically stipulated in the said Rule that the said age limit "may be relaxed in exceptional cases upto 45 years by the competent authority"---Said Rule was not considered by the Government department in the present case---Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily---Appellant had applied for the advertised post giving her full particulars, including her qualification and age---At the time of joining she submitted the age relaxation certificate---Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority---Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service---Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department---Appellant, in such circumstances, was justified to urge that she had been discriminated against---General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules---Nothing was brought on record to show that such directive/policy decision expressed through memorandum/notification was not applicable to the Government department in question---Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order---Appeal was allowed accordingly.

Ghulam Murtaza v. Federation of Pakistan 2011 PLC (C.S.) 709; Civil Petitions Nos. 426-K to 436-K of 2008 and Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1482 ref.

(b) Civil service---

----Appointment letter, cancellation of---Scope---Vested right of appointment---Once a person was appointed after fulfilling all the codal formalities and appointment letter was issued, a vested right was created and appointment letter could not be withdrawn.

Ghulam Murtaza v. Federation of Pakistan 2011 PLC (C.S.) 709; Civil Petitions Nos. 426-K to 436-K of 2008 and Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1482 ref.

(c) Civil service---

----Appointment--- Vested right of appointment--- Scope--- Locus poenitentiae, doctrine of---Once a right was accrued to a civil servant by appointment letter issued to him after complying with all the codal formalities, the same could not be taken away on mere assumption, supposition, whims and fancy of any executive functionary---Such right once vested, could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae.

Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

Ghulam Nabi Khan, Advocate Supreme Court for Appellant.

Sajid Ilyas Bhatti, DAG for Respondents.

Date of hearing: 11th July, 2014.

2015 S C M R 1428

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Gulzar Ahmed and Maqbool Baqar, JJ

MEHMOOD KHAN and others---Petitioners

versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

Civil Petitions Nos.1774, 1783 and 410-Q of 2014, decided on 27th May, 2015.

(Against the judgment dated 20-8-2014 of the High Court of Balochistan, Quetta passed on C.P. No. 332 of 2012)

Land Acquisition Act (I of 1894)---

----S. 4---Quetta Development Authority Ordinance (IV of 1978), S. 113---Balochistan Land Lease Policy, 2000, Clauses 3(2) & 4(2)---Constitution of Pakistan, Arts. 24 & 185(3)---Land acquired by Provincial Government for a public purpose---Unutilized part of acquired land allotted to a private person on lease---Fraudulent and unlawful transaction---Land owned by the predecessor-in-interest of the petitioner was acquired by the Provincial Government for construction of a bridge---Bridge was constructed by the City Development Authority ("Development Authority"), however, a, portion of the acquired land ("subject land") which remained unutilized and was reserved for the future expansion of the bridge, was purportedly allotted to the respondent/purported allottee by the Development Authority---Legality---Admittedly subject land was neither owned by the Municipal Corporation nor by the Development Authority, but was owned by the Provincial Government, therefore none of the said bodies were competent or authorized to sell/allot the subject land---Even otherwise in terms of S. 113 of the Quetta Development Authority Ordinance, 1978, firstly, it was an essential pre-requisite to determine as to whether or not the sale of any land vested in or acquired by the Development Authority would be in the public interest; secondly, it was mandatory to publish notice of the proposed sale by Development Authority in the newspapers published in the city, and thirdly, and in the foremost, it was required that in case the land was an acquired land, it be first offered to the person(s) from whom the same had been acquired---None of the said essential statutory pre-requisites were met in respect of the allotment in question---Since admittedly the subject land was owned by the Provincial Government, it was to be dealt with in terms of Clause 4(2) of the Balochistan Land Lease Policy, 2000 ("the Policy") [published in the Balochistan Gazette on 1-12-2000] which clause mandated that all state land falling within five miles of the limits of Municipal Committee/Municipal Corporation and within three miles of Town Committee would be reserved for further utilization---Subject land, in the present case, fell under the said restriction/prohibition and was therefore not saleable at all---Subject land was part of the land acquired for the construction of a bridge and after construction of the first phase was reserved for the construction of second phase, therefore it could not have been allotted on lease---Further also in view of Clause 3(2) of the Policy, which prescribed that land could only be leased provided it was not required for "public building, other public sector projects", subject land could not have been leased out at all---Subject land was compulsorily acquired by the Provincial Government for a public purpose, "public purpose" having been exempted from the bar against compulsory acquisition as prescribed by Art. 24 of the Constitution, which provision guaranteed protection of proprietary rights in accordance with law---Not utilizing the subject land for the public purpose and selling the same to a private person was violative of the object, spirit, principle and the purpose of the provisions of Art. 24 of the Constitution---Even in case the subject land was not required for any public purpose, and could have been lawfully sold, the predecessor-in-interest of the petitioner, from whom the same was acquired ought to have been provided an opportunity to participate in the process so as to enable him to make an offer for its purchase in accordance with law---In the preset case, allotment of subject land to purported allottee was affected through fraudulent machinations in violation of statutory provisions and the constitutional mandate--- Allotment in question was wholly illegal, incompetent and void--- Petition for leave to appeal was dismissed accordingly.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioners Nos.1 to 3 (in C.P. No. 774 of 2014).

Ali Ahmed Kurd, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioner No.4 (in C.P. No. 774 of 2014).

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No. 1783 of 2014).

Muhammad Qahir Shah, Advocate Supreme Court for Petitioners (in 410-Q of 2014).

Nemo for Respondents.

Date of hearing: 27th May, 2015.

2015 S C M R 1440

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

Mst. NASREEN ZAHRA and others---Appellants

Versus

MULTAN DEVELOPMENT AUTHORITY, MULTAN and others---Respondents

C.As. Nos.1011, 2786 and Civil Petition No.538 of 2006, decided on 7th July, 2015.

(On appeal against a common judgment dated 31-5-2006 passed by the Lahore High Court, Multan Bench, in I.C.A. No. 229 of 1999 and R.F.A. No. 328 of 2001)

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

----S. 4---Punjab Acquisition of Land (Housing) Act (VIII of 1973), S. 4(1) [since repealed]---Punjab Development of Cities Act (XIX of 1976), S. 24---Land acquired for benefit of Provincial Government---Liability of Provincial Government to pay compensation---Scope---Notification was issued under S. 4 of the Land Acquisition Act, 1894 by the Collector notifying the acquisition of certain lands by Provincial Government at the public expense for the public interest i.e., construction of bye-pass---Another Notification was issued under S. 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 [since repealed] read with Chapter VI of the Punjab Development of Cities Act, 1976 by the Deputy Commissioner, notifying that the land specified in the notification was needed by the City Development Authority at its expense for the construction of bye-pass Phase-II, which shall be deemed to be a Housing Scheme under the Punjab Development of Cities Act, 1976---Question as to whether the Provincial Government was liable to pay compensation for the land acquired for construction of the bye-pass---First Notification issued under S. 4 of the Land Acquisition Act, 1894, showed that the land was acquired by Provincial Government for public purpose i.e. construction of bye-pass---Beneficiary of land in terms of the said notification was the Provincial Government and such fact alone was sufficient to establish its liability for payment of compensation for the land acquired---Order accordingly.

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

----Ss. 31(1), (2), 34 & 18---Payment of compensation or deposit of sum in the Court---Payment of interest---Scope---Provisions of S. 31 of the Land Acquisition Act, 1894, made it clear that on making of award, the Collector was bound to tender the payment of compensation awarded by him to the person entitled thereto according to the award---In case the Collector was prevented from tendering compensation awarded by him, the Collector was required to deposit the compensation in the Court to which Reference under S. 18 of the Land Acquisition Act, 1894, was made---Compliance of the provision of S. 31 of the Land Acquisition Act, 1894, by the Collector was mandatory for the simple reason that its non-compliance gave rise to penal consequences provided in S. 34 of the said Act i.e. payment of interest---Payment of such interest was mandatory---Absence of any proof that compensation amount awarded by the Collector was tendered to the person entitled thereto or was deposited with the Referee Court, would establish the claim for payment of interest, as provided under S. 34 of the Land Acquisition Act, 1894.

Collector of Land Acquisition, Nowshera v. Fazal Rahim and 3 others 1984 SCMR 1043 ref.

Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court and Muhammad Ali Shah Gillani, Advocate Supreme Court for Appellants (in C.A. 1011 and C.P. No. 538 of 2006).

Razzaq A. Mirza, Additional A.-G. Punjab for Appellants (in C.A. No. 2786 of 2006 also on Court's Notice in C.P. 538 and C.A. 1011 of 2006)

Anwar Kamal, Senior Advocate Supreme Court for Respondent No.1 (in C.A. 1011 of 2006).

Ex parte for Respondent No.2 (in C.A. No. 1011 of 2006).

Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court and Muhammad Ali Shah Gillani, Advocate Supreme Court for Respondent No.1 (in C.A. No. 2786 of 2006).

Anwar Kamal, Senior Advocate Supreme Court for Respondent No.2 (in C.A. No. 2786 of 2006).

Anwar Kamal, Senior Advocate Supreme Court for Respondent No.7 (in C.P. No. 538 of 2006).

Date of hearing: 29th January, 2015.

2015 S C M R 1449

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

AMERICAN INTERNATIONAL SCHOOL SYSTEM---Petitioner

Versus

Mian MUHAMMAD RAMZAN and others---Respondents

Civil Petitions Nos.1700 and 1701 of 2011, decided on 9th December, 2014.

(Against judgment dated 28-9-2011 of Lahore High Court, Lahore, passed in Intra Court Appeals Nos.154 and 155 of 2009)

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3(1)---Scheme for Management and Disposal of Urban Properties, 1977, Paragraphs, 1(d), 11, 12 & 30---Constitution of Pakistan, Art. 185(3)---Allotment of 'residual evacuee property on the directions of the Provincial Chief Minister without an open auction---Legality---Public functionaries dealing with public/state land, duty of---Scope---Member (Colonies), Board of Revenue, on the directions of the Provincial Chief Minister allotted evacuee property in question to a school by way of private treaty---Contentions were that as per Scheme for Management and Disposal of Urban Properties, 1977, the competent authority to deal with the evacuee property was Member, Board of Revenue (Residual Properties) appointed by the Provincial Government, but in the present case subject land was sold out to the school by the Member (Colonies), Board of Revenue, at a throw away price, who had no jurisdiction to deal with the same; that the school did not qualify the criteria laid down under the said Scheme of 1977, for allotment of land, and that under the said Scheme of 1977, land could only be sold out through an open auction---Validity---Subject land's status was 'residual evacuee property' and a "building site'' (as defined under the Scheme for Management and Disposal of Urban Properties, 1977)---Admittedly, in the present case, no sealed tenders or bids from any interested contenders were ever invited in terms of the requirement laid down under the Scheme for Management and Disposal of Urban Properties, 1977---School was not eligible to be allotted evacuee land under the Scheme of 1977---Nothing on record substantiated the claim of the school that it was allotted subject land in the public interest---Record of present case showed that on mere desire of the then Chief Minister, the Member (Colonies) Board of Revenue, doled out valuable "residual evacuee property" at a throw away price to the school, knowing fully well that the subject property was not state land and that the subject evacuee land could only be disposed of by Member, Board of Revenue (Residual Properties) through an open auction in terms of the Scheme for Management and Disposal of Urban Properties, 1977---All public functionaries including the Chief Minister was bound to deal with the public property strictly in accordance with the parameters laid by the law, and the rules and regulation framed thereunder---Chief Minister did not possess any plenary authority and/or jurisdiction to allot any land as a matter of grace or favour at his whims and fancy, but in accordance with law---Public functionaries were the custodians of the public/state land, which could only be disposed of in accordance with law---Government had no unfettered authority to dole out any property in any manner on its own whims and fancy--- Petition for leave to appeal was dismissed accordingly.

Abdul Haq Indher v. Province of Sindh 2000 SCMR 907; Iqbal Hussain v. Province of Sindh 2008 SCMR 105; Union Council Dhabeji v. Al-Noor Textile Mills Ltd. 1993 SCMR 7; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Abdul Haq Indher v. Province of Sindh 2000 SCMR 907; Al-Shafique Housing Society v. P.M.A. PLD 1992 SC 113; Taj Muhammad v. Town Committee 1994 CLC 2214 and Sindh Peoples Welfare Trust v. Government of Sindh 2005 CLC 713 ref.

(b) Interpretation of statutes---

----Provision, heading of---Heading of any provision did not govern or control the substantive provision, and it may be used in case of an ambiguity to understand the purport and object of any provision and or enactment thereof.

(c) Constitution of Pakistan---

----Preamble---Any Government under the constitutional dispensation derived power and authority under the Constitution itself and or under the legislative instrumentalities as may be conferred by the competent legislature.

(d) Public functionary---

----Subservience to the Constitution and the law---Any public functionary, how high so ever it may be, was subservient to the Constitution and law and had to act within the boundaries assigned by the Constitution and law framed thereunder.

(e) Constitution of Pakistan---

----Arts. 5, 129 & 130(5)---Chief Minister of a Province, duty of---Subservience to the Constitution and the law---Chief Minister, under the constitutional dispensation was neither the King nor Monarch but, was in the domain of trust and under Art. 5 of the Constitution he was obligated to obey the Constitution and law like any other ordinary citizen---Although Chief Minister exercised executive authority as Head of the Provincial Government either directly and or through the Provincial Ministers, in the name of Governor, however exercise of such authority was not brazen or arbitrary but subject to the Constitution, as he had taken oath to "discharge his duties and perform" his functions, honestly, to the best of his ability, faithfully in accordance with Constitution and the law---Desire and direction of Chief Minister, how admirable or praiseworthy it may be, could not be implemented by the subordinate formation in utter disregard and breach of law, and or rules and or regulation framed hereunder---All executive orders emanating from highest of the authority must be backed by law.

Abdul Haq Indher v. Province of Sindh 2000 SCMR 907 and Iqbal Hussain v. Province of Sindh 2008 SCMR 105 ref.

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

Ch. Amir Hussain, Senior Advocate Supreme Court for Respondents Nos.1 to 3 (in C.P. No. 1700 of 2011).

Ch. Amir Hussain, Senior Advocate Supreme Court for Respondents Nos.1 to 2 (in C.P. No.1701 of 2011).

Rana Shamshad Khan, A.A.G. Punjab for Respondents Nos.4 to 8 (in C.P. No.1700 of 2011)

Rana Shamshad Khan, A.A.G. Punjab for Respondents Nos.3 to 7 (in C.P. No.1701 of 2011)

Date of hearing: 9th December, 2014.

2015 S C M R 1461

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

NAJM KORESHI---Petitioner

versus

CHASE MANHATTAN BANK NOW MUSLIM COMMERCIAL LIMITED, LAHORE and others---Respondents

Civil Petitions Nos.816-L and 817-L of 2009, decided on 5th June, 2015.

(On appeal from the judgment dated 31-3-2009 of the Lahore High Court, Lahore passed in FAO No.143 of 2007 and C.R. 1058 of 2007)

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

----Ss. 34 & 33---Decree---Interest on the decretal amount, calculation of---Interest pendente lite---Compound interest---Interest pendente lite/compound interest only applicable if expressly ordered in decree by the Court---Suit filed by plaintiff against the Bank was decreed and a decree for recovery of £152,542.97 was granted in favour of the plaintiff and against the defendant with costs and 'periodically prevalent interest as prayed for till realization of the decretal amount'---Question as to whether interest was to be calculated on the basis of principal amount decreed or the aggregate of the principal amount and unpaid/accrued interest thereon---Payment of interest on the decretal amount was an obligation of the judgment-debtor Bank under the decree in the present case---Such obligation continued until the decretal amount was paid in full---On such reasoning unpaid interest accruing until payment of the principal amount of the decree should add on to the remaining sum of the principal amount adjudged and become a part of the balance decretal amount that was subject to interest---However, in the present case, there was no order in the decree for payment of interest on the unpaid amount of accrued interest---Decree under execution, in the present case, neither granted interest for the period prior to filing of the suit nor awarded interest on the aggregate of the principal amount of the decree and interest pendente lite---Interest pendente lite and further interest were both discretionary reliefs granted under S. 34, C.P.C.---Unless expressly ordered in a decree such interest accrued on principal amount adjudged and not on the aggregate of that amount with accumulated interest---Decree, in the present case, was silent about the accrual of interest on interest or on any aggregate amount, and clearly did not order the charging of compound interest---On the other hand, it ordered for interest to be charged and paid until realization of the decretal amount but the meaning of the term "decretal amount" was not given---Net effect, in the present case, was that accrual of interest occured at simple rate rather than compound rate---Supreme Court remanded the case to the Executing Court for undertaking afresh the calculation of liability of the judgment-debtor bank and the realization of dues under the decree---Petition for leave to appeal was converted into appeal and partially allowed accordingly.

M. Y. Malik & Co. v. Splendours International 1997 SCMR 309 ref.

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

----S. 34---Interest on decretal amount---Discretion of court to award interest at such rates as it deemed reasonable---Scope---Interest pendente lite/compound interest only applicable if expressly ordered in decree by the Court---Under the provisions of S. 34, C.P.C. the Court passing a decree had discretion to order interest at such rates as it deemed reasonable, accruing for different periods either on principal or aggregate amounts---Section 34, C.P.C., expressly contemplated the award of interest pendente lite on the principal sum adjudged and also post decretal further interest on the aggregate of the said principal sum together with interest accrued thereon till the date of payment of the aggregate amount---As the award of interest on a decree was discretionary therefore, the terms on which it was ordered must be spelled out clearly in the contents of the decree---Otherwise, silence of the decree in the matter of further interest was to be deemed as refusal under S. 34(2), C.P.C.---Rate at which interest was ordered to accrue and whether such interest was to be calculated at a simple rate or a compound rate were also discretionary elements that ought to be specified in a decree.

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

----S. 34---Interest on decretal amount---Pre-requisites---For interest under the decree to be applied and calculated, it was necessary that the "decretal amount", was an ascertained or a readily ascertainable amount.

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

----S. 34 & O. XXI, Rr. 1 & 23-A---Interest on decretal amount---Deposit of decretal amount in court---Effect---Deposit in court under O.XXI, R. 1, C.P.C. of money payable under a decree entitled a judgment debtor to the relief of suspension in the accrual of further interest.

Muhammad Sadiq v. WAPDA PLD 2003 SC 290 ref.

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

----Ss. 33 & 34---Decree---Interest on decretal amount---Delay in the discharge of the interest liability under the decree---Appropriation of payments, principle of---Scope---Delay in the discharge of moneys due under a decree that ordered payment of principal amount adjudged, interest and costs attracted the principle of appropriation of payments---General principle of appropriation of payments towards a decretal amount was that such an amount was to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustment, was to be made first in payment of interest and costs and thereafter in payment of the principal amount---Such principle was, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree---As and when such an agreement was pleaded, the onus of proving was always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule.

Meka Venkatadri v. Raja Parthasarathy AIR 1922 PC 233; Rai Bahadur Seth Nemichand v. Seth Radha Kishen AIR 1922 PC 26 and Messrs I.C.D.S. Ltd. v. Smithaben H. Patel AIR 1999 SC 1036 ref.

(f) Administration of justice---

----Closed proceedings, re-opening of---Jurisdiction of court, ascertainment of---Consent of parties---Consent of parties alone could not reopen closed proceedings nor satisfy legal conditions predicating the exercise of jurisdiction by a court of law.

Rai Ahmed Nawaz Kharal, Advocate Supreme Court for Petitioner along with Petitioner.

Munawar-us-Salam, Advocate Supreme Court for Respondent No.1.

Date of hearing: 28th April, 2015.

2015 S C M R 1472

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

CIVIL PETITIONS NOS.565-568 AND 582-584 OF 2014

(On appeal against common Judgment dated 17-3-2014, passed by the Islamabad High Court, Islamabad, in I.C.A. No.8 of 2012)

CIVIL PETITIONS NOS.1596-1597, 1602, 1643 AND 2064-2067 OF 2014

(On appeal against common Judgment dated 3-7-2014 passed by the Peshawar High Court, Peshawar, in W.P. No. 2657 of 2012)

CRIMINAL PETITION NO.214 OF 2014

(On appeal against common Judgment dated 17-3-2014, passed by the Islamabad High Court, Islamabad, in I.C.A. No. 8 of 2012)

AND

C.M.A. NO. 3540 OF 2014 IN C.P. NO.565 OF 2014

(For impleadment of Telecom Pensioners Association as Respondent)

PAKISTAN TELECOMMUNICATION EMPLOYEES TRUST (PTET) through M.D., Islamabad and others---Petitioners

versus

MUHAMMAD ARIF and others---Respondents

Civil Petitions No.565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Criminal Petition No.214 of 2014 and C.M.A. No.3540 of 2014 in C.P. No. 565 of 2014, decided on 12th June, 2015.

(a) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 35, 36, 45 & 46(1)(d)---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Pakistan Telecommunication Corporation Employees Pension Fund (as created by a Trust Deed dated the 2nd April, 1994), Para. 2---Constitution of Pakistan, Art. 185(3)---Pension---Serving employees, retired employees and widows of retired employees, who were employed in the Pakistan Telegraph and Telephone Department (T&T Department) and were subsequently transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)---Entitlement of such employees to receive pensionary benefits as fixed by the Federal Government---Grievance of said employees was that pension was being paid to them in accordance with the increase announced by the Federal Government but such increase in pension was abruptly stopped after the year 2009 by the Pakistan Telecommunication Company Limited (the Company)---Validity---Terms and conditions of service of the transferred employees from T&T Department to the Corporation and then to the Company remained unaltered and they continued to be paid the benefits as were admissible to them as employees of T&T Department---Terms and conditions of service and also the rules of service which were applicable to the T&T Department employees while in employment of the Federal Government would continue to be applicable to them on their transfer to the Corporation and then to the Company---Employees of T&T Department who were transferred to the Corporation and then to the Company, would on retirement be entitled to payment of pension according to the one announced by the Federal Government, thus if any increase in pension was announced by the Federal Government for its employees, the same would also apply and be paid to the employees of T&T Department transferred to the Corporation and then to the Company---While the Company may be entitled to fix the terms and conditions of service of its employees so also the provision of pension by the Board of Trustees of the Trust but, as regards the employees of T&T Department transferred to the Corporation and then to the Company, their terms and conditions of service stood protected by the provision of S. 9 of the Pakistan Telecommunication Corporation Act, 1991 [since repealed] and Ss. 35, 36 & 46 of the Pakistan Telecommunication (Re-Organization) Act, 1996, and thus they would be entitled to payment of increase in pension as announced by the Federal Government---Petition for leave to appeal was dismissed accordingly.

Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526 ref.

(b) Constitution of Pakistan---

----Arts. 188 & 189---Review petition pending against a judgment of the Supreme Court---Until such judgment of the Supreme Court was reviewed and some other conclusion was reached, such judgment remained in field and operated as a law pronounced by Supreme Court.

(c) Civil service---

----Pension, right to---Scope---Pension was part of a civil servant's retirement benefit and was not a bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation---Right to pension was conferred by law which could not be arbitrarily abridged or reduced except in accordance with law.

Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others PLD 1996 SC 222 ref.

Khalid Javed Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos.565 and 566 of 2014).

Zia-ul-Haq Makhdoom, Advocate Supreme Court for Petitioners (in C.P. No. 567 of 2014).

Rizwan Ijaz, Advocate Supreme Court and Zia-ul-Haq Makhdoom, Advocate Supreme Court for Petitioners (in C.P. No.568 of 2014).

Shahid Anwar Bajwa, Advocate Supreme Court and Ms. Zahida Awan, EVP (Legal) PTCL for Petitioners (in C.Ps. Nos.582-584, 1596-1597, 1602 and 1643 of 2014).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in Crl. P. 214, C.Ps. Nos.2064-2067 of 2014).

Hashmat Ali Habib, Advocate Supreme Court for the Applicants (in C.M.A. No.3540 of 2014).

Khalil-ur-Rehman, Advocate Supreme Court for Respondents Nos. 1 to 34 (in C.Ps. Nos.565 and 582 of 2014).

Khalil-ur-Rehman, Advocate Supreme Court for Respondents Nos. 1 to 134 (in C.P. No.566 of 2014).

Ghulam Mahboob Khokhar, Advocate Supreme Court for Respondents Nos. 1-4, 6-9, 11-18, 20-51 (in C.Ps. Nos. 567 and 584 of 2014).

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No.1 (in C.P. No.568 of 2014).

Ch. Mushtaq Hussain, Advocate Supreme Court for Respondent No.2 (in C.P. No.568 of 2014).

Ch. Mushtaq Hussain, Advocate Supreme Court for Respondents Nos.1-2 (in C.P. No.583 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-60 (in C.Ps. Nos.1596 and 2066 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondent No.1 (in C.Ps. Nos.1597, 1602 and 2064 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-805 (in C.P. No.1643 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-624 (in C.P. No.2065 of 2014).

Salah-ud-Din Khan, Advocate Supreme Court for Respondents Nos.1-135 (in C.P. No.2067 of 2014).

Dates of hearing: 10th, 27th, 28th November, 1st and 2nd December, 2014

2015 S C M R 1488

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

COLLECTOR OF CUSTOMS, LAHORE and others---Appellants

Versus

Messrs S. FAZAL ILAHI AND SONS through Proprietor---Respondent

Civil Appeal No. 1098 of 2007, decided on 30th June, 2015.

(On appeal against the order dated 1-12-2006 passed by the Lahore High Court, Lahore, in W.P. No.3726 of 2006)

(a) Customs Act (IV of 1969)---

----Ss. 25(4) & 81(4)---Customs Rules, 2001, R. 109---Value of imported goods---Provisional determination of liability by Customs department---Customs department failing to make final determination of liability (despite a lapse of more than one year) due to its own defaults---Effect---Provisional determination of liability not deemed to be final determination---Value of imported goods as shown in the bill of entry was found to be on the lower side by the Customs department---Consequently Customs department made a provisional assessment of the liability of importer and released the goods after obtaining post-dated cheques and indemnity bonds from the importer for the difference in liability on account of higher value of the goods claimed by the Customs department---Customs department contended that the importer could not deposit the required documents within one year in support of the price shown in the bill of entry and did not deposit any proof of payment of price of the imported goods, hence the department could not finalize the matter of liability within the stipulated period of one year; that in terms of S. 81(4) of the Customs Act, 1969, since the final determination of liability could not be made within the period of one year, the provisional determination was deemed to be the final determination of liability---Validity---Customs department after making a provisional assessment of liability in the present case did not proceed in the matter for the determination of final assessment even after a lapse of one year---Neither Customs department sent any notice or demand to the importer seeking corroboration or clarification with regard to any document nor was the importer confronted with any material to substantiate the higher value of the goods as claimed by the Customs department [in terms of S. 25(4) of the Customs Act, 1969 read with R. 109 of the Customs Rules, 2001]---Customs department, in such circumstances, could not use S. 81(4) of the Customs Act, 1969, as a tool to delay the making of final assessment, and consequently consider the provisional assessment as a final assessment---Such use of S.81(4) of the Customs Act, 1969, without affording the importer proper opportunity of contesting the provisional liability, and thus, depriving him of fair trial, could not be justified---Keeping in view the lapses and defaults on the part of the Customs department in the present case, the importer could not be penalized for the default caused by the department---Appeal filed by Customs department was dismissed accordingly.

Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others 1999 CLC 755; Messrs Farooq Woollen Mills v. Collector of Customs, Customs Dryport, Sambrial and 2 others 2004 PTD 795; Collector of Customs, Appraisement, Karachi v. Messrs H. M. Abdullah and another 2004 PTD 2993; Collector of Customs (Appraisement), Karachi v. Messrs Auto Mobile Corporation of Pakistan, Karachi 2005 PTD 2116; Messrs Trade International through Proprietor Habib-ur-Rehman v. Deputy Collector of Customs (Bank Guarantee Section) and 3 others 2005 PTD 1968; Messrs Dewan Farooque Motors Ltd., Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and 2 others 2006 PTD 1276; Sus Motors (Pvt.) Ltd., Karachi v. Federation of Pakistan through Secretary Revenue Division/Chairman, Islamabad and 2 others 2011 PTD 235 and Messrs Crescent Art Fabrics (Pvt.) Ltd. through Managing Director v. Assistant Collector Customs and 4 others 2011 PTD 2851 ref.

(b) Customs Act (IV of 1969)---

----S. 81(4)---Provisional and final determination of liability by Customs Department--- Section 81(4) of the Customs Act, 1969---Scope---Section 81(4) of the Customs Act, 1969, provided that if the final assessment was not completed within the period specified therein, then the provisional assessment shall become final---Said section had been provided as a safeguard to the benefit of the assessee/importer/exporter to save them from unnecessary harassment by Customs authorities by unnecessarily delaying their cases for an indefinite period on the pretext of making a final assessment.

Sh. Izhar-ul-Haq, Advocate Supreme Court for Appellants.

Abdul Ghaffar Mian, Advocate Supreme Court for Respondent.

Date of hearing: 30th June, 2015.

2015 S C M R 1494

[Supreme Court of Pakistan]

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

LUCKY CEMENT LTD.---Appellant

Versus

COMMISSIONER INCOME TAX, ZONE COMPANIES, CIRCLE-5, PESHAWAR---Respondent

Civil Appeals Nos. 150, 151 and 152 of 2006, decided on 10th July, 2015.

(Against the judgment dated 22-11-2005 of the Peshawar High Court, Peshawar passed in Income Tax Reference Nos.117, 118 and 119 of 2003)

Per Mian Saqib Nisar, J.

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 15 to 28---Constitution of a company---Scope---Memorandum of Association---Articles of Association---Memorandum of Association and Articles of Association when read as a whole were the constitution of the company---Memorandum of Association provided and prescribed the object(s) and the purpose(s) for which the company had been established and constituted, with specific reference to the business and the avocations which it could conduct, carry on and undertake---While the Articles of Association were the organizational and governance rules of the company which primarily dealt with the management affairs.

(b) Companies Ordinance (XLVII of 1984)---

----Ss. 15 to 25---Company---Memorandum of Association---Scope---Anything done by a company which was beyond the scope of its Memorandum of Association was ultra vires and thus could not be given any legal sanctity---Company could not engage in a business which was not fairly covered by any of its independent objects, or such objects which were ancillary and incidental to those for which a company had been created and its Memorandum of Association was duly recognized and accepted by the regulatory bodies meant for the incorporation of a company and oversight thereof.

(c) Companies Ordinance (XLVII of 1984)---

----Ss. 15 to 25---Company---Memorandum of Association---Main object of a company, interpretation of---Liberal interpretation by the court---Company may incorporate in its Memorandum of Association, besides the main object of the company and its ancillary purposes, certain other objects as well which may be independent of its main object/business---Company thus may have a primary object and purpose, but still there may also be several other objects mentioned in the objects clauses, and after proper construction of such objects, by resorting to the relevant rules of interpretation, it should be considered whether those were ancillary to the main object of the company or could be held to be independent of each other---Memorandum of Association of a company should be read and construed liberally and be given a wide meaning through literal interpretation of the clause---Since objects were considered to be the permissive activities which a company could undertake in order to do its business, the same should not be given a restrictive meaning---In any case, rigid construction of the Memorandum of Association, unless and until inevitable and insurmountable, must be avoided.

(d) Interpretation of statues---

----Prohibitory clause in a statute, interpretation of---Scope---Under the law of interpretation of statutes, a prohibitory clause, couched in the negative language should be construed and applied strictly---Court should assess and ascertain as to what was the real intent and object behind such a clause, what mischief it had to suppress, circumvent and curb--- However, such prohibitory clause should not be construed and interpreted to render any other specific provision/clause as nugatory, rather for all intents and purposes the rules of harmonious interpretation should be adhered and resorted to and all possible efforts should be made to save each and every provision of the statute.

Per Sh. Azmat Saeed and Mushir Alam, JJ. dissenting with Mian Saqib Nisar, J. [Majority view]

(e) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 30(2)(b), 15(d), (f), 22 & 30---Companies Ordinance (XLVII of 1984), Ss. 15 - 25---Public limited company---'Income from business' or 'income from other sources', determination of---Memorandum of Association---Objects of a company, interpretation of---Public Limited Company (before commencing its business activities) using its surplus money/reserves to invest in various profitable schemes/banks---Question as to whether income/interest generated from such schemes/banks amounted to 'income from business' or 'income from other sources'---Main and primary object of the appellant-public limited company, in the present case, was to set up and run a cement factory---When the cement plant was under construction, and the business of the company had not yet commenced, the company used money lying in its reserves to invest in certain profitable schemes/banks through fund management arrangements---Company earned income/interest through the said schemes/banks---Assessing officer (Deputy Commissioner, Income Tax) assessed such income/interest so received by the company as 'income from other sources' under S. 30(2)(b) of the Income Tax Ordinance, 1979 [since repealed]---Appellate Tribunal upheld the decision of the Assessing Officer---Contention of company was that though the primary object and purpose of the company was to establish a cement factory, however since the Memorandum of Association of the company permitted investments to be made for the purposes of its (company's) business to generate income, therefore any income or interest earned and received through such investments should be taxed as 'income from business', as opposed to 'income from other sources'---Validity---[Per Sh. Azmat Saeed, J] Main object of the company in the present case as mentioned in its Memorandum of Association was to install, establish and run a cement manufacturing plant---One of the clauses mentioned in the Memorandum of Association provided that company's object and purpose was also "to invest or otherwise deal with the money of the company in such manner as may from time to time be determined"---However a prohibitory clause was also mentioned in the Memorandum of Association which stated that "notwithstanding anything contained in the …. object clauses of …. Memorandum of Association, nothing [t]herein shall be construed as empowering the Company to undertake or indulge in the business of banking, finance, investment, leasing or insurance, directly or indirectly or any unlawful operations"---Said prohibitory clause stated in unequivocal terms that in spite of anything contained in any of the object clauses in the Memorandum of Association, nothing therein shall continue to empower the company to undertake or indulge in the business of inter alia investment---Such was the clear and unambiguous import and meaning of said prohibitory clause---Company, in the present case, could, thus, invest its money but such a transaction could not be deemed to be business of the company---Consequently, the income derived from such investment could not qualify as income from business and therefore must fall in the category of "income from other sources" in terms of S. 30(2)(b) of the Income Tax Ordinance, 1979 [since repealed]---[Per Mushir Alam, J] During the period or course of setting up of a factory or plant by the company, activity of investing surplus funds of the company and generating any sum, return or interest on such investment, could not be considered as "income from business" under S. 15(d) of the Income Tax Ordinance, 1979 [since repealed]---Company claimed that its surplus funds were employed in a proactive manner in order to generate additional fund by way of portfolio, fund and cash management venture---Such activity was carried out during the period when cement plant/factory was under construction, therefore, the company , could not be said to be carrying on any business at that point of time within the contemplation of S.22 of the Income Tax Ordinance, 1979 [since repealed]---In such circumstances the Appellate Tribunal was right in holding that such income/interest yielded from the investment of the surplus funds of the company fell under "income from other sources" i.e. S. 15(f) of the Income Tax Ordinance, 1979 [since repealed]---Such income was rightly assessed as 'income from other sources" under S. 30(2)(b) of the Income Tax Ordinance, 1979 [since repealed]---[Per Mian Saqib Nisar, J] [Minority view] Primary and main object of the company, in the present case, was to install, establish and run a cement manufacturing plant---Such object, was, however not the only object of the company, rather there were numerous other ventures which were permissible under the objects clause of the company (mentioned in the Memorandum of Association)---Some objects clauses mentioned in the Memorandum of Association were ancillary, but some were vividly and undoubtedly independent---One such independent object clause mentioned in the Memorandum of Association was that the company was empowered to, and one of its purposes and objects was "to invest or otherwise deal with the money of the company in such manner as may from time to time be determined"---Said independent object clause made it clear that investment of the money of the company, surplus or otherwise, for the purpose of earning income, would be within the pail of permissible business activities detailed in the Memorandum of Association---Memorandum of Association of the company in the present case contained a prohibitory clause too which provided that "notwithstanding anything contained in the …. object clauses of …. Memorandum of Association, nothing [t]herein shall be construed as empowering the Company to undertake or indulge in the business of banking, finance, investment, leasing or insurance, directly or indirectly or any unlawful operations"---Said prohibitory clause did not prohibit the company from making any investment of its money and carrying on any activity having no nexus to its main object for generating income---Said prohibitory clause had been seemingly added purposely in the Memorandum of Association, as an extra precaution to eliminate any doubt that the company while misinterpreting any of its object clause might not undertake and indulge into such business which was expressly covered and fell within the prohibitory domain, thereof; but where business of the company was covered expressly by one or more than one of its lawful objects, and did not clearly and unambiguously fall within the prohibitory clause, it would be beyond the pail of the said prohibitory clause---Section 30(2)(b) of the Income Tax Ordinance, 1979 [since repealed] which dealt with 'income from other sources' was only applicable where the investment of money by a company had not been made as part of its business activities---Where money had been invested by a company in its business, as in the present case, and profit was generated on such an investment, that profit shall, for all intents and purposes, be considered to be the profit earned from business and not from other sources---In the present case, amount of profit earned by the company from the investment made in the various schemes/banks was pursuant to its business activities and, therefore, such profit could not be termed to have been accrued from any other source so as to attract the application of S. 30(2)(b) of the Income Tax Ordinance, 1979 [since repealed] i.e. income from other sources---Appeal was dismissed accordingly.

The Commissioner of Income Tax, East Pakistan, Dacca v. The Liquidator, Khulna-Bagerhat Railway Company Ltd., Ahmadabad PLD 1962 SC 128 distinguished.

Tuticorin Alkali Chemicals and Fertilizers Ltd. v. Commissioner of Income Tax 1997 Supp. (1) SCR 528 = 1998 PTD 900; Commissioner of Income Tax v. Seshasayee Paper and Board Ltd. 156 ITR 543; Commissioner of Income Tax v. liquidator Khulna-Bagerhat Railway Company Ltd. PLD 1962 SC 128; Genertech Pakistan Ltd. v. Income Tax Appellate Tribunal of Pakistan 2004 SCMR 1319; CIT, Karachi v. Gelcaps (Pvt.) Ltd. 2009 PTD 331 and UCH Power (Pvt.) Ltd. v. Income Tax Appellate Tribunal 2010 SCMR 1236 ref.

(f) Words and phrases---

----"Notwithstanding"---Meaning.

Black's Law Dictionary Ninth Edition ref.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Ghulam Shoaib Jally, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 31st March, 2015.

2015 S C M R 1520

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

LAHORE BACHAO TEHRIK---Petitioner

Versus

Dr. IQBAL MUHAMMAD CHAUHAN and others---Respondents

C.M.A. No.3221 of 2012 in S.M.C. No.25 of 2009 and Criminal Original Petition No. 96 of 2014, decided on 5th August, 2015.

(Suo Motu action regarding cutting of trees for canal widening project Lahore)

(a) Lahore Canal Heritage Park Act (XV of 2013)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Suo motu case before the Supreme Court---Traffic congestion problems and bottlenecks on the Lahore Canal Bank Road (Canal Road)---Further widening/construction activities on the Canal Road proposed by the Provincial Government---Permission granted by the Supreme Court for such construction activities for the good of the public---Permission conditional upon minimal environmental intrusion---Mediation Committee was constituted for the purposes of ascertaining the effect of widening of the Canal Road upon environment and other related issues raised by the petitioner-organization during suo motu proceedings before the Supreme Court---Keeping in view the suggestions provided by the Mediation Committee in its report, the Provincial Government was allowed to widen a part of the Canal Road in terms of the judgment of the Supreme Court reported as Suo Motu Case No. 25 of 2009 (2011 SCMR 1743)---Provincial Government, in terms of the present application, sought permission from the Supreme Court to allow further widening of the Canal Road, construction of an underpass and U-turn bridges, and addition of a third lane by utilizing part of the green belt and cutting of trees on the Canal Road---Contention of Provincial Government that the Supreme Court in the judgment of Suo Motu Case No. 25 of 2009 (2011 SCMR 1743) had tacitly allowed (further) widening of the Canal Road and construction thereon in future, if required; that by widening the Canal Road further and consequently easing traffic congestion for the benefit of the public served a public purpose---Validity---Perusal of the proposed further widening/construction activities on the Canal Road and recommendations made by the Mediation Committee, showed that the features of such further widening/construction activities were compliant with the recommendations of the Mediation Committee and directions issued by the Supreme Court in Suo Motu Case No. 25 of 2009 (2011 SCMR 1743), provided there was minimal environmental intrusion---Recommendations made by the Mediation Committee showed that it was fully conscious of the traffic problems along certain sectors of the Canal Road and envisioned works in such sectors in the future---Traffic congestion on the Canal Road was against the public good as considerable residential localities were present around the area---Canal Road had attained considerable importance and traffic congestion on it was experienced not only by the people who had to bring their children to the main city for education, rather as the main hospitals were also in the main city, ambulances also could not pass through when there was congestion---Disallowance of widening of the Canal Road would cause great trouble and inconvenience to the public at large and on account of traffic congestions said road had become hazardous for the movers/commuters, and their quality of life was being affected---Widening of the Canal Road in certain sections to ease traffic congestion and facilitate the commuters was, thus, a public good---For each tree cut as result of proposed construction activities, the Provincial Government was going to plant ten trees, therefore, the cutting of trees would in no way be a hazard to the environment---Proposed further construction activities on the Canal Road included addition of a third lane, but the same was not recommended by the Mediation Committee, which provided alternatives/options to tackle traffic congestion instead of building another lane---Information on record showed that such alternatives/options proved futile and were not sufficient for relieving traffic congestion problems---Addition of a third road lane, in such circumstances, was the only solution to the problem of traffic congestion---Provided there was minimum environmental intrusion and the area around the Canal Road was duly protected, addition of a third lane would significantly benefit the people of the city by enabling smooth flow of traffic which was the purport of the recommendations of the Mediation Committee and the judgment of Supreme Court in Suo Motu Case No. 25 of 2009 (2011 SCMR 1743)---Supreme Court directed that other than the construction/widening activities for which permission had expressly been granted by way of present judgment, the Provincial Government shall not in the future engage in any construction/widening activities along the Canal Road without first applying to the Supreme Court and seeking its permission; that all activities other than those specified in present judgment were prohibited and barred; that no activities shall be construed as being tacitly allowed by the Provincial Government which (activities) had not expressly been permitted, and that the Provincial Government may, however, carry out repair and maintenance works of the Canal Road---Application was allowed accordingly.

(b) Lahore Canal Heritage Park Act (XV of 2013)---

----Ss. 3(5), 3(8), 5, 6(2), 6(3) & 7---Constitution of Pakistan, Art. 184(3)---Suo motu case before the Supreme Court---Traffic congestion problems and bottlenecks on the Lahore Canal Bank Road (Canal Road)---Further widening/construction activities on the Canal Road proposed by the Provincial Government---Prohibition on construction or any other infrastructure development work in the Heritage Park i.e. Lahore Canal area---Scope---Contention that further widening/construction activities on the Canal Road were violative of the Lahore Canal Heritage Park Act, 2013---Validity---Section 3(5) of the Lahore Canal Heritage Park Act, 2013 provided that construction or any other infrastructure development work in the Heritage Park (Lahore Canal area) was wholly prohibited---Such prohibition, however, was not absolute and definitive, rather said prohibition was applicable only where permission from Parks and Horticulture Authority Lahore had not been sought, and such prohibition was further subject to the provisions of S. 3(8) of the Lahore Canal Heritage Park Act, 2013---Section 3(8) of the Lahore Canal Heritage Park Act, 2013 laid down the factors that had to be taken into account by Parks and Horticulture Authority Lahore before it granted permission for any construction activity in the Heritage Park (Lahore Canal area)---Sections 3(8), 6(2), 6(3) & 7(1) of the Lahore Canal Heritage Park Act, 2013, when read together, mandated that permission may only be granted under S. 3(8) after Environmental Impact Assessment and requisite approval from Provincial Environmental Protection Agency, and once Advisory Committee constituted under S. 5 had been consulted---In the present case, the Environmental Impact Assessment of the proposed further widening/construction activities on the Canal Road was conducted and the Provincial Environmental Protection Agency accorded its approval---Consequent to such approval, the matter was raised before the Advisory Committee which too approved the proposed construction activities in principle---After seeking approval of the Provincial Environmental Protection Agency and the Advisory Committee, the matter was put before and approved by the Board of Directors of Parks and Horticulture Authority Lahore---Proposed further widening/ construction activities on the Canal Road, in such circumstances, could not be said to infringe upon the protections accorded to the Heritage Park vide the Lahore Canal Heritage Park Act, 2013---Supreme Court granted permission to the Provincial Government for the proposed further widening/construction activities on the Canal Road subject to minimum environmental intrusion---Application was allowed accordingly.

(c) Doctrine---

----Public trust, doctrine of---Scope---Public trust resource could not be converted into private use or any other use other than a public purpose.

(d) Lahore Canal Heritage Park Act (XV of 2013)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Social action litigation---Judgment delivered by the Supreme Court in social action litigation under Art. 184(3) of the Constitution---Jurisdiction of the Supreme Court to pass further appropriate orders (after such judgment had been delivered)---Scope---Traffic congestion problems and bottlenecks on the Lahore Canal Bank Road (Canal Road)---Further widening/construction activities on the Canal Road proposed by the Provincial Government---Mediation Committee was constituted for the purposes of ascertaining the effect of widening of the Canal Road upon environment and other related issues---Keeping in view the suggestions provided by the Mediation Committee in its report, the Supreme Court in exercise of its powers under Art. 184(3) of the Constitution delivered a consent judgment [Suo Motu Case No. 25 of 2009 (2011 SCMR 1743)] and allowed the Provincial Government to limitedly widen the Canal Road subject to certain conditions---After the Canal Road had been limitedly widened, the Provincial Government, in terms of the present application, sought permission from the Supreme Court for further widening of the Canal Road, construction of an underpass and U-turn bridges, and addition of a third lane by utilizing part of the green belt and cutting of trees on the Canal Road---Contention that initial widening of the Canal Road was done on the basis of the consent judgment of the Supreme Court delivered in its jurisdiction under Art. 184(3) of the Constitution [Suo Motu Case No. 25 of 2009 (2011 SCMR 1743)]; that said consent judgment had attained finality, and the Provincial Government was now estopped from seeking permission of the Supreme Court for carrying out further proposed widening/ construction work on the Canal Road---Validity---Present proceedings were not adversarial litigation between the parties, rather it had genesis in a social action litigation and the Supreme Court in exercise of its powers under Art.184(3) of the Constitution accepted the report of the Mediation Committee and made it part of its judgment with the consent of the parties --- However, such consent or judgment did not in any way denude the Supreme Court of its jurisdiction in social action litigation to subsequently pass appropriate orders where it became imperative and expedient and where information had been provided to the Court which necessitated appropriate orders---Limited widening of the Canal Road was completed by the Provincial Government in terms of the judgment of the Supreme Court in Suo Motu Case No. 25 of 2009 (2011 SCMR 1743), however due to such limited widening of the road, further complications had emerged (now) and in order to cater for those, the Supreme Court, leaving apart the consent, did have ample and absolute power and jurisdiction to permit further widening of the road for appropriate and justified reasons---Supreme Court granted permission to the Provincial Government for the proposed further widening/construction activities on the Canal Road subject to minimum environmental intrusion---Application was allowed accordingly.

(e) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Rules of acquiescence, waiver, estoppel, and past and closed transaction---Applicability of---Such rules or any other rule having nexus to such concepts would not at all be relevant when the Supreme Court was exercising jurisdiction under Art. 184(3) of the Constitution.

(f) Constitution of Pakistan---

----Arts. 184(3) & 188---Public interest litigation---Order/decision delivered by the Supreme Court in public interest litigation---Revisiting of such order/decision by the Supreme Court---Scope---In public interest litigation, upon being provided with requisite information, the Supreme Court had the inherent power to re-visit its orders/decisions---In such a case, the rigors of review jurisdiction shall stricto sensu not be attracted.

Aitzaz Ahsan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in Crl. O. P. 96 of 2014).

Kh. Haris Ahmed, Senior Advocate Supreme Court, Israr Saeed, Chief Engineer, M. Rashid, Director (Legal) and Raza Hassan Rana, Assistant Director for L.D.A.

Ms. Imrana Tiwana for Lahore Bachao Tehrik.

Ch. Munir Sadiq, Advocate Supreme Court for Appellants (in C.M.A. 615 of 2015).

Nawaz Manik, Director (Law) for Environmental Department.

Date of hearing: 14th May, 2015.

2015 S C M R 1545

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Anwar Zaheer Jamali and Maqbool Baqar, JJ

PIA CORPORATION---Appellant

Versus

Syed SULEMAN ALAM RIZVI and others---Respondents

Civil Appeal No. 213-K of 2010, decided on 1st April, 2015.

(On appeal from the judgment of the High Court of Sindh at Karachi dated 13-5-2010 in C.P. No. D-1927 of 2006)

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---Maintainability---Employees of a Corporation with non-statutory service rules---Constitutional petition was not maintainable in the matters pertaining to the terms and conditions of service of employees of a Corporation, where such terms and conditions were not governed by statutory rules.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court by retired employees of Pakistan International Airlines Corporation ("Corporation") relating to increments and encashment of leaves (PL/LPR)---Maintainability---Terms and conditions of service governed by non-statutory rules---Master and servant relationship---Terms and conditions of the employees of the Pakistan International Airlines Corporation ("Corporation") were not governed by any statutory rules---Relationship between the Corporation and its employees was that of a "master and servant"---Constitutional petition by employees of the Corporation before the High Court was thus not maintainable---Appeal was allowed accordingly.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 distinguished.

Khalid Javed, Advocate Supreme Court and Mrs. Shiraz Iqbal Choudhry, Advocate-on-Record for Appellant.

A.S.K. Ghori, Advocate-on-Record/Advocate Supreme Court for Respondents Nos.1 - 19, 21, 22 and 24.

Nemo for Respondents Nos.25 and 26.

Ex parte for Respondents Nos. 20 and 23.

Date of hearing: 1st April, 2015.

2015 S C M R 1549

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, J

MUHAMMAD ANAYAT GONDAL---Appellant

versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Civil Misc. Appeal No.19 of 2015 in Constitutional Petition No.Nil of 2015, decided on 6th May, 2015.

Constitution of Pakistan---

----Art. 184(3)---Supreme Court Rules, 1980, O. III, R. 10(a)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution---Office objection overruling of---Matter concerning Ad-hoc Relief allowance for entire Provincial District Judiciary---Judicial officer/petitioner filed constitutional petition before the Supreme Court with the grievance that Provincial Government was not giving 50% Ad hoc Relief allowance to the members of the District Judiciary in the Province as well as the staff attached to the same, whereas said allowance had been allowed to the other members of the civil service of the Provincial Government---Office objection on the said petition to the effect that the grievance of the petitioner was an individual grievance and did not pertain to the entire Provincial District Judiciary---Validity---Petitioner was a judicial officer serving in a Province---Grievance raised by the petitioner was not his individual grievance but of the entire Provincial District Judiciary---Office objection was consequently overruled by the Supreme Court with the direction to let the present petition come up for hearing in the Supreme Court in due course---Order accordingly.

Appellant in person.

Date of hearing: 6th May, 2015.

2015 S C M R 1550

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Gulzar Ahmad and Maqbool Baqar, JJ

Messrs MFMY INDUSTRIES LTD. and others---Appellants

versus

FEDERATION OF PAKISTAN through Ministry of Commerce and others---Respondents

Civil Appeals Nos. 1646 and 2000 of 2006 and Civil Petition No.782-K of 2009, decided on 21st April, 2015.

(Against the judgment dated 18-2-2009, 10-8-2006 of the High Court of Sindh, Karachi passed in C.P. No.D-2659 of 1994, C.P. No.34-D of 1995).

(a) Constitution of Pakistan---

----Preamble---State, organs of---Legislature, Executive and Judicature---Objects and functions---Importance of judiciary in a State explained.

State constituted three foundational organs i.e. Legislature, Executive and Judicature. In ordinary parlance, these (organs) were also known to be the three pillars of the State. Entire structure of the State was founded, built upon, and secured only on account of the said pillars. Due to lack/absence or imbalance in respect of any of these organs/pillars, the very concept of State was periled and its existence was put at risk.

Main objects and functions of the legislative branch of the State was to make laws, which (laws) obviously defined and prescribed the rights and obligations of the citizens/persons and the duties of the State; these laws ordained the functions which the State could and had to perform vide various organs. Legislative limb also enabled a broader mechanism for State governance by drawing policies and issuing and passing resolutions on numerous important aspects expedient for the effective functioning of the State. Legislature may also provide for machinery through which laws and directives etc. were or should be implemented and enforced. Legislature formulated and constituted the positive law of the State.

Object of executive was not only to carry out and run the affairs of the State in accordance with the laws made by the legislature and any policy/direction given to it, but also to comply with laws, follow the established rules, norms and standards expedient and necessary for the due administration of the State. Thus, executive was responsible for the governance of the State and for carrying out its affairs in consonance with the rule of law.

According to the constitutional set up of Pakistan, executive primarily emanated out of the legislative branch of the State i.e. out of the chosen representatives of the people, therefore, there remained no strict separation of power between the legislature and the executive. Rather practically there was considerable harmony and also collaboration between these two branches of the State. These branches at times supported and bolstered each other and while they did so, the possibility that either of the two branches exceeded its jurisdiction and empowerment or misused the same could not be ruled out.

Where the legislature or the executive branch had erred in the exercise of its jurisdiction and was responsible for any abuse, excessive use of power, arbitrary exercise of power, whimsical, non-transparent, unfair and unreasonable action(s) including the violation of fundamental rights, an affected person for the purposes of seeking redressal of his grievance against such wrong and/or for enforcing his rights under the law, including his fundamental rights as enshrined in the Constitution, came forth to the judicature by knocking at its door. This was the last resort for a beleaguered and aggrieved person. It is thus that the judicature was conceived, perceived and was meant to act as the final arbiter not only vis-a-vis the interpretation of the Constitution, the statutory law(s), but also to ensure that rule of law was adhered to and the rights of the citizens/persons approaching the courts were determined and enforced against the might of the State. Courts were the guardians of the Constitution and were responsible for preserving and securing the rights of the aggrieved citizens/persons as against the State.

Asma Jillani's case PLD 1972 SC 139 at 182 ref.

Adherence to and enforcement of the rule of law could only be achieved through an independent and capable judiciary, which was beyond the reach, control and influence of other branches of the State---Judicature had to act as a neutral umpire who kept a check on the exercise of power by other organs of the State so as to ensure that the rights of citizens/persons were not affected and trampled contrarily to law.

(b) Administration of justice---

----Proper functioning of judiciary in a State---Scope and significance--Judiciary which lacked courage to do justice without fear and favour, was biased, or suffered from the vice of self-interest, or was tardy, indolent and incompetent and had no urge, will, passion and ability to decide the cases/disputes before it expeditiously, or fell in the romance of aggrandizement and populism was a danger to the State and the society---Great virtue of a judicial functionary was that he applied the rules of balancing and proportionality while performing his functions and discharging his duties.

(c) Administration of justice---

----Proper judicial dispensation---Duty of judge to decide a case expeditiously---Scope---Inordinate delay in pronouncement of judgment after hearing of the matter---Effect---Rule of audi alteram partem, violation of---Judge had the duty to decide the cases expeditiously, because it was a known jurisprudential concept that "justice delayed is justice denied"---Courts must, thus, exercise all the authority conferred upon them to prevent any delays which were being caused at any level by any person whosoever---Procedural and legal aspects of any litigation were equally important, which must be followed in letter and spirit, however, barring such time that was consumed for adherence with such legal and procedural aspects, the courts were bound to decide the matter as promptly as possible especially once the trial and the hearing of the case(s) were complete, and in appeals, revisions and constitutional matters, once the hearing of the matter (when arguments were concluded) had taken place and it had been concluded---Where there was an inordinate delay in pronouncement of judgment after hearing of the matter, especially on account of lapse of considerable and reasonable time (such as six months and beyond), the judges shall not be in a position to exactly recall and record with precision and exactitude as to what propositions of law and facts were argued before them---Such delay shall have reflection upon the rule of audi alteram partem, which was a fundamental and salutary rule of justice and postulated that if someone had been denied appropriate opportunity of hearing in a case, any verdict/decision given against such person/party shall not be laudable---Any judgment rendered with inordinate delay after hearing of the matter may be questioned as not being meaningful, purposive and rather illusionary---Such a verdict shall neither fit in the concept, object and purpose of a judgment nor shall it meet the rule of proper dispensation of justice.

Muhammad Ovais and another v. Federation of Pakistan through Ministry of Works and Housing Pakistan, Islamabad and others 2007 SCMR 1587; Syed Iftikhar-ud-Din Haidar Gardezi and 9 others v. Central Bank of India Ltd. Lahore and 2 others 1996 SCMR 669; Muhammad Latif v. Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 9 others 2003 CLC 1064; Walayat Hussain v. Muhammad Hanif 1989 MLD 1012 and R.C. Sharma v. Union of India and others AIR 1976 SC 2037 ref.

(d) Words and phrases---

----"Judgment"---Definition.

(e) Judgment---

----"Judgment"---Scope---Judgment should supply adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the judge and it should not be a mechanical and non-speaking judgment.

(f) Judgment---

----Judgment in terms of law, importance of---Scope---Where a judge/court did not pronounce a judgment for resolving the legal and factual issues involved in a dispute before it at all, the very purpose of the judicial branch of the State would be frustrated and eroded---Where there was no judgment in terms of law, the entire judicial set up shall be rendered farce and illusionary, which obviously shall in turn disturb the equilibrium between the pillars of the State upon which it rested, resulting into serious impairment of the functioning of the State.

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

----O. XX, R. 1(2)---Judgment of Trial Court after hearing of a matter---Time period for pronouncement of judgment---Scope---Delayed pronouncement of judgment by judge of Trial Court---Effect---As per O.XX, R. 1(2), C.P.C, a judgment had to be given by the Trial Court within the prescribed period of 30 days, after the hearing of the case had been concluded---With the commencement of the trial in a civil lis, the hearing of the case also started, and with the conclusion of the trial, the hearing also concluded---Conclusion of the trial or the hearing meant that the parties had concluded and completed their evidence---No specific provision existed in the Civil Procedure Code, 1908, which conferred the right upon the parties to make oral arguments before the Trial Court, but per convention, the oral submissions of the parties were also heard, which exercise however, must be concluded within 30 days' time from the conclusion of the trial, as prescribed by law---If the parties, despite the opportunity granted by the court to make oral submissions, did not avail the same, the court was not bound to wait indefinitely for them and keep on adjourning the matter---Such practice was highly deprecated and should be discouraged, rather the Court should pronounce the judgment without their (oral) arguments and such judgment shall not be in violation of the rule of hearing---Expression "not exceeding thirty days" used in O. XX, R. 1(2), C.P.C, made it mandatory for the Trial Court to render its judgment within the prescribed time period---If the same was not done, without a sufficient cause i.e. a cause beyond the control of the judge, the judgment was impaired in value if not invalid and disciplinary action could be taken against a judge who was found habitual in delaying his judgments beyond such period, obviously following proper legal steps for such action and in any case at least such vice of the judge must adversely reflect in his Annual Confidential Reports (ACRs).

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

----O. XLI, R. 30 & O. XLVII & Ss. 114 & 115---Constitution of Pakistan, Art. 212--- Judgment of Appellate Court/Revisional Court/Review Court/Special Court/Tribunal after hearing of a matter---Time period for pronouncement of judgment---"Reasonableness of time" in pronouncing judgment---Scope---Order XLI, R.30, C.P.C provided that the Appellate Court after hearing (oral arguments of) the parties or their pleaders, as the case may be, shall pronounce the judgment at once or on some future day---Such "future day" by no stretch of legal interpretation or on the settled rules and norms of justice could be construed to mean an indefinite period--- Rather the rule of reasonableness of time required for the performance of a judicial act in the normal and ordinary course necessary for doing justice should be attracted and pressed into service and read into it--- If the first appeal against the decree or order (subject to the pecuniary jurisdiction) was being heard by the District Judge (Additional District Judges included), and it was only the oral summations which were being addressed by the parties/pleaders and heard by the court and no fresh evidence was being recorded (subject to additional evidence as discussed in O.XLI, R.27, C.P.C.), and as long exercise of a trial was now over; the record was complete; the matter was ripe in all respects for a decision, and the judge was only required to render the judgment after hearing the summations, he had to do the same within reasonable time---Such reasonable time, should not be more than 45 days---Time period of 45 days was most reasonable and quite sufficient for the Appellate Court (District Judges) to compose the judgment---Adherence to such time, should equally apply to the judgments in relation to the revisional as well as review jurisdiction of these court(s) or where the court(s) was exercising any other special jurisdiction in cases of civil nature before it---If the judgments were not announced within such reasonable time, the judgment was impaired in value if not invalid and disciplinary action could be taken against a judge who was found habitual in delaying his judgments beyond such period, obviously following proper legal steps for such action and in any case at least such vice of the judge must adversely reflect in his Annual Confidential Reports (ACRs)---Any judgment rendered (beyond the time period of 45 days) may be questioned as not being meaningful, purposive and rather illusionary---Such a verdict shall neither fit in the concept, object and purpose of a judgment nor shall it meet the rule of proper dispensation of justice---Rule of reasonableness of time for pronouncing judgment (i.e. time period of not more than 45 days) should also extend to all the special courts (forums), tribunals either constituted under the Federal or the Provincial laws which were presided over by serving or retired judges of the subordinate judiciary and even to those forums which were presided over by the ex-judges of the High Courts (however if some time had been fixed by the law for the disposal of any matter before the special forum, such law should take precedence over the rule of reasonableness of time laid down in the present judgment)---Supreme Court directed that to curb the menace of adjourning cases for arguments on indefinite occasions, the judges of the District Judiciary and the Special Courts and forums throughout the country while pronouncing their judgments should record a note at the end/bottom thereof, as to how many times the case was listed for hearing of the arguments and was adjourned so that the High Courts which had supervisory authority over the said Judiciary must stay abreast about the performance of the judges; the causes for the delay and should take measures and the steps to rectify the causes and the reasons in such behalf---Order accordingly.

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

----Ss. 96, 100 & 115---Constitution of Pakistan, Arts. 199 & 201---First and/or second appeal heard by the High Court---Cases heard by the High Court in its revisional and constitutional jurisdiction---Judgment, pronouncement of---Reasonable time period for pronouncement of judgment---Scope---As first appeals against decrees and most constitutional cases and Intra Court Appeals were heard by a Division Bench(es) of the High Courts, therefore, to enable the two Judges to deliberate, confabulate and compose the judgment(s), or record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days---For proper enunciation of law, considerable research, brooding and pondering may be required, therefore, 90 days' time should be good and adequate for the composition of the judgments by the High Court(s) in first appeal against order or second appeals, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of the High Court(s) [subject to the principle that if the law had fixed a time for the conclusion of the proceedings and pronouncement of judgment under any special law, such special law had to take precedence over the 90 days' time period)---If the judges (of the High Court) were not able to compose and deliver the judgments within the above (reasonable) time, then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing---However, because of the high status of the Judges of the High Courts, it was not expected that the Judges should fix the matters for rehearing in routine just to cover up the lapse in composing the judgment within 90 days, rather it was expected that they would do the same for genuine reasons, reflected in the order of rehearing as to why the judgment could not be written and pronounced---However, pronouncement of judgment by the High Court after a lapse of time period of 90 days, if the matter for any reason was not put for any rehearing, per se shall not be invalid, though it may be frowned upon, but again it did not mean that the High Court had indefinite time to pronounce the judgment after hearing of the matter---Maximum time within which the judgment should come (i.e. pronounced) was 120 days, otherwise the judgment shall stand weakened in quality and efficiency, if not invalid altogether, and therefore when challenged before the Supreme Court, the Court shall decide whether it should sustain or be set aside on the simple and short ground of inordinate delay---Any judgment rendered (beyond the maximum time period mentioned in the present case) may be questioned as not being meaningful, purposive and rather illusionary---Such a verdict shall neither fit in the concept, object and purpose of a judgment nor shall it meet the rule of proper dispensation of justice---Supreme Court observed that if any matter came up before the Supreme Court in which a judgment of the High Court was attacked as travelling beyond the period of six months, then despite it being weakened in quality etc., it shall not be invalid altogether, and it shall be open to the Supreme Court to examine if for some reason an exception could be taken, and if so, such judgment may be upheld.

(j) Constitution of Pakistan---

----Art. 189---Judgment rendered by the Supreme Court after hearing of a matter---Reasonable time period for pronouncing judgment---Scope---Cases/matters before the Supreme Court were heard in benches---Usual cases were heard by a three members' bench, though two members' benches also heard matters---Reasonable time period of 90 days for the pronouncement of judgments should ordinarily extend to those (cases) heard by two member benches of Supreme Court and if the matter was not decided within such time, the case should be fixed for rehearing---For cases that were heard by a larger Bench particularly a Bench of three and above, the rule of 90 days should not be attracted because the Supreme Court, being the apex Court of the country had to enunciate law on very important legal and constitutional propositions, which law was binding on all the courts and other organs of the State---For laying down the law, a lot of effort, research, deliberations and confabulations were required---Supreme Court was the final court of the country which was saddled with the duty of laying down the correct law therefore more responsibility was cast on the Court and utmost care was required to pursue the law which was free from any flaw(s)---Supreme Court settled the jurisprudence of the country and the development and true interpretation of law---Judgments of Supreme Court, thus, were sometimes shelved for a while after being drafted, for further thinking, rethinking about its implication, the effect and impact on the State, society, culture, pending cases and the system of governance, the rights of the citizens etc.---Numbers of drafts were therefore prepared for discussion and input, different opinions were recorded in the same judgment on different points of law by the Judges of the Bench, and there were dissents recorded---Supreme Court observed that it was, thus, left to the Judge(s) of Supreme Court to decide for themselves as to what minimum time frame shall be needed for composing and pronouncing the judgment as the judges of the superior courts could not be said to be unaware or unmindful about their responsibility of providing speedy justice and the expediency of dispensation of the justice---Order accordingly.

(k) Administration of justice---

----"Hearing of a case"---Meaning and scope---Hearing (of a case) meant a meaningful, purposeful and effective hearing which enabled a judge to understand the legal and factual proposition involved in the matter as opposed to an illusionary and cursory hearing conducted barely as a formality and to bring on record mere compliance of the rule of hearing---Where effective hearing was not provided, it shall tantamount to non-hearing of the party concerned and the legal consequences of non-hearing of parties shall follow.

Tariq Javed, Advocate Supreme Court for Appellants (in C.A. No.1646 of 2006).

Abdul Ghaffar Khan, Advocate Supreme Court for Appellants (in C.A. No.2000 of 2006).

M. Bilal, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for FBR.

Imran Mehmood, MCB, Departmental Representative.

Sohail Mahmood, D.A.G. for Federation.

Date of hearing: 21st April, 2015.

2015 S C M R 1570

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan and Iqbal Hemeedur Rahman, JJ

MUHAMMAD ADNAN alias DANA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 433 of 2015, decided on 19th August, 2015.

(Against the order dated 6-4-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.1 of 2015 in Criminal Appeal No.645 of 2015)

Supreme Court Rules, 1980---

----O. XXIII, R. 8, proviso---Constitution of Pakistan, Art. 185(2)---Petition for leave to appeal---Criminal proceedings---Stay of execution of order of Trial Court for imprisonment pending disposal of a petition for leave to appeal before the Supreme Court---Bar under proviso to O.XXIII, R.8 of the Supreme Court Rules, 1980, that "unless surrender was first made to an order of imprisonment, petition for leave to appeal shall not be entertained"---Scope---Petitioner, in the present case, was convicted and sentenced by Trial Court, and at time of announcement of judgment by Trial Court, petitioner slipped away and non-bailable warrants of arrest had been issued against him---Petitioner thereafter filed appeal against conviction and sentence before the High Court and vide miscellaneous application sought suspension of sentence; which application was dismissed by High Court---Question before the Supreme Court was "whether the petition for leave to appeal against impugned order of High Court could be entertained in view of the bar contained in proviso to O.XXIII, R.8 of the Supreme Court Rules, 1980"---Contention of petitioner was that after recording of his conviction and sentence by the Trial Court, he had surrendered before the High Court at the time of hearing of his application seeking suspension of sentence; hence his petition for leave to appeal should be entertained---Held, that per O.XXIII, R.8 of the Supreme Court Rules, 1980; surrender to an order of imprisonment was a condition precedent for entertainment of petition for leave to appeal and it was only after a valid and proper entertainment of such petition that the relief regarding stay of execution of the order for imprisonment or fine could be granted---Requirement of surrender to an order of imprisonment pertained only to criminal petitions involving an order of imprisonment; for example, cases where a conviction had been recorded or upheld and an express order has been passed that the petitioner may be taken into custody or cases where bail of the petitioner has been disallowed or cancelled and an order had been passed that he may be taken into custody and the same did not apply to criminal petitions seeking bail before arrest in a criminal case where no order of imprisonment had so far been passed---Trial Court, in the present case, had convicted and sentenced the petitioner and had simultaneously passed an order that the petitioner, who was on bail till then, was to be arrested and lodged in jail to serve his sentence of imprisonment---When the petitioner slipped away from the Trial Court, the Court had also issued perpetual non-bailable warrants for his arrest---Two orders of imprisonment already stood outstanding against the petitioner and admittedly he had not surrendered to the said orders of imprisonment so far---Surrender to an order of imprisonment was not the same thing as surrendering before a higher court without actually being imprisoned in compliance of a judicial order passed in such regard---Present petition for leave to appeal filed by the petitioner could not be entertained till he surrendered to his orders of imprisonment, as made explicit by the first proviso to R.8 of O.XXIII of the Supreme Court Rules, 1980---Petition for leave to appeal, being not maintainable, was dismissed, in circumstances.

Mazhar Ahmed v. The State and another 2012 SCMR 997 and Musharaf Khan v. The State 1985 SCMR 900 distinguished.

Tariq Mehmood Butt, Advocate Supreme Court with Petitioner in person.

Nemo for Respondents.

Date of hearing: 19th August, 2015.

2015 S C M R 1575

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Umar Ata Bandial, JJ

RAFIQ HAJI USMAN---Petitioner

Versus

CHAIRMAN, NAB and another---Respondents

Civil Petition No.825 of 2015, decided on 26th June, 2015.

(Against the order dated 2-3-2015 of the High Court of Sindh, Karachi passed in C.P. No.73 of 2015)

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

----S. 9(a)(x) & (b)---Criminal Procedure Code (V of 1898), S. 497---Penal Code (XLV of 1860), S. 405---Criminal breach of trust---Bail, grant of---Contractual liability---Accused was alleged to have entered into agreements with members of public at large for construction of commercial and residential plaza and received money from them but neither handed over the possession nor returned money---Validity---Consequences of violation of such agreement were prescribed through civil remedies available to aggrieved party; such as to seek specific enforcement of agreement, if the same was capable of enforcement or to ask for damages---In any case relationship inter se parties carried implications of civil dispute giving rise to rights and obligations of civil nature---Where element of fraud, deceit etc. or a specific provision of any law which constituted a criminal offence was not attracted and made out and there also was no material available on record in such context, the exercise of discretion for granting bail by court in appropriate case should not be withheld as a punishment--- Money was not entrusted to accused or the firm for the purposes of return at a later time in the nature of Amanat, rather the money was at the best given by purchasers/ allottees for the purpose of using such money for construction of property/building and the money was used in construction of building---Case against accused was of civil nature and required further inquiry and did not fall strictly within the purview of the provisions of law---Bail was allowed.

Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Shahid Imran v. The State and another 2011 SCMR 1614 ref.

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

----S. 9(b)--- Bail--- Civil/criminal dispute--- Determination--- Court has to see as to what is the predominate factor, criminal or civil.

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

----S. 18(g)--- Corruption and corrupt practice--- Contractual obligation---Provisions of National Accountability Ordinance, 1999, are neither meant nor attracted/applicable for the purposes of settling scores of civil nature or disputes emanating out of contract between few individuals and delinquents (who allegedly violated the contract) having no criminal intent and motive behind it---Person aggrieved of contractual breach of civil contract, must resort to civil remedies subject to certain conditions.

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

----S. 9(a)(x)---Penal Code (XLV of 1860), S. 405---Criminal breach of trust---Sale agreement---Scope---Essential element for making out and establishing a case of criminal breach of trust is entrustment of property or money or with any dominion over property, which is dishonestly misappropriated or dishonestly used or disposed in violation of any direction prescribed by law or the mode in which such trust was to be discharged or in the context any contract etc.---Promise to sell property for which consideration / money is paid or an agreement to sell entered upon and the money has been paid pursuant to such an agreement, it is not the same as entrustment of property within the concept of S. 9(a)(x) of National Accountability Ordinance, 1999, or S.405, P.P.C.---In case of entrustment, money/property received is to be retained for return to the giver at a later time as opposed to a promise or contract where investment is made or money is paid for the purpose of fulfilment of a specific agreed upon purpose/contract---Where money/property, in such a case, has been entrusted to a person, using such amount/property for any other purpose would not attract the penal consequences of S. 405, P.P.C.

Shahid Imran v. The State and another 2011 SCMR 1614 rel.

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

----S. 9(a)(ix) & (x)--- Term 'members of public at large'---Applicability---Number of thirteen persons does not constitute 'public' in its literal and ordinary sense---Meaning of word 'large' (i.e. considerable or relatively great size, extent or capacity having wide range and scope) does not bring twenty two or thirteen persons as the case may be, within its concept and fold.

(f) Interpretation of statutes---

----Provisions of law which constitute criminal offences have to be strictly construed and applied.

Kh. Haris Ahmed, Advocate Supreme Court for Petitioner.

Mahmood Raza, DPG NAB for Respondents.

Date of hearing: 26th June, 2015.

2015 S C M R 1585

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

Lt.-Col. (Rtd.) GHAZANFAR ABBAS SHAH---Appellant

versus

Mehr KHALID MEHMOOD SARGANA and others---Respondents

Civil Appeal No.710 of 2014, decided on 27th May, 2015.

(Against the judgment dated 18-3-2014 of the Election Tribunal, Faisalabad passed in Election Petition No.75 of 2013).

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

----S. 55(3)---Civil Procedure Code (V of 1908), O.VI, R. 15---Election petition, verification of---Mandatory requirement---Verification of an election petition was mandatory and a petition which lacked proper verification shall be summarily dismissed by the Election Tribunal, even if the respondent had not asked for or prayed for its dismissal---Where the election petition had not been verified in accordance with law, the same could not be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, could not permit the election petitioner to cure the same.

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 and Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 ref.

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

----S. 55(3)---Civil Procedure Code (V of 1908), O.VI, R. 15---Election petition, verification of---Omission on part of Oath Commissioner in certifying administration of Oath and giving date and place of administration of Oath--- Effect--- Election Tribunal dismissed election petition filed by appellant for non-verification on the basis that it contained a verification clause signed by the deponent but the Oath Commissioner had merely put an attestation stamp, without certifying administration of Oath and giving the date and place of administration of Oath---Validity---In order to meet the real object and the spirit of the election laws which required verification on oath, the Oath Commissioner at the time of verification of the petition must record and endorse verification/attestation that the oath had been actually, physically and duly administered to the election petitioner/deponent---Where the election petition was sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath was made, otherwise the election petition shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed---In the present case, no date or place was mentioned in the verification i.e. at what date and place the verification was made by the appellant---Stamps of the Oath Commissioner, affixed at the bottom of the verification also did not postulate the date on which the verification was made by the appellant/election petitioner---Besides, it was not reflected from the verification whether the appellant was present at the time of verification before the Oath Commissioner because he had not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars were not even mentioned on the said verification---On account of such deficiencies, verification of the election petition was not valid in terms of S. 55(3) of the Representation of the People Act, 1976---Election petition had been rightly dismissed by the Election Tribunal in such circumstances--- Appeal was dismissed accordingly.

(c) High Court (Lahore) Rules and Orders---

----Vol. IV, Chap. 12, Rr. 11, 12, 14, 15 & 16---Affidavit---Pre-requisites of a valid affidavit listed.

In terms of the High Court (Lahore) Rules and Orders, an affidavit has to meet the following requisites:--

(1) Identification of deponent (Rule 11)

(2) Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)

(3) Time and place of the making of the affidavit to be specified (Rule 11)

(4) Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12)

(5) Date, Signature and name of office and designation of the Court/ Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12)

(6) Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12)

(7) Where deponent of an affidavit does not understand the contents of an affidavit, the Court/Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/ Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14)

(8) Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15)

(9) Oath to be administered by the Court/Magistrate/Other officer in accordance with the Indian Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16).

Bashir Ahmed v. Abdul Wahid PLD 1995 Lah. 98 ref.

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

----S. 55(3)---High Court (Lahore) Rules and Orders, Vol.IV, Chap.12, Rr.11, 12, 14, 15 & 16---Election petition, verification of---Election petition verified through an affidavit--- Affidavit neither identifying the deponent properly nor containing the date and place of verification---Effect---Election petition filed by the appellant was verified through an affidavit annexed to the petition---Election Tribunal dismissed the election petition on the basis that on the affidavit no date of administration of Oath was either provided or described by the Oath Commissioner---Validity---In order to meet the real object and the spirit of the election laws which required verification on oath, the Oath Commissioner at the time of verification of the affidavit, must record and endorse verification/attestation that the oath had been actually, physically and duly administered to the election petitioner/deponent--- Where the affidavit was sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath was made, otherwise the affidavit shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed---Essential pre-requisites were missing from the affidavit in question---Date and place of verification had not been specified---No date had been mentioned on the stamp(s) of attestation fixed by the Oath Commissioner---Affidavit did not show as to whether the appellant was administered oath by the Oath Commissioner before the attestation was made, and whether the appellant was duly identified before the Oath Commissioner---Affidavit also did not show that the appellant was identified with reference to his ID card which was the ordinary, usual and general course for identification of a person or even by an Advocate---No ID card number was given, and the identification of the appellant did not seem to have been made, and the particulars of the identifier were also conspicuously missing---Such affidavit, therefore, could hardly be considered to be verification of the election petition in terms of the law--- Election petition had been rightly dismissed by the Election Tribunal in such circumstances---Appeal was dismissed accordingly.

Sheikh Ahsan-ud-Din, Advocate Supreme Court for Appellant.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Respondent No.1.

Date of hearing: 27th May, 2015.

2015 S C M R 1691

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

ZAFEER GUL---Appellant

versus

Dr. RIAZ ALI and others---Respondents

Civil Appeals Nos. 1194 to 1197 of 2014, decided on 25th May, 2015.

(On appeal from judgment of Peshawar High Court, Peshawar dated 21-7-2014 passed in R.F.As. Nos. 6-P, 16-P/2014 and C.Rs.105-P and 106-P/2014)

(a) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 18---Suits Valuation Act (VII of 1887), Preamble---Partition Act (IV of 1893), S.4---Suit for partition---Valuation of suit property---Appeal against order of civil judge---Pecuniary jurisdiction of the Appellate Court---Scope---Suit for partition in respect of disputed property, instituted before the Trial Court was valued at Rs.230 for purpose of jurisdiction and Rs.15 for the purpose of court fee, therefore in terms of S.18 of the West Pakistan Civil Courts Ordinance, 1962, such valuation disclosed in the plaint was to be considered the value of the suit property for determining the forum of appeal qua pecuniary jurisdiction of the Appellate Court.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 18---Suits Valuation Act (VII of 1887), Preamble---Partition Act (IV of 1893), S.4---Suit for partition and separate possession---Co-sharer in property---Appeal against order of civil judge---Pecuniary jurisdiction of the Appellate Court---Scope---Valuation of suit for purposes of determining jurisdiction of court---Every co-sharer in immovable property was legally deemed to be in its possession to the extent of his undivided share therefore, in a suit for partition and separate possession, law permitted the co-sharer tentative valuation of his share in the immovable property as specified in the plaint for the purpose of pecuniary jurisdiction, which was subject to final determination by the court---Till final determination by the court, the valuation shown in the plaint was to be deemed as proper value of the suit property for the purpose of availing the remedy of appeal qua determining the forum of appeal.

Ajiruddin Moudal and another v. Rahman Fakir and others PLD 1961 SC 349 ref.

Appellant (in person) in all appeals.

Qazi Jawwad Ehsanullah, Advocate Supreme Court for Respondents Nos. 1, 3-7 (in C.As. Nos.1194-1195 of 2014).

Qazi Jawwad Ehsanullah, Advocate Supreme Court for Respondents Nos. 3-6 (in C.As. Nos.1196-1197 of 2014).

Date of hearing: 11th May, 2015.

2015 S C M R 1694

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

HABIB BANK LIMITED---Petitioner

versus

WRSM Trading Company L.L.C. and others---Respondents

Civil Petition No.666 of 2015, decided on 4th June, 2015.

(Against the judgment dated 10-3-2015 of the Lahore High Court, Lahore passed in R.F.A. No.395 of 2005)

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

----S. 9---Contract Act (IX of 1872), S. 23---Civil Procedure Code (V of 1908), S. 20---Constitution of Pakistan, Art. 185(3)---Banking Court, territorial jurisdiction---Determination---Finance facility was extended in a foreign country---Contention of the borrower was that financial institution was registered in Pakistan but carried on its business abroad and also made financial transactions there, therefore, provisions of S.9, Financial Institutions (Recovery of Finances) Ordinance, 2001 were attracted and said provisions were not to be restricted to financial transactions conducted in Pakistan but would have extra-territorial limits as well---Borrower further raised the plea that financial transaction inter se parties was based upon interest and therefore, was void in terms of S.23 of Contract Act, 1872, and on account of the same such money due in transaction was not recoverable, as the same was based upon misconception of law---Plea was also raised that view set out by High Court that S.20, C.P.C. was procedural in nature, therefore, would not be relevant for the purposes of conferring jurisdiction upon court in Pakistan was misconceived, because not only the provisions but the law settled till date was that the creditor to follow the debtor---Leave to appeal was granted by Supreme Court to consider the contentions of borrower---Petition was allowed.

Mian Mehmood Ahmad v. Hong Kong and Shanghai Banking Corporation Ltd. through Manager and 6 others 2010 CLC 293 and Valuegold Limited and 2 others v. United Bank Limited PLD 1999 Kar. 1 ref.

Ms. Ayesha Hamid, Advocate High Court (with special permission) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th June, 2015.

2015 S C M R 1696

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD AFZAL BUTT alias APHI---Petitioner

versus

The STATE and others---Respondents

Criminal Petition No.425-L of 2015, decided on 27th July, 2015.

(On appeal against the order dated 25-3-2015 passed by the Lahore High Court, Lahore in Crl. Misc. No. 1809-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, grant of---Statutory ground of delay in conclusion of trial---Joint trial of accused and co-accused persons---Delay in conclusion of trial caused by abscondment of co-accused persons---Effect---High Court refused to grant bail to accused on statutory ground of delay in conclusion of trial on basis that such delay occurred due to the abscondment of co-accused persons, who were closely related to the accused---Validity---Accused and some of the co-accused persons were being tried jointly---Only because some of the co-accused persons had absconded causing delay in conclusion of trial, was no ground to deprive the accused from bail---Trial of the accused could have been separated, if co-accused persons had absconded and were causing delay in conclusion of their joint trial with the accused---Besides nature of relationship between the accused and co-accused persons had not been described by the High Court, while declining bail to accused---Accused was granted bail by the Supreme Court in circumstances.

Shahid Azeem, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

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

Hameed Azhar Malik, Advocate-on-Record for the Complainant.

Date of hearing: 27th July, 2015.

2015 S C M R 1698

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Gulzar Ahmed and Maqbool Baqar, JJ

Sardar MUHAMMAD NASEEM KHAN---Appellant

versus

RETURNING OFFICER, PP-12 and others---Respondents

Civil Appeal No.394 of 2014, decided on 22nd April, 2015.

(Against the judgment dated 4-2-2014 of the Election Tribunal, Rawalpindi passed in E.P. No.187 of 2013/Rwp/04/0013)

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

----O. VI, Rr.1 & 17---Pleadings---Scope and significance---Importance of the pleadings and its legal value and significance could be evaluated and gauged from the fact that it was primarily on the basis thereupon that the issues were framed---Although the pleadings by themselves were not the evidence of the case, the parties to a litigation had to lead the evidence strictly in line and in consonance thereof to prove their respective pleas---Party was bound by the averments made in its pleadings and was also precluded from leading evidence except precisely in terms thereof---Party could not travel beyond the scope of its pleadings---Even if some evidence had been led by a party, which was beyond the scope of its pleadings, the court shall exclude and ignore such evidence from consideration, thus, if any party to a lis wanted to prove or disprove a case and some material had to be brought on the record as part of the evidence, which (evidence) otherwise was not covered by the pleadings, it shall be the duty of such party to first seek amendment of its pleadings.

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

----S. 55(3)---Civil Procedure Code (V of 1908), O.VI, R. 15---Amended election petition, verification of---Scope and principles---Appellant/runner up candidate had filed an election petition against the respondent/returned candidate challenging his qualification to contest the election---Appellant moved an application seeking amendment in the election petition so as to add two further grounds to the petition---Said application was allowed by the Election Tribunal and appellant filed the amended election petition---Respondent raised an objection before the Election Tribunal that amended election petition was not verified in terms of S.55(3) of the Representation of the People Act, 1976, thus, it was liable to be dismissed---Election Tribunal dismissed the amended election petition on the basis that it was not duly verified---Contentions of appellant that the amended election petition, in fact, was part and parcel of the original election petition and was an addition thereto, thus in law the amended petition had merged in the original petition; that as the original petition was duly verified in accordance with law, therefore regardless of whether the amended petition was verified or not, the defect shall not fall within the purview of S.55(3) of Representation of the People Act, 1976; that at best the Election Tribunal could have struck out the additional grounds that were added by way of amendment in the original election petition and the original petition should have been tried and decided on its own merits---Validity---Amended election petition in the present case for all intents and purposes was a final, independent and separate document (election petition) which had to be verified per the mandate of law---Once the original election petition was replaced and substituted by the amended election petition, the earlier could not be resorted to and it was not left to the choice of the appellant to fall back on the original petition and have the two grounds deleted for the resolution of the election dispute agitated by him---Principle of merger as put forth by the appellant was neither relevant nor shall apply in the present case, rather it was the principle of substitution which shall be attracted---For the determination and resolution of issues in disputes before the court, it was the amended pleadings which shall be taken into consideration and not the former pleadings---Issues were framed on the basis of the amended pleadings, and if already so framed, shall be modified to either score off any existing issue or to add the issues arising out of the amended pleadings---Admittedly the amended election petition was neither duly verified by the appellant in terms of O.VI, R.15, C.P.C. read with S.55(3) of the Representation of the People Act, 1976, nor was got attested from the Oath Commissioner--- Election Tribunal had rightly dismissed the amended election petition for not being duly verified---Appeal was dismissed accordingly.

Warner v. Sampson and another (1959) 2 WLR 109; Brij Kishore v. Smt. Mushtari Khatoon AIR 1976 All. 399 and B. Parbhu Narain Singh and others v. B. Jitendra Mohan Singh and another AIR (35) 1948 Oudh 307 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Muhammad Aurangzeb Khan, Advocate Supreme Court for Respondent No.2.

Date of hearing: 22nd April, 2015.

2015 S C M R 1704

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Umar Ata Bandial, JJ

BAJA through L.Rs. and others---Appellants

versus

Mst. BAKHAN and others---Respondents

Civil Appeal No.697 of 2008, decided on 16th June, 2015.

(On appeal from judgment of Lahore High Court, Lahore dated 24-5-2004, passed in Civil Revision No.680 of 2003)

(a) Gift---

----Illiterate and pardanashin lady---Special protection---Gift made by such lady, genuineness of---When the alleged donor of a gift was an illiterate and pardanashin lady, who disputed the very genuineness of the gift on the allegation of fraud, the courts had to look into the surrounding circumstances to ascertain the true intent behind the gift so as to determine its validity, and to ensure that women were not deprived of their property through frivolous or fraudulent means by taking advantage of their illiteracy, weak social background and other compelling circumstances to which they might be easily exposed.

Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 ref.

(b) Gift---

----Illiterate and pardanashin lady---Gift made by such lady, genuineness of---Fraudulent transaction---Alleged donor, who was an illiterate and pardanashin lady, allegedly gifted suit property to her relatives/alleged donees---Legality---Alleged donees were related to the alleged donor and were in a position to encash her shortcomings---Alleged donor had no reason to make the alleged gift especially when she had five children of her own---Alleged donees failed to discharge the burden of proving the validity of the gift---Alleged donees had sold the suit property to a third party, which party also failed to prove the necessary ingredients of alleged gift---Entries in the revenue record with respect to the purported gift had been managed fraudulently---Appeal was dismissed accordingly.

(c) Fraud---

----Fraudulent transaction---Superstructure built on the basis of a fraudulent transaction must collapse upon failure of such transaction.

(d) Limitation---

----Fraudulent transaction, challenge to---Limitation period---Period of limitation to challenge a fraudulent transaction ran from the date of knowledge.

Ch. Muhammad Yaqoob Sindhu, Advocate Supreme Court for Appellants.

Kh. Saeed-uz-Zafar, Advocate Supreme Court for Respondents Nos.1 and 5.

Ex parte for Respondents Nos.2, 3, 4 and 6.

Date of hearing: 16th June, 2015.

2015 S C M R 1708

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

Haji FARMAN ULLAH---Appellant

versus

LATIF-UR-REHMAN---Respondent

Civil Appeal No.49 of 2015, decided on 6th May, 2015.

(Against the judgment dated 4-9-2014 of the Peshawar High Court, Peshawar passed in R.F.A. No.217 of 2014)

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

----S. 12(2)---Dismissal of suit wherein application under S.12(2), C.P.C. was filed---Scope---Application filed under S.12(2), C.P.C. for setting aside of decree obtained through fraud and misrepresentation---Question as to whether the court while setting aside a decree on an application under S.12(2), C.P.C. could also dismiss the main suit---When an application filed by the defendant/applicant under S.12(2), C.P.C. was resisted/contested by the plaintiff/decree holder, the court may frame the issues (if need be, as on all such applications it was not imperative to do so) on the basis of the pleadings before it, which issues ordinarily and particularly were restricted to and were primarily meant for the purposes of adjudication and determination of the application under S.12(2), C.P.C.---Issues so framed did not even cover the main controversy between the parties, which controversy may ultimately arise between them once the decree was set aside, the suit was revived and the defendant of the case filed his written statement and joined issue on the merits of the case---If after the contest of the application under S.12(2), C.P.C., the court came to the conclusion that the decree did suffer from vice as was stipulated by the said section, it shall accept the same and as a general and ordinary rule and matter of course, the suit of the plaintiff shall stand revived and thereby give defendant a chance to file his written statement, for the purposes of setting up his defence in the main suit---Thereafter, the case shall be tried and decided on its own merits per the law prescribed for a suit---Where there is a controversy of facts or of law between the parties in the main lis, while accepting the application (under S.12(2) C.P.C.), the suit could not and should not be dismissed---Suit could not even be dismissed in those cases where for the determination and resolution of the application under S.12(2), C.P.C. either one of the parties or both had brought some evidence on record which had or may have had nexus to the merits of the suit as well, if and when it went to the trial---However, it was in very exceptional, special and extra-ordinary circumstances where e.g. the plaint did not disclose a cause of action or was barred under the law, that while accepting the application (under the provisions of S.12(2), C.P.C.), the court may also reject the plaint or even dismiss the suit for want of jurisdiction, where the jurisdiction of the court was clearly and undoubtedly barred under the law and there was no valid reason to revive and try the suit which the court otherwise had no jurisdiction to entertain and adjudicate upon---In appropriate cases of want of jurisdiction, the court while accepting the application under S.12(2), C.P.C. may order for the return of the plaint so that the matter was tried by a court of competent jurisdiction.

Falak Khurshid v. Fakhar Khurshid and others 2006 SCMR 595 ref.

Sheikh Muhammad Sadiq v. Illahi Bakhsh and 2 others 2006 SCMR 12; Allah Ditta and another v. Bashir Ahmed alias Faqiria PLD 1995 Lah. 76 and Nirsan Singh v. Kishuni Singh AIR 1931 Patna 204 distinguished.

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

----O. XIV, R. 1---Framing of issues---Purpose---Purpose of framing issues in a civil litigation was that the parties must know the crucial and critical factual and legal aspects of the case which they were required in law to prove or disprove through evidence in order to succeed in the matter on facts and also the points of law.

(c) Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal before the Supreme Court---Leave granting/refusing order, nature of---Such an order by the Supreme Court refusing leave or granting the same was not "law enunciated by the court."

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

Ghulam Mohy-ud-Din Malik, Senior Advocate Supreme Court for Appellant.

Khalid Mahmood Advocate Supreme Court for Respondent

Date of hearing: 6th May, 2015.

2015 S C M R 1716

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Dost Muhammad Khan, JJ

Ch. MUHAMMAD ASHFAQ---Petitioner

versus

The STATE and others---Respondents

Criminal Petitions Nos.268 to 270 of 2015, decided on 1st July, 2015.

(On appeal from the judgment/order dated 13-4-2015 passed by the Lahore High Court, Rawalpindi Bench in Crl. Misc. Nos.288-B/15, 289-B/15 and 285-B/15)

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

----S. 497---Penal Code (XLV of 1860), S. 415---Constitution of Pakistan, Art. 185(3)---Cheating---Bail, refusal of---Online scam---Defrauding public at large through fraudulent means---Accused along with co-accused persons was specifically nominated in the FIR with the allegation of running an online scam of offering jobs in return for money---More than fifty complaints of similar nature were received against the accused, which were still under inquiry/investigation thus, on the record available, the accused appeared to be a member of a gang of swindlers involved in deceptive tactics, depriving poor and needy people of their hard earned money---Accused was arrested from the same premises from where the alleged scam was being carried out through the alleged collaboration of accused and co-accused persons---Charge-sheet had been submitted in the case and trial was in progress, therefore, at present stage for bail purposes, deep appreciation of evidence or grant of bail on merits was not a permissible practice---Supreme Court refused bail to the accused in circumstances with the observation that online scams had to be curbed with iron hands and no mercy or leniency should be shown to persons involved in such organized crimes---Petition for leave to appeal was dismissed accordingly.

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

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

----S. 497---Penal Code (XLV of 1860), S. 415---Cheating---Bail---Offences not punishable with imprisonment for ten years or life imprisonment or death---Discretion of court to grant bail---Scope---Scams involving defrauding public at large---Concession of bail in offences which were not punishable with imprisonment for ten years or life imprisonment or death, was not a right of the accused but was discretionary with the courts, keeping in view the facts and circumstances of the case---In ordinary course and in crimes of ordinary nature, such discretion was to be exercised in favour of the accused, however, when contrived and designed methodology was pressed into service by defrauding a bulk of poor people through fraudulent means, the discretion of court to grant bail should ordinarily not be exercised in a routine/lenient manner.

(c) Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---Remedy, grant of---Pre-requisites---Matter involving important point of law relating to the public at large---Under the provisions of Art. 185(3) of the Constitution unless and until a particular matter involving an important point of law, relating to the public at large, was made out, the extraordinary remedy under the said provision could not be extended in a routine manner in each and every case.

Malik Jawad Khalid, Advocate Supreme Court for Petitioner (in all cases).

Raja Zaheer ud Badar, Advocate Supreme Court for Respondents Nos.3, 5, 6 and 9 (in Crl. P. 268 of 2015).

Nayyab Gardezi, Standing counsel and Tariq Bilal, Advocate Supreme Court for the State.

Nemo for other Respondents.

Date of hearing: 1st July, 2015.

2015 S C M R 1721

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

MEMBER BOR PUNJAB and another---Petitioners

versus

Mst. SIDDIQAN through L.Rs. and others---Respondents

Civil Petition No.615-L of 2013, decided on 24th July, 2015.

(Against the order dated 29-1-2013 of the Lahore High Court, Multan Bench, Multan passed in W.P. No.2-R/1995)

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed], S. 41---Dispute concerning evacuee nature or otherwise of property---Forum---Civil or Revenue authorities barred from exercising jurisdiction to entertain or adjudicate upon any such dispute---Where a property was rightly or wrongly treated to be an evacuee property, such treatment of property could only be assailed through proceedings before the Custodian of Evacuee Property or his successor i.e. the Notified Officer.

Azizuddin v. Muhammad Ismail 1985 SCMR 666; Nasir Fahimuddin and others v. Charles Philips Mills Civil Appeal No.514 of 2008 and Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441 ref.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed], S. 41---Constitution of Pakistan, Art. 185(3)---Dispute concerning evacuee nature or otherwise of property---Provincial Government failing to prove its ownership over subject land---Subject land was allotted to the respondents as "evacuee property"---Provincial Government challenged such allotment and claimed ownership of subject land by contending that the same was not evacuee property; that subject land was initially purchased by a party in an auction, which party defaulted in payment of balance consideration, as a result of which the auction was cancelled and subject land was resumed by the Provincial Government as per terms and conditions of the auction---Validity---Provincial Government did not challenge the allotment of land to the respondents as evacuee property before the Custodian of Evacuee Property or the Rehabilitation Department---Record did not show any order of resumption of subject land by the Provincial Government---Terms and conditions of the auction on basis of which the land was purportedly resumed for non-payment of balance consideration were also not available on record---Subject land could not have been resumed by the Provincial Government without a clear legal basis---High Court had rightly affirmed that the subject property was evacuee property, which was allotted to the respondents---Petition for leave to appeal was dismissed accordingly.

Muhammad Azeem Malik, Additional A.-G. for Petitioners.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing: 24th July, 2015.

2015 S C M R 1724

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Dost Muhammad Khan and Qazi Faez Isa, JJ

HAIDER ALI and another---Petitioners

versus

DPO CHAKWAL and others---Respondents

Civil Petition No. 1282 of 2014, decided on 4th September, 2015.

(Against the order dated 20-6-2014 of Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1194 of 2014)

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

----Ss. 154 & 22-A(6)---Police Order [22 of 2002], Art. 155---Penal Code (XLV of 1860), Ss. 182 & 211---Criminal justice system in Pakistan, deficiencies in---Pre-investigation stage (registration of FIR)---Inefficiency, maladministration and abuse of power by the police with regard to registration of FIR---Directions by Justice of Peace---Implementation--- Police flouting provisions of S. 154, Cr.P.C.---Supreme Court observed that police stations refused to register FIRs even if the information provided by a complainant related to the commission of a cognizable offence---Number of persons suffered and were pushed into litigation because of failure of the police to register the FIR---Directions of Justice of Peace to take action against defaulting Station House Officers (SHOs) were rarely implemented---People who registered false or vexatious complaints/ cases were rarely prosecuted---Inefficiencies, maladministration and abuse of power by the police with regard to registration of FIR highlighted.

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

----Ss. 156 & 157---Criminal justice system in Pakistan, deficiencies in---Investigation stage---Incompetency and lack of training of police for purposes of investigation of a case and arrest of an accused---Initiating investigation of a case was not mandatory unless the officer in charge of a police station, from the information received by him, had reason to suspect the commission of an offence---Supreme Court observed that what practically happened, often, was that on registration of a FIR, the relevant police officer without application of mind directly proceeded to arrest the accused---Police should not move for the arrest of the accused nominated in the FIR unless sufficient evidence was available for the arrest---No real guidelines were available to the police which would channel their discretion and judgment with regard to investigation and arrest of an accused---Lack of training of police and emphasis on the development of specialized investigation officers and facilities, was a major reason for defective investigation---Police, it appeared, was still largely used to secure the interests of the dominant political regime and affluent members of society, rather than furthering the rule of law---Incompetency of police and lack of focus on their training for purposes of investigation of a case and arrest of an accused highlighted.

Muhammad Bashir's case PLD 2007 SC 539 ref.

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

----Part VI [Ss. 177 to 442]---Criminal justice system in Pakistan---Low conviction rates---Prosecution and trial, deficiencies in---Lack of cooperation between the police and prosecution---Lack of training of prosecutors---Lack of protection of witnesses---Adjournments requested by lawyers---Delay in fixation of cases by courts---Deficiencies in the prosecution system which resulted in very low conviction rates highlighted.

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

----Chapters VIII, IX & X [Arts. 73 to 108]---Police officials, accountability of---Police funds and performance reports, transparency of---Supreme Court observed that sufficient measures were not taken by senior police officials to deter delinquent behaviour and misconduct by police officials---Accountability forums which were created pursuant to the Police Order, 2002, in the form of National and Provincial Public Safety Commissions and Police Complaints Authority were either inactive or not operational---Information regarding funds allocated to the police, police plans and annual performance reports were not publicly available---Lack of accountability of delinquent police officials and transparency of funds allocated to police, highlighted.

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

----S. 154---Police Order [22 of 2002], Chapters VIII, IX & X [Arts.73 to 108]---Penal Code (XLV of 1860), Ss. 182 & 211---Constitution of Pakistan, Arts. 9, 10, 10A & 14---Criminal justice system in Pakistan, deficiencies in---Supreme Court observed that existence of a high degree of political and administrative apathy had translated into a failing criminal justice system---Failure to address individual grievances of citizens caused frustration amongst them which, in turn, may lead to lawlessness---Functioning criminal justice system was directly linked to the enforcement and realization of various Fundamental Rights of citizens such as Arts. 9, 10, 10A & 14 of the Constitution---Directions given by the Supreme Court to address the issues of inefficiency, maladministration and abuse of power by the police and the deficiencies in the criminal justice system of Pakistan stated.

Following are the directions given by the Supreme Court to address the issues of inefficiency, maladministration and abuse of power by the police and the deficiencies in the criminal justice system of Pakistan.

(i) A universal access number (UAN) and website should be provided to the general public for filing of complaints. The said website should be developed and be operational within three months from the date of present order. Till such time that the website was launched, the provisions of section 154 Cr.P.C. should be strictly adhered to and action should be taken against any police official who failed to abide by the said provision.

(ii) Serious notice should be taken of frivolous, false or vexatious complaints and where applicable cases should be registered under sections 182 and 211 of the Pakistan Penal Code, 1860.

(iii) Principles laid out in Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) should be strictly followed and no person should be arrested unless there was sufficient evidence available with the police to support such arrest. Where a person was unjustly deprived of his liberty, compensation would be required to be paid to him or her by the delinquent police officer. The affected person may approach the civil courts for appropriate remedy in such regard.

(iv) Adequate provision should be made for the training of police officers and the development of specialized investigation officers and facilities. In addition adequate funds should be made available to police stations and for investigation activities. The respective Provincial and Federal heads of police shall submit a report in court within three months from the date of present order which detailed the steps taken in such regard and the relevant police funds and personnel dedicated towards investigation activities, training of police personnel, and development of forensic facilities.

(v) No police officer was to be transferred in breach of the principles laid out by Supreme Court in the case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195). The respective Provincial and Federal Heads of police shall submit a report in court within one month from the date of present order which specified the names and details of all police officers above BPS-17 who had been transferred or made Officers on Special Duty (OSD) over the past three years and also provide reasons for the same.

(vi) Guidelines/SOPs should be developed to foster coordination between the prosecution and the police. The Attorney General and the respective Advocates General of each province shall submit the said guidelines/SOPs in court within three months from the date of present order.

(vii) Adequate funds should be dedicated towards the training and development of public prosecutors. The Attorney General and the respective Prosecutors General of each province shall submit in court within three months from the date of present order details of hiring requirements and compensation packages of public prosecutors; and accountability mechanisms and review systems of public prosecutors.

(viii) The Attorney General and the respective Advocates General shall submit a report in court within one month from the date of present order stating the steps being taken to provide witness protection in their relevant jurisdiction and the funds dedicated for such purpose.

(ix) The respective Bar Councils may take appropriate action against lawyers who deliberately sought adjournments with a view to delay trial. Respective district judges were also directed to impose costs on such lawyers and hear criminal cases involving the liberty of persons on a day to day basis to the extent possible.

(x) Respective Heads of police of the Federation and the Provinces shall submit a report within one month of the date of present order which detailed the relevant police complaints and accountability mechanisms in place and the actions taken under such mechanism against delinquent police officials. Such information shall also be made publicly accessible in English as well as Urdu on their respective websites. The Attorney General and respective Advocates General shall submit a report detailing compliance in such respect within one month from the date of present order.

(xi) Police budgets (disaggregated by district and local police stations, functions, human resource allocation and a statement of their utilization), police plans and annual performance reports shall be made publicly accessible on the respective Federal and Provincial police websites and submitted in court within one month of the date of present order. The Attorney General and respective Advocates General shall submit a report detailing compliance in such respect within one month from the date of present order.

(xii) The Attorney General and the respective Advocates General of the Provinces of Sindh and Balochistan should submit in Court within one month from the date of present order reports which examined the Constitutionality of the policing regime established by the Police Act, 1861, currently in force in Sindh and the Balochistan Police Act, 2011 currently in force in Balochistan. Such report should inter alia state whether these policing statutes allowed the constitution and organization of a politically independent police force which was consistent with the protection of the Fundamental Rights of citizens.

(xiii) The Federal and Provincial Ombudsmen should submit in Court within three months from the date of present order, good-administration standards for police stations and should also submit a report which outlined the measures being taken to curb maladministration in police stations.

(xiv) Provincial Information Commissioners should notify transparency standards relating to police services and functions and submit these standards in court within three months from the date of present order.

(xv) The Law and Justice Commission of Pakistan shall prepare a consolidated report based on the various reports received by the court till date and the proposals submitted by a senior Advocate, Supreme Court during proceedings of the present case, detailing the relevant amendments which were required in legislation to improve the criminal justice system. Said report shall be submitted in court within three months from the date of present order. Copies of the said report shall also be sent to the National and Provincial Assemblies.

Muhammad Bashir's case PLD 2007 SC 539 and Anita Turab's case PLD 2013 SC 195 ref.

Syed Rafaqat Hussain Shah, Advocate-on-Record with Haider Ali Petitioner No.1.

Sohail Mehmood, Dy. Attorney General and Syed Nayab Hassan Gardezi, Advocate Supreme Court/Standing Council for the Federation on Court's Notice.

Tariq Mehmood Butt, Prosecutor-General, Muhammad Ayaz Khan Swati, Additional A.-G and Syed Parvaiz Akhtar, Dy. Prosecutor-General for Government of Balochistan on Court's Notice.

Mujahid Ali Khan, Additional A.-G. for Government of Khyber Pakhtunkhwa on Court's Notice.

Razzaq A. Mirza, Additional A.-G. and Ch. Zubair Ahmed Farooq, Additional P.-G. for Government of Punjab on Court's Notice.

Shehryar Qazi, Additional A.-G. for Government of Sindh on Court's Notice.

Date of hearing: 4th September, 2015.

2015 S C M R 1739

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Umar Ata Bandial, JJ

LAHORE DEVELOPMENT AUTHORITY through D.-G. and others---Appellants

versus

Ms. IMRANA TIWANA and others---Respondents

Civil Appeals Nos.545 to 550 of 2015, decided on 8th July, 2015.

(Against the judgment/order dated 17-4-2015 of the Lahore High Court, Lahore passed in W.Ps. Nos.7955, 5323 and 8008 of 2015)

(a) Constitution of Pakistan---

----Arts. 30(2), 32, 37(i) & 140A---Government action or law, validity of---Principles of Policy---Local Government institutions---Encouraging the growth of Local Government institutions and decentralization of the Government administration were Principles of Policy under Arts. 32 & 37(i) of the Constitution---Validity of an action by Government or of a law could not be called into question on such basis (i.e. Principles of Policy) in view of Art. 30(2) of the Constitution.

Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11; Farhat Jaleel v. Province of Sindh PLD 1990 Kar. 342; Ghulam Mustafa v. Province of Sindh 2010 CLC 1383 and Shazia Irshad Bokhari v. Government of Punjab PLD 2005 Lah. 428 ref.

(b) Constitution of Pakistan---

----Art. 2A---Objectives Resolution---Statute, vires of---Article 2A [Objectives Resolution] could not be used to strike down statutes.

Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901; Tank Steel and Re-Rolling Mills Pvt. Ltd. v. Federation of Pakistan PLD 1996 SC 77; Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11 and The Province of Punjab v. National Industrial Cooperative Credit Corporation 2000 SCMR 567 ref.

(c) Constitution of Pakistan---

----Art. 4--- Right of individuals to be dealt with in accordance with law, etc.---Legislation, vires of---Article 4 was not accepted as a criterion to test the vires of legislation.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(d) Constitution of Pakistan---

----Arts. 2A, 4 & Part II, Chapters 1 & 2 [Arts. 8 to 40]---Objectives Resolution and Principles of Policy---Scope---Statute/legislation, vires of---Objectives Resolution and Principles of Policy could be used to understand and interpret the Fundamental Rights in the Constitution in their proper context, as it may facilitate an interpretation of Fundamental Rights in harmony with and not divorced from their Constitutional setting---Object of such approach was to harmoniously construe the various provisions of the Constitution in a holistic manner---Objectives Resolution, Art. 2A and the Principles of Policy, however, either on their own or when read together could not be used to test the validity of statutes and strike them down.

(e) Constitution of Pakistan---

----Arts. 137 & 140A---Local Government system, functions of---Extent of executive authority of Provincial Government---Scope---Correlation between Local Government and Provincial Government---Functions of a Local Government could not be read/interpreted so as to trump the executive authority of Provincial Government---Articles 137 & 140A of the Constitution had to be read in harmony---Neither provision overrode the other---Both provisions provided a scheme for a representative government and participatory democracy in the country, and a scheme to establish Local Government and articulate a framework within which the Provincial Government must function---Authority conferred on the Province and the responsibilities devolved on the Local Government formed part of a common scheme, and they were not to be used as trumps---One could not cancel the other as they were co-equal norms, which weaved the constitutional fabric.

(f) Constitution of Pakistan---

----Arts. 137, 140A & 142---Correlation between the powers/functions of Local Government and Provincial Government---Scope---Local and Provincial Governments acting in harmony with one another in the public interest---Once the Province had exercised its legislative authority to devolve certain political, administrative or financial functions or authority on the Local Government, its legislative and executive authority would not be correspondingly abridged---Province was under an obligation under Art. 140A of the Constitution to establish, by law, a Local Government System and to devolve political, administrative and financial responsibility on the Local Government; yet, in doing so it was not stripped bare of its executive and legislative authority under Arts. 137 & 142 of the Constitution---Provincial and the Local Governments were to act in a manner, which complemented one another---Legislative authority of the Province in Local Government matters could not be curtailed or limited---Circumstances or political realities of the day may compel modifications with regard to functions and responsibilities of the Local and Provincial Governments, thus, it could not be said that the Province would have no legislative authority in the matter---Constitution, therefore, envisaged a process of participatory democracy, where the two governments (Provincial and Local Governments) acted in harmony with one another to develop the Province---Authority of neither government destroyed the other---Article 140A of the Constitution could not be used to make the provisions of Arts. 137 & 142 of the Constitution either subordinate to it or otiose---Creation of a Local Government System, and the conferment upon the Local Government of certain political, administrative and financial responsibilities did not deprive the Province of authority over its citizens and deny it all role in the progress, prosperity and development of the Province---Creation of a Local Government System did not spell the end of the Provincial Government in the Province; to the contrary it strengthened the Provincial Government by entrenching democracy at grass root level---Even after the insertion of Art. 140A of the Constitution the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with regard to Local Government and local authorities, enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries---Such power of amendment, however, was subject to the fact that if the Provincial Government overstepped its legislative or executive authority to make the Local Government powerless, such exercise would fall foul of Art. 140A of the Constitution, and be struck down by the court---Provincial Government, in the exercise of its legislative and executive authority could aid and support the Local Government and was not prevented from taking the initiative for the growth and development of the people---Exercise of such authority must, however, be in the public interest; it should encourage institutional growth and harmony; and it must be in consultation and with the participation of the Local Government---Where the Local Government declined to give consent to a project, which the Provincial Government planned to undertake, for extraneous reasons other than in the public interest, the Provincial Government would be at liberty to act in the public interest while constantly drawing guidance from the provisions of the relevant Provincial law dealing with Local Government---Courts too could step in and interfere with such failure of Local Government to grant consent.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(g) Interpretation of Constitution---

----Constitution was a living document--- Constitution must be interpreted with an eye to the future, as the future may throw up issues which required legislative intervention.

(h) Legislation---

----Legislature of today could not enact a law or pass a resolution, which binds a successor legislature---Such a commitment made either through a resolution or legislation, whereby the powers of a future legislature to amend a law were abridged would not bind a successor legislature or even the same legislature.

In Re: Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by President Zulfikar Ali Bhutto PLD 1973 SC 563 ref.

(i) Constitution of Pakistan---

----Arts. 137 & 142---Legislative or executive authority of a Province, exercise of---Scope---Words "Subject to the Constitution" used in Arts.137 & 142 of the Constitution---Meaning---Said words meant that where the Constitution itself placed a bar on the exercise of legislative or executive authority by the Province such authority could not be exercised in spite of its conferment by Arts. 137 & 142 of the Constitution---Words, "Subject to the Constitution" did not make Arts.137 or 142 of the Constitution subservient to the remaining provisions of the Constitution---Said words only meant that where the Constitution created a specific bar to the exercise of such executive or legislative authority or provided a different manner for such exercise then that authority must either not be exercised at all or exercised in such manner as the Constitution permitted.

(j) Interpretation of Constitution---

----One Constitutional provision could not, unless it was so specifically provided, override the other---Constitutional provisions must be harmoniously construed together.

Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Zaheeruddin v. The State 1993 SCMR 1718; Al-Jehad Trust v. Federation of Pakistan PLd 1996 SC 324; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719; Raja Muhammad Afzal v. Government of Pakistan PLD 1998 SC 92 and Wukala Muhaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

(k) Constitution of Pakistan---

----Arts. 137, 140A & 142---Political, administrative and financial authority to be conferred on the Local Government by the Provincial Government---Scope---Observations recorded by the Supreme Court with regard to the extent of political, administrative and financial authority that a Provincial Government should devolve on the Local Government, and as to why extent of such devolution should emerge through a gradual consultative process between the people and their elected representatives, without any interference from the judiciary detailed.

Following were the observations recorded by the Supreme Court with regard to the extent of political, administrative and financial authority that a Provincial Government should devolve on the Local Government, and as to why extent of such devolution should emerge through a gradual consultative process between the people and their elected representatives, without any interference from the judiciary.

Conferment of all political, administrative and financial authority on the Local Government by the Provincial Government would completely efface the latter within a Province and would violate Articles 137 and 142 of the Constitution. On the other hand, a complete failure to devolve any such authority on the Local Government would violate Article 140A of the Constitution, therefore some meaningful political, administrative and financial authority must be devolved on the Local Governments. Extent of such devolution had to be between nothing and everything. Constitution makers could have determined the scope of such devolution by enumerating Local Government powers within the Constitution itself, however, they chose, not to do so. Such omission by the Constitution makers to specifically enumerate such powers was deliberate; they left the scope of such powers to be determined by each Province in accordance with the prevailing circumstances and political realities of the day. Constitution makers acknowledged that the process of devolution must be initiated, yet were conscious of the fact that it had to be gradual. As Local Governments evolved, more and more powers would have to be devolved. Room was left for political experimentation, constitutional dialogue and growth. Instead of enumerating Local Government powers the Constitution makers left them to be worked out in harmony between the Provincial and Local Government, because they were conscious that political processes were evolutionary in nature. It would not be appropriate to enumerate the minimum or maximum political, administrative and financial powers which must be conferred upon the Local Government to satisfy the mandate of Article 140A of the Constitution. These had to be worked out by the Local and Provincial Governments in a constitutional dialogue over time as the political process continued and democracy took root; it could not be done wholesale. In this regard the Provincial Government, as the repository of all legislative and executive authority in the Province, must take the initiative. It was, therefore, for the Provincial Government to work constantly and tirelessly to fulfill the mandate of Article 140A and realize its ideals. Institutions took root over time and drew strength from a continuous constitutional dialogue between the people and their elected representatives. Imposition of a ready-made model from the top often proved dysfunctional; it retarded rather than accelerating political consensus. A model which developed after mutual give and take over time was much more stable. Since the Constitution itself did not state the scope of devolution of powers from the Provincial to the Local Governments, therefore, the judges should be wary of rushing in where Constitution makers hesitated to tread. Scope of such devolution would emerge gradually with time through a constant process of give and take at various levels between the two elected governments (Provincial and Local Governments) and between the elected representatives and their constituents. Scope of such devolution laid down by a Judge might have the advantage of certainty, but at the same time it would suffer from the limitations of having by-passed the political processes and having not been tested in the crucible of time. It would be brittle and lack flexibility, and would freeze political debate. When unelected Judges took over the policing of lines which were better manned by the people and their elected representatives, it retarded the growth of politics and the evolution of the Republic.

Court should much prefer a solution which allowed Constitutional dialogue and political processes to evolve the dynamics of devolution that would lead to the development of stable and functionally efficient institutions over a period of time.

(l) Interpretation of statutes---

----Power of court to strike down or declare a legislative enactment as void or unconstitutional---Principles to be applied and considered by the court when striking down or declaring a legislative enactment as void or unconstitutional listed.

Following are the principles which must be applied and considered by the court when striking down or declaring a legislative enactment as void or unconstitutional:

(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two;

(ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity;

(iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

(iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds;

(v) Court should not decide a larger Constitutional question than was necessary for the determination of the case;

(vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution;

(vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality;

(viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and

(ix) Mala fides should not be attributed to the Legislature.

Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Mehreen Zaibun Nisa v. Land Commissioner PLD 1975 SC 397; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362; Ellahi Cotton Mills Limited v. Federation of Pakistan PLD 1997 SC 582; Dr. Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Mian Asif Aslam v. Mian Muhammad Asif PLD 2001 SC 499; Pakistan Muslim League (Q) v. Chief Executive of Pakistan PLD 2002 SC 994; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719; Messrs Master Foam (Pvt.) Ltd. v. Government of Pakistan 2005 PTD 1537; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Federation of Pakistan v. Haji Muhammad Sadiq PLD 2007 SC 133; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 and Iqbal Zafar Jhagra v. Federation of Pakistan 2013 SCMR 1337 ref.

(m) Lahore Development Authority Act (XXX of 1975)---

----Ss. 6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 & 46---Punjab Local Government Act (XVIII of 2013), S. 87---Constitution of Pakistan, Arts. 9, 14, 17, 25, 32, 37(i) & 140A---Public interest litigation---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Constitutionality and legality---Overlapping between functions/ jurisdiction of Local Government and Lahore Development Authority ("LDA") in respect of development work---Harmonious interpretation of Punjab Local Government Act, 2013 and Lahore Development Authority Act, 1975---Provincial and Local Government to work together in public interest---High Court struck down the Project in question as being unconstitutional by holding that the powers and functions of LDA under Ss. 6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 & 46 of Lahore Development Authority Act, 1975, to the extent that they usurped, trumped, encroached, diluted and abridged the powers, responsibility and authority devolved on to the elected representatives of the Local Government under Art. 140A of the Constitution through Punjab Local Government Act, 2013, were ultra vires Arts. 9, 14, 17 & 25 of the Constitution and offensive to Arts.32, 37(i) & 140A of the Constitution; that proceeding with the "Signal Free Corridor Project" by LDA would be in violation of Art. 140A of the Constitution---Validity---High Court discussed Fundamental Rights under Arts. 9, 14, 17 & 25 of the Constitution in its judgment, but did not state as to how said Fundamental Rights were violated or encroached upon by the provisions of the Lahore Development Authority Act, 1975, which were struck down---Judgment of High Court did not make any attempt to put down provisions of Lahore Development Authority Act, 1975 (which were struck down) next to the said Fundamental Rights of the Constitution and state why the two could not be reconciled---Impugned judgment of High Court did not discuss as to why said Fundamental Rights could not be exercised on account of the provisions of the Lahore Development Authority Act, 1975, which were struck down and did not discuss as to why given the size and expansion of the population of Lahore city, and the nature and complexity of the problems and the needs of a mega city, like Lahore, it could not be dealt with and its growth and development promoted in a manner different from other parts of the Province---Such a classification was not per se unreasonable---Government must not be compelled to follow a cookie cutter approach or else to suffer judicial condemnation---Where a statute was not ex facie repugnant to Fundamental Rights under the Constitution but was capable of being so administered, it could not be struck down unless the party challenging it could prove that it had been actually so administered---Petitioners, in the present case, could not establish as to how the Lahore Development Authority Act, 1975 had been administered in a way that was repugnant to the Fundamental Rights under the Constitution, thus, there was no basis for the High Court to strike down the provisions of the Lahore Development Authority Act, 1975---Provisions of Lahore Development Authority Act, 1975, and Punjab Local Government Act, 2013 had to be read in harmony---Lahore Development Authority Act, 1975, was to be regarded as an enabling statute; it allowed LDA to act in support of and to complement the Local Government in the exercise of its functions and responsibilities---Many situations could arise which might warrant LDA to work in consultation with or support the Local Government within the purview of Punjab Local Government Act, 2013 e.g. where the Local Government was unable to act because of a lack of resources or capacity, or where the project was of such a nature that it spilled over from the territory of one Local Government to another or where the size of the project was beyond the financial capacity of the Local Government to execute, the LDA could step in and work with the Local Government---Said situations were not exhaustive and time may throw up other situations and create circumstances which may warrant action to be taken by LDA in consultation with the Local Government---When harmoniously construed, there was no conflict between the provisions of the Lahore Development Authority Act, 1975, and Punjab Local Government Act, 2013---High Court in its judgment also ignored the fact that elections to Local Government in the Province had not taken place as yet, and, thus, Local Government did not exist---Developmental work, even if it fell within the domain of the Local Government, could not have been abandoned and all projects brought to a standstill simply because the Local Government did not exist---Even if functions were assumed to be within the exclusive domain of the Local Government and could only be exercised by it to the exclusion of everyone else, even then, given the present ground reality, the Provincial Government could not be taken to task for carrying out development work---Further, the High Court gave no reason why there being a vacuum (due to the non-existence of a Local Government), LDA and/or Provincial Government could not carry out development works, thus, it was not at all necessary to interfere in the Project in question---In the vacuum resulting from the absence of Local Government institutions, the initiation, approval and execution of the disputed Project by the Provincial Government through its agency, LDA, was valid---Supreme Court directed that Project in question may accordingly be completed subject to provision of additional facilities for pedestrians, inter alia, including road crossing and passes at intervals of one-kilometer or less along the project road distance; that new project falling within the domain of Lahore Metropolitan Corporation for approval or execution shall not be undertaken by the Provincial Government or its agency without prior consultation and consent, unless such consent was withheld without justified reasons in respect of the project; that Provincial Government was under a duty to establish harmonious working relationship with an elected Local Government wherein respect was accorded to the views and decisions of the latter---Appeal was partly allowed accordingly.

(n) Constitution of Pakistan---

----Part II, Chapter. 1 [Arts. 8 to 28]---Statute, vires of---Fundamental Rights under the Constitution---Where a statute was not ex facie repugnant to Fundamental Rights under the Constitution but was capable of being so administered, it could not be struck down unless the party challenging it could prove that it had been actually so administered.

Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Benazir Bhutto v. Federation of Pakistan 1991 MLD 2622; East and West Steamship v. Pakistan PLD 1958 SC 41 and Jibendra Kishore Achharyya Chowdhry v. The Province of East Pakistan PLD 1957 SC 9 ref.

(o) Lahore Development Authority Act (XXX of 1975)---

----S. 46---Punjab Local Government Act (XVIII of 2013), Preamble---Constitution of Pakistan, Art. 140A---Over-riding effect of provisions of Lahore Development Authority Act, 1975---Scope and Constitutionality---Section 46 of the Lahore Development Authority Act, 1975 gave its provisions overriding effect, however such over-riding effect would apply only in the event of a conflict or inconsistency between its provisions and that of other statutes; it would have no application and could not be used to stall the Punjab Local Government Act, 2013, when substantive factual or policy grounds were unavailable---Section 46 of the Lahore Development Authority Act, 1975, did not trump or destroy or abridge any provision of the Punjab Local Government Act, 2013---Section 46 of the Lahore Development Authority Act, 1975, thus, did not offend Art. 140A of the Constitution however where S. 46 of the said Act purported to override a conflicting action taken by an elected Local Government, it would be against the scheme of the Constitution and S. 46 should either be read down or declared ultra vires to the Constitution in such circumstances---Appeal was partly allowed accordingly.

(p) Interpretation of statutes---

----Interpretation that validated (a provision/statute) outweighed the one that invalidated the same.

Panama Refining Company v. Ryan 293 U.S. 388, 439 (1935) ref.

(q) Regulatory capture, doctrine of---

---Application of doctrine of regulatory capture---Scope---Exercise of discretion by the regulator---Scope---Regulator, discretion of---Doctrine of regulatory capture applied where a statutory body set up to regulate a group was then manned by the persons from that group to defeat regulation---Said doctrine would not apply where the regulated included the government because inevitably appointments to such regulatory bodies had to be made by the government, however that did not mean that the government could defeat the legislative intent by not appointing persons to such bodies or by making appointments of such persons who would act but only under its dictation---Power to appoint had to be exercised in a fair manner and the exercise of authority by the appointee had to be transparent, in the public interest and non-arbitrary---Government did not have an absolute discretion in the matter of such appointment---Even where legislative bodies conferred discretion on regulators without meaningful standards it was the duty of those on whom such discretion had been conferred to structure it---Regulators must develop standards to regulate their discretion, and must confine their discretion through principles and rules.

Chairman RTA v. Pak Mutual Insurance Co. PLD 1991 SC 14 ref.

(r) Punjab Environmental Protection Act (XXXIV of 1997)---

----Ss. 5(6), 12, 22 & 23---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Sched. II, Part-D, Serial No.2---Constitution of Pakistan, Arts. 9, 14, 17 & 25---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Environmental Impact Assessment---High Court set aside the Environmental Impact Assessment (EIA) approval for the Project in question by declaring that the same was granted by Director General, Environment Protection Agency in violation of certain Fundamental Rights of the citizenry besides being offensive to environmental justice and due process protected under the Constitution---Validity---Section 5(6) of the Punjab Environmental Protection Act, 1997 imposed a mandatory duty on the Provincial Government to constitute Advisory Committee under the said Act---Said Committee was meant to assist the Environmental Protection Agency in evaluating the environmental impact of projects under consideration---Failure by the Provincial Government to constitute the said Committee in the present case violated its statutory duty---Environmental Impact Assessment approval for the Project in question could be struck down for such failure of the Provincial Government, however in the present case, the Project in question did not require Environmental Impact Assessment approval because as per entry at Serial No.2 of Part-D of Schedule-II of the Pakistan Environmental Protection Agency (Review of IEE & EIA) Regulations, 2000 projects for rebuilding or reconstruction of existing roads did not require an Environmental Impact Assessment---Even otherwise impugned judgment of High Court had not recorded any objection to the Environmental Impact Assessment approval on its merits, nor had the petitioners (before the High Court) highlighted any objection that had remained unattended and yet was fatal to the Environmental Impact Assessment approval---Moreover, the Punjab Environmental Protection Act, 1997 provided an appeal to an Environmental Tribunal and a second appeal to a Division Bench of the High Court---Neither of these remedies had been availed before filing Constitutional petition before the High Court---Environmental Impact Assessment approval could not be struck down in the present case upon a mere presumption or apprehension---Appeal was partly allowed accordingly.

(s) Expunction of remarks from the Judgment---

----Expunction of disparaging remarks made by the High Court against a counsel---Judges of the High Court made a number of disparaging remarks about a senior counsel who objected to the composition of the Bench---Supreme Court observed that such remarks undoubtedly caused reputational damage; that the temptation to adopt such a course must be avoided except in the rarest of rare cases, and even then the reasons for making such remarks must be carefully and clearly stated; that the disparaging remarks in the present case had been made by the High Court without a word of explanation as to what occasioned them---Supreme Court directed that disparaging remarks in question contained in impugned judgment of the High Court should be expunged---Appeal was partly allowed accordingly.

Kh. Haris Ahmed, Senior Advocate Supreme Court, Mustafa Ramday, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record, Asrar Saeed, Chief Engineer LDA and Nawaz Manik, Director Law EPA Punjab for Appellants (in C.As. Nos. 545, 547 and 548 of 2015).

Makhdoom Ali Khan, Senior Advocate Supreme Court, Khurram Mumtaz Hashmi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants (in C.As. Nos.546, 549 and 550 of 2015).

Salman Akram Raja Advocate Supreme Court for Respondent No.1 in person (in C.As. Nos.545 and 546 of 2015).

Raza Kazim, Senior Advocate Supreme Court for Respondent No.1 (in C.As. Nos. 548 and 550 of 2015).

Mirza Mehmood Ahmed, Advocate Supreme Court for Respondent No.1 (in person) in C.As. Nos.547 and 549 of 2015)

Shahid Hamid, Senior Advocate Supreme Court and Ms. Ayesha Hamid, Advocate for Respondent No.10 (in C.A. No.547 of 2015).

Salman Aslam Butt, Attorney General for Pakistan, Razzaq A. Mirza, Additional A.-G. Punjab and Mudassir Khalid Abbasi, A.A.-G. Punjab on Court's Notice.

Dates of hearing: 22nd, 25th, 29th June to 3rd July, 6th to 8th July, 2015.

2015 S C M R 1779

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Dost Muhammad Khan, JJ

H.R.C. NO. 4729-P OF 2011 IN S.M.C. NO.3 OF 2009: In the matter of Application by Muhammad Shafi

H.R.C. No. 4729-P of 2011 in S.M.C. No. 3 of 2009, decided on 14th July, 2015.

Constitution of Pakistan---

----Art. 184(3)---Criminal Procedure Code (V of 1898), S. 154---Suo motu case before the Supreme Court---FIR, registration of---Alleged encroachment on forest land by a private property developer---Beating up and unlawful detention of employees of Forest department---Chief Conservator of Forests had written a letter to the concerned Deputy Inspector General of Police, seeking registration of criminal case against the functionaries of a private property developer and a construction company for beating up and unlawfully detaining employees of Forest department when they tried to prevent encroachment on forest land--- Case record showed that no FIR had been registered to date---Supreme Court directed that the concerned City Police Officer (CPO) should submit a report, as to whether any FIR was registered, pursuant to the letter of the Conservator of the Forests and if so, what was the outcome of such FIR; that if no FIR was registered, the City Police Officer (CPO) shall state the reasons for not registering the same---Order accordingly.

Malik Muhammad Shafi Applicant in person.

Razzaq A. Mirza, Additional A.-G. Punjab, Ejaz Ahmed, DFO, Rawalpindi, Tasleen Ali, AC Saddar, Rawalpindi and Iftikhar Ahmed Qureshi, CF, Rawalpindi on Court's Notice.

Aitazaz Ahsan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Bahrai Town.

Israr Abbasi, CPO, Rawalpindi on Courts Call.

2015 S C M R 1783

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

MUHAMMAD RIAZ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of information Technology, Government of Pakistan, Islamabad and others---Respondents

Civil Petition No. 797 of 2015, decided on 1st July, 2015.

(On appeal against the judgment dated 11-3-2015 passed by the Islamabad High Court, Islamabad, in W.P. No.1727 of 2012)

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 35, 36, 45 & 46(1)(d)---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Pakistan Telecommunication Corporation Employees Pension Fund (as created by a Trust Deed dated the 2nd April 1994), Para. 2---Terms and conditions of service---Pension---Employees of Pakistan Telegraph and Telephone Department (T&T Department) who were subsequently transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)---Entitlement of such employees to receive pensionary benefits as revised/increased by the Federal Government---Terms and conditions of service of the transferred employees from T&T Department to the Corporation and then to the Company remained unaltered and they continued to be paid the benefits as were admissible to them as employees of T&T Department---Terms and conditions of service and also the rules of service which were applicable to the T&T Department employees while in employment of the Federal Government would continue to be applicable to them on their transfer to the Corporation and then to the Company---Employees of T&T Department who were transferred to the Corporation and then to the Company, would on retirement be entitled to payment of pension announced by the Federal Government, from time to time, thus if any increase in pension was announced by the Federal Government for its employees, the same would also apply and be paid to the employees of T&T Department transferred to the Corporation and then to the Company---Appeal was allowed accordingly.

Taufiq Asif, Advocate Supreme Court for Petitioner.

Syed Nayab Hassan Gardezi, Standing Counsel for Respondent No.1.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.2 and 3.

2015 S C M R 1795

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

AZHAR IQBAL (AZHAR HUSSAIN)---Petitioner

Versus

ABID HUSSAIN---Respondent

Criminal Review Petition No.47 of 2015 in/and Crl. P. 578 of 2014, decided on 21st August, 2015.

Constitution of Pakistan---

----Arts. 187 & 190---Supreme Court Rules, 1980, O. XXXII, Rr. 1, 2 & O. XXXIII, R. 1---Civil Procedure Code (V of 1908), O.XXVI, R. 10---Judicial powers---Local commission, appointment of---Supreme Court showed concern about immigration into Pakistan, emigration from Pakistan, human trafficking and smuggling---Supreme Court, in exercise of judicial powers conferred under Arts. 187 & 190 of the Constitution, O.XXII, Rr. 1 & 2 read with O.XXXIII, R. 1 of Supreme Court Rules, 1980 coupled with the principles of Civil Procedure Code, 1908, including its O.XXVI, R. 10, constituted two commissions to ascertain the conditions of international borders and directed the two commissions to visit Pakistan's borders at Torkham and Chamman and to prepare comprehensive reports together with photographs, maps, etc.

Ch. Munir Sadiq, Advocate Supreme Court for Petitioner.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

Salman Aslam Butt, AGP and Sajid Ilyas Bhatti, DAG on Court's Notice.

Jaffar Shah, Director (Law) FIA for FIA.

2015 S C M R 1799

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

CIVIL APPEAL NO. 775 OF 2002

(On appeal from the judgment of the Lahore High Court, Lahore dated 9-2-1999 passed in R.F.A. 37 of 1996)

DEFENCE HOUSING AUTHORITY LAHORE---Appellant

Versus

Messrs BUILDERS AND DEVELOPERS (PVT.) LTD. and another---Respondents

CIVIL PETITION NO. 2428 OF 2010

(On appeal from the judgment of the Lahore High Court, Lahore dated 4-11-2010 passed in C.R. 2908 of 2000)

DEFENCE HOUSING AUTHORITY LAHORE---Petitioner

Versus

PUNJAB CO-OPERATIVE HOUSING SOCIETY LTD., LAHORE---Respondent

Civil Appeal No. 775 of 2002 and Civil Petition No.2428 of 2010, decided on 8th April, 2015.

(a) Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 70---Phrase "touching the business of society"---Scope---Nature of disputes covered by S. 54 of Cooperative Societies Act, 1925, has been specified in clauses (a) to (e) of S. 54 of Cooperative Societies Act, 1925, which all related to disputes regarding internal affairs of a Society in between its members or of members with Society or its committees---Both Ss. 54 & 70 of Cooperative Societies Act, 1925, are limited to disputes regarding 'business of the society'---Said phrase appears in different provisions of the same statute, as a rule it is to be assigned the same meaning---Section 70 of Cooperative Societies Act, 1925, though does not make reference to S. 54 of Cooperative Societies Act, 1925, but without relating to the latter, issuance of notice would be meaningless---Two months wait period provided under S.70 of Cooperative Societies Act, 1925, is to enable the Registrar to resolve the dispute---Only provision in Cooperative Societies Act, 1925, empowering Registrar to resolve disputes in S. 54 of Cooperative Societies Act, 1925---Proviso to S. 54 of Cooperative Societies Act, 1925, provides for suspension of proceedings, if the Registrar is of the opinion that dispute involves complicated questions of law and facts, which can be decided only through a regular suit---Only reasonable construction consistent with the scheme and purpose of Cooperative Societies Act, 1925, would be to limit application of S. 70 of Cooperative Societies Act, 1925, to matters falling under S. 54 of Cooperative Societies Act, 1925.

(b) Cooperative Societies Act (VII of 1925)---

----S. 70--- Notice to Registrar---Scope---Provision of S. 70 of Cooperative Societies Act, 1925, does not apply to all suits instituted against Society or any of its officers, it is restricted to suits in respect of any act 'touching the business of society'.

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

----Ss.42 & 54---Cooperative Societies Act (VII of 1925), Ss. 54 & 70---Suit for declaration and injunction---Dispute between two Cooperative Societies---Touching the business of Society---Grievance of plaintiff was that defendant Society illegally obstructed plaintiff of his right of way and use of public road, though located inside defendant's housing scheme---Validity---Defendant Society was engaged in the business of developing housing schemes and dispute over use of public road between plaintiff and defendant could not be said to be a matter related to the business of Society---From the evidence of witnesses as well as documentary evidence produced, it was found that before the housing schemes of plaintiff and defendants were launched, there was a public path from the road to land now included in plaintiff's housing scheme and road was constructed thereon which was used by both the Societies---During construction work carried out by defendant, the road was damaged and defendant had reassured plaintiff that the road would be reconstructed but after its reconstruction, defendant blocked the same by installation of barbed wires---Such act of defendant infuriated public at large who protested and litigation started---Public path existed which was used by inhabitants of the area before the two Societies started their housing projects---Supreme Court declined to interfere in factual determination as three courts below had rightly maintained the claim of plaintiff---Appeal was dismissed.

Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd. and others PLD 2002 SC 660; 1996 SCMR 1196; Shamsur Rehman v. Nadir Khan 2005 CLC 215; Lahore Cantt. Cooperative Society Limited v. Muhammad Asif 1998 MLD 1850; Muhammad Azim v. P.E.C.H.S. Ltd. PLD 1985 Kar. 481; Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited 1996 MLD 593 and Muhammad Ali Memorial Cooperative Housing Society v. Syed Sibtey Hasan Kazmi PLD 1975 Kar. 428 ref.

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

----S. 273---Notice---Scope---Whole idea of S. 273 of Cantonments Act, 1924, is to make amends to aggrieved plaintiff of the act done by Cantonment Board before the plaintiff files the suit.

M. Maqbool Sadiq, Advocate Supreme Court and Tariq Masood, Advocate Supreme Court for Appellant (in Civil Appeal No. 775 of 2001).

Shahid Hamid, Senior Advocate Supreme Court for Respondent No.1 (in Civil Appeal No. 775 of 2001).

Nemo. for Respondent No.2 (in Civil Appeal No. 775 of 2001).

M. Maqbool Sadiq, Advocate Supreme Court and Tariq Masood, Advocate Supreme Court for Petitioner (in Civil Petition No. 2428 of 2010).

Amir Alam Khan, Advocate Supreme Court and Tallat Farooq, Advocate Supreme Court for Respondent (in Civil Petition No.2428 of 2010).

2015 S C M R 1813

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

PROGRESS REPORT OF NAB IN OGRA CASE: In re

C.M.A. 3325 OF 2013 IN C.R.P. 270/2011 IN CONST. P. 42/2011

(Progress Report of NAB in OGRA Case)

CRL. M.A. 547/2012 IN CRL. M.A. 565/2012 IN CRL. O.P. 63/2012

(Show Cause Notice to Mr. Arshad Ali Chaudhry, AOR in compliance with this Court's order dated 13-9-2012)

C.M.A. No. 3325 of 2013 in C.R.P. 270 of 2011 in Constitutional Petition 42 of 2011 and Criminal M.A. 547 of 2012 in Criminal M.A. 565 of 2012 in Criminal O.P. 63 of 2012, decided on 21st August, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Preamble---Constitution of Pakistan, Arts. 14, 18, 19A, 23, 24, 187 & 190---Supreme Court Rules, 1980, O. XXXII, Rr. 1, 2 & O.XXXIII, R. 1---Civil Procedure Code (V of 1908), O. XXVI, R. 10---Corruption in the country---Functioning of institutions---Local commission, appointment of---National Accountability Bureau was created as a principal watch-dog against corruption in Pakistan---Corruption was itself rightly perceived as eating into the very foundation and vitals of society---Corruption watch-dog which therefore, did not function efficiently, adversely affected the Fundamental Rights under Arts. 14, 18, 19A, 23 & 24 of the Constitution---Supreme Court, in exercise of judicial powers conferred under Arts. 187 & 190 of the Constitution, O. XXII, Rr. 1 & 2 read with O. XXXIII, R. 1 of Supreme Court Rules, 1980 coupled with the principles of Civil Procedure Code, 1908, including its O. XXVI, R. 10, appointed a local commission to examine two reports and directed the local commission to submit its report with regard to whether NAB, FIA, National Highway Police and/or the Punjab Police facilitated the escape of the accused.

Muhammad Yaseen Applicant in person.

Salman Aslam Butt, Attorney General for Pakistan and Ahmed Hosain, Additional AGP on Court's Notice.

Waqas Qadeer Dar, PG, Akbar Tarar, Additional PG and Fauzi Zafar, DPG for NAB.

Ali Akbar Wains, SP (Legal) for Motorway Police.

Kh. Azhar Rasheed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for OGRA.

Arshad Ali Chaudhry, Advocate-on-Record and Tauqir Sadiq for Respondents (in Crl. M.A. 547 of 2012).

2015 S C M R 177

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Reed and Lord Toulson

AIB GROUP (UK) PLC---Appellant

Versus

MARK REDLER & CO. SOLICITORS---Respondent

Decided on 5th November, 2014.

(On appeal from [2013] EWCA Civ 45)

Per Lord Toulson, JSC; Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson and Lord Reed, JJSC agreeing.

(a) Trust, breach of---

----Equitable compensation, measure of---Principles--- Solicitor acting in breach of trust---Borrowers applied to the appellant-bank to borrow £3.3 million to be secured by way of a legal charge/mortgage over the borrowers' property---Property in question was already the subject of a first legal charge/first mortgage in favour of Bank B---Appellant-bank advanced the amount to its solicitors for releasing the same to borrowers on the condition that the then existing first charge with Bank B was to be redeemed on or before release of the amount---Solicitors used the advance to make payment to Bank B believing they had made full payment to redeem the first charge, and released the remaining amount to the borrowers---Solicitors had in fact paid Bank B about £300,000 less than the total balance, because of which Bank B refused to release its first charge---Consequently appellant-bank accepted the primacy of the Bank B's charge and consented to registration of its own charge as a second charge---Borrowers defaulted and the property was repossessed by Bank B and sold, of which the appellant-bank received only £867,697, about £273,777.42 less than it should have done if the solicitors had remitted the correct amount to Bank B to release/redeem the first charge---Appellant-bank issued proceedings against the solicitors seeking to recover the full amount of loan i.e. £3.3 million less £867,697 that it had already recovered---Appellant-bank alleged that the solicitors had acted in breach of trust, breach of fiduciary duty, breach of contract and in negligence---Validity---Solicitors held the money advanced by the appellant-bank on trust for the purpose of performing their contractual obligations---Solicitors broke their contract and acted in breach of trust when they released to the borrowers the money advanced by the appellant-bank, when they should have paid to Bank B the full amount required to redeem the mortgage/charge of Bank B, and should have then released the remaining balance to the borrowers---To say that there had been a loss to the trust fund in the present case of about £2.5m (£3.3 million - £867,697 already received) by reason of the solicitors' conduct, when most of that sum would have been lost if the solicitors had applied the trust fund in the way that the appellant-bank had instructed them to do, was to adopt an artificial and unrealistic view of the facts---Monetary compensation, whether classified as restitutive or reparative, was intended to make good a loss---Basic equitable principle applicable to breach of trust was that the beneficiary was entitled to be compensated for any loss he would not have suffered but for the breach---In the present case, proper performance of the obligations of which the trust formed part would have resulted in the solicitors paying to Bank B the full amount required to redeem the first mortgage/legal charge , and the appellant-bank would have had security for an extra £300,000 of its loan---Appropriate order was for solicitors to pay appellant-bank £273,777.42 plus interest---Per Lord Reed, JSC: Proceeds of sale of mortgaged property were insufficient to meet the borrowers' liabilities to both Bank B and appellant-bank, and in consequence appellant-bank received approximately £273,777.42 less than they would have done if solicitors had fulfilled their instructions--- Argument of appellant-bank that it was entitled to entire £3.3m, less the £867,697.78 which it had already received on the sale of the property, was based on three fallacies, first, it assumed that solicitors misapplied the entire £3.3m, whereas all that was misapplied was the approximate £300,000 which was paid to the borrowers rather than to Bank B; second, that it assumed that the measure of solicitors' liability was fixed as at the date of the breach of trust, and third, that it assumed that liability did not depend on a causal link between the breach of trust and the loss---Solicitors were sought to be made liable for the consequences of the hopeless inadequacy of the security accepted by appellant-bank before solicitors' involvement---Loss to the trust estate as a result of solicitors' breach of trust proved to be £273,777.42; pecuniary value of the difference between a first ranking security and one which was postponed to Bank B---Said loss was also the loss to appellant-bank, which was absolutely entitled to the trust estate---Trust no longer being on foot, the appropriate order was for solicitors to pay appellant-bank £273,777.42 plus interest---Appeal was dismissed accordingly.

Target Holdings Ltd. v. Redferns [1996] AC 421 ref.

(b) Trust, breach of---

----Duties owed under trust---Scope---Breach of duty by trustee---Effect.

Trustee owed a custodial stewardship duty, that was, a duty to preserve the assets of the trust except insofar as the terms of the trust permitted the trustee to do otherwise. Trustee owed a management stewardship duty, that was, a duty to manage the trust property with proper care. Trustee also owed a duty of undivided loyalty, which prohibited the trustee from taking any advantage from his position without the fully informed consent of the beneficiary or beneficiaries.

In case of a breach of the custodial stewardship duty, through the process of an account of administration in common form, the court would disallow (or falsify) the unauthorised disposal and either require the trust fund to be reconstituted in specie or order the trustee to make good the loss in monetary terms. The term "substitutive compensation" was sometimes used to refer to a claim for the value of a trust asset dissipated without authority.

Agricultural Land Management Ltd v. Jacson (No 2) [2014] WASC 102 ref.

In a case of breach of a trustee's management stewardship duty, through the process of an action on the basis of wilful default, a court could similarly falsify or surcharge so as to require the trustee to make good the loss resulting from the breach.

In a case of breach of the duty of undivided loyalty, there were possible alternative remedies. If the trustee had benefited from it, the court will order him to account for it on the application of the beneficiary. Alternatively, the beneficiary may seek compensation in respect of his loss.

Bristol and West Building Society v Mothew [1998] Ch 1 Millett LJ ref.

(c) Trust, breach of---

----Breach of duty by trustee---Beneficiary---Remedy---Scope---Basic right of a beneficiary was to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law---Where there had been a breach of such duty, the basic purpose of any remedy would be either to put the beneficiary in the same position as if the breach had not occurred or to vest in the beneficiary any profit which the trustee may have made by reason of the breach (and which ought therefore properly to be held on behalf of the beneficiary)---Placing the beneficiary in the same position as he would have been in but for the breach may involve restoring the value of something lost by the breach or making good financial damage caused by the breach---Monetary award which reflected neither loss caused nor profit gained by the wrongdoer would be penal.

Per Lord Reed, JSC; agreeing with Lord Toulson, JSC.

(d) Trust, breach of---

----Equitable compensation, measure of---Causation and foreseeability of loss---Principles---Model of equitable compensation, where trust property had been misapplied, was to require the trustee to restore the trust fund to the position it would have been in if the trustee had performed his obligation---Where the trust had come to an end, the trustee could be ordered to compensate the beneficiary directly---Compensation in such a situation was assessed on the same basis, since it was equivalent in substance to a distribution of the trust fund---Where the trust fund had been diminished as a result of some other breach of trust, the same approach ordinarily applied, mutatis mutandis---Measure of compensation should therefore normally be assessed at the date of trial, with the benefit of hindsight---Foreseeability of loss was generally irrelevant, but the loss must be caused by the breach of trust, in the sense that it must flow directly from it---Losses resulting from unreasonable behaviour on the part of the claimant would be adjudged to flow from such behaviour, and not from the breach---Requirement that the loss should flow directly from the breach was also the key to determining whether causation had been interrupted by the acts of third parties.

(e) Trust, breach of---

----Liability of trustee---Scope---"Breach of trust"---"Breach of contract"---"Tortious act"---Distinction---Trustee's liability for breach of trust, even where the trust arose in the context of a commercial transaction which was otherwise regulated by contract, was not generally the same as a liability in damages for tort or breach of contract---Trust imposed different obligations from a contractual or tortious relationship, in the setting of a different kind of relationship---Law responded to such differences by allowing a measure of compensation for breach of trust causing loss to the trust fund which reflected the nature of the obligation breached and the relationship between the parties.

Jeremy Cousins QC, Nicholas Davidson QC, John Brennan (Instructed by Moran and Co, Tamworth) for Appellant.

Graeme McPherson QC, Sian Mirchandani, Nicole Sandells (Instructed by Mills and Reeve LLP) for Respondent.

Date of hearing: 5th June, 2014.

2015 S C M R 663

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed and Lord Hodge

MONTGOMERY---Appellant

versus

LANARKSHIRE HEALTH BOARD---Respondent

Decided on 11th March, 2015.

(On appeal from [2013] CSIH 3 : [2010] CSIH 104)

Per Lord Kerr and Lord Reed, JJSC; Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson and Lord Hodge, JJSC agreeing.

(a) Negligence---

----Duty of care---Doctor-patient relationship---Duty of care owed by a doctor to disclose 'material' risks involved in treatment of a patient---Scope---"Bolam test", concept and applicability of---Entitlement of a patient to know the risks involved in his/her treatment---Non-disclosure of risks by the doctor---Question as to whether a doctor's omission to warn a patient of inherent risks of proposed treatment constituted a breach of the duty of care---Appellant-mother gave birth to a baby, who was born with severe disabilities due to complications during the delivery---Appellant's pregnancy was regarded as high risk as she suffered from diabetes, and women with diabetes were more likely to have large babies and there was a 9-10% risk of shoulder dystocia during vaginal delivery (the baby's shoulders being too wide to pass through the mother's pelvis)---Though such risk may be resolved by emergency procedures during labour, shoulder dystocia posed various health risks to the woman and baby---Appellant was not told by her doctor about the risk of shoulder dystocia during her delivery---Appellant sought damages on behalf of her baby for the injuries which he sustained during birth---Appellant attributed those injuries to negligence on the part of the medical board's doctor, who was responsible for appellant's care during her pregnancy and labour, and who also delivered the baby---Appellant's claim was that she ought to have been given advice about the risk of shoulder dystocia which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section; that the doctor had negligently failed to perform a caesarean section in response to abnormalities indicated by certain tests performed on her---Doctor in her defence contended that despite the risk of shoulder dystocia, her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia, because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small; that in her consideration if such condition was mentioned to expecting women, most women would rather have a caesarean section, which was not in the maternal interests---Courts below had held that in the present case, the doctor did not owe a duty of care to the appellant; that whether a doctor's omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the "Bolam test" (Bolam v Frierm Hospital Management Committee [1957] i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational; that in the present case, the Bolam test was not met; that the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by "simple procedures" and the chance of a severe injury to the baby was "tiny", and that if a patient asked about specific risks, the doctor must answer, but in the present case the appellant did not ask such specific questions---Validity---Under the law of negligence, a doctor was under a duty to take reasonable care to ensure that a patient was aware of material risks of injury that were inherent in a treatment---Such duty could also be understood as a duty of care to avoid exposing a person to a risk of injury which he/she would otherwise have avoided---Patient was entitled to decide as to whether or not to incur such a risk---Adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and his/her consent must be obtained before treatment interfering with his/her bodily integrity was undertaken---Doctor was therefore under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments---Test of materiality was whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should have been reasonably aware that the particular patient would be likely to attach significance to it---Doctor was however entitled to withhold from the patient information as to a risk if he/she reasonably considered that its disclosure would be seriously detrimental to the patient's health, but such "therapeutic exception", could not provide the basis of the general rule and should not be abused---What risks of injury were involved in an operation was a matter falling within the expertise of members of the medical profession, but it was a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient was also a matter of purely professional judgment---Doctor's advisory role could not be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to his/her health which he/she was willing to run (a decision which may be influenced by non-medical considerations)---Responsibility for determining the nature and extent of a person's rights rested with the courts, not with the medical professions---Extent to which a doctor may be inclined to discuss risks with a patient was not determined by medical learning or experience, the application of the Bolam test to such question was liable to result in the sanctioning of differences in practice which were attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients---Doctor must necessarily make a judgment as to how best to explain the risks to the patient, and providing an effective explanation may require skill, but the skill and judgment required were not of the kind with which the Bolam test was concerned---Undoubtedly, in the present case, it was incumbent on the doctor to advise the appellant of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section---Shoulder dystocia was a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health---Risk of shoulder dystocia was substantial on the evidence in the present case, around 9-10%---Exercise of reasonable care undoubtedly required that such risk should have been disclosed---Risk of shoulder dystocia involved in an elective caesarean section (as compared to vaginal delivery), for the mother was extremely small and for the baby virtually non-existent---Doctor, in the present case, could not rely on the "therapeutic exception" to withhold information about the risk---Although it was the doctor's policy in the present case to withhold information about the risk of shoulder dystocia from her patients because they would otherwise request caesarean sections, the "therapeutic exception" was not intended to enable doctors to prevent their patients from taking an informed decision---Had the doctor advised the appellant of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, appellant would probably have elected to deliver her baby by caesarean section, and undisputedly the baby would then have been born unharmed---Appeal was allowed accordingly.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587 and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 distinguished.

Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53; Wyatt v Curtis [2003] EWCA Civ 1779; Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134; Reibl v Hughes [1980] 2 SCR 880 [Supreme Court of Canada] and Rogers v Whitaker (1992) 175 CLR 479 [High Court of Australia] ref.

(b) Negligence---

----Duty of care---Doctor-patient relationship---Risks involved in the treatment of a patient---Duty of care owed by a doctor to disclose risks involved in a treatment---General rule and exceptions---Assessment of risk by the doctor---Scope---Generally understood paradigm of the doctor-patient relationship had ceased to reflect the reality and complexity of the way in which healthcare services were provided (in present times), or the way in which the providers and recipients of such services viewed their relationship---Patients were now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession---Patients were also widely treated as consumers exercising choices---Increasingly it had become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available was of variable quality, reliable sources of information could readily be found), patient support groups, and leaflets issued by healthcare institutions---Labelling of pharmaceutical products and the provision of information sheets was of particular significance because it was required by laws premised on the ability of the citizen to comprehend the information provided, therefore, it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors---Idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalization---Social and legal developments and changes point away from a model of the relationship between the doctor and the patient based upon medical paternalism, and the patient being entirely dependent on information provided by the doctor---Such changes point towards an approach to the law which, treated patients so far as possible as adults who were capable of understanding that medical treatment was uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices---Adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and his/her consent must be obtained before treatment interfering with his/her bodily integrity was undertaken---Doctor was therefore under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments---Test of materiality was whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it---Doctor was however entitled to withhold from the patient information as to a risk if he/she reasonably considered that its disclosure would be seriously detrimental to the patient's health, however such "therapeutic exception", could not provide the basis of the general rule and should not be abused---Doctor was also excused from conferring with the patient in circumstances of necessity, as for example where the patient required treatment urgently but was unconscious or was otherwise unable to make a decision---Patient/person could of course decide that he/she did not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with his/her medicine); and a doctor was not obliged to discuss the risks inherent in treatment with a person who made it clear that he/she would prefer not to discuss the matter---Deciding whether a person was so disinclined may involve the doctor making a judgment; but it was not a judgment which was dependent on medical expertise---Assessment of whether a risk was material could not be reduced to percentages---Significance of a given risk was likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives---Assessment was therefore fact-sensitive, and sensitive also to the characteristics of the patient---Doctor's advisory role involved dialogue, the aim of which was to ensure that the patient understood the seriousness of his/her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that he/she was then in a position to make an informed decision---Such role would only be performed effectively by the doctor if the information provided was comprehensible---Doctor's duty was not therefore fulfilled by bombarding the patient with technical information which he/she could not reasonably be expected to grasp.

Per Lady Hale, Deputy President, JSC; agreeing with Lord Kerr and Lord Reed, JJSC.

(c) Negligence---

----Duty of care---Doctor-patient relationship---Duty of care owed by a doctor to disclose risks involved in treatment of a patient---Mother gave birth to a baby, who was born with severe disabilities due to complications during the delivery---Law of negligence protected a person's interest in their own physical and psychiatric integrity, an important feature of which was their autonomy, their freedom to decide what shall and shall not be done with their body---Any particular medical procedure could not be considered in isolation from its alternatives---Most decisions about medical care were not simple yes/no answers--- Choices were to be made, arguments for and against each of the options were to be considered, and sufficient information must be given (to the patient) so that this could be done---Pregnancy was a particularly powerful illustration for such purposes---Doctors did not necessarily have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child was at heightened risk from a vaginal delivery--- One should not only be concerned about risks to the baby, but equally, if not more, concerned about risks to the mother, which included the risks associated with giving birth, as well as any after-effects---Any patient was entitled to take into account her own values, her own assessment of the comparative merits of choices available to her for birth, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby---Medical profession must respect the patient's choice, unless she lacked the legal capacity to decide---Similarly a patient could not force her doctor to offer treatment which he or she considered futile or inappropriate, but the patient was at least entitled to the information which would enable her to take a proper part in such decision.

St George's Healthcare NHS Trust v S [1999] Fam 26 ref.

James Badenoch QC, Colin J MacAulay QC and Lauren Sutherland (Instructed by Balfour + Manson LLP) for Appellant.

Rory Anderson QC and Neil R Mackenzie (Instructed by NHS National Services Scotland Central Legal Office) for Respondent.

Intervener (General Medical Council) Andrew Smith QC (Instructed by GMC Legal).

Dates of hearing: 22nd and 23rd July, 2014.

2015 S C M R 742

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson and Lord Hodge

BRAGANZA---Appellant

versus

BP SHIPPING LIMITED and another---Respondents

Decided on 18th March, 2015.

(On appeal from: [2013] EWCA Civ 230)

Per Lady Hale (Deputy President), JSC; Lord Hodge & Lord Kerr, JJSC, concurring; Lord Neuberger & Lord Wilson, JJSC, dissenting. [Majority view]

(a) Contract---

----Employment contract---Contract assigning decision-making or fact-finding function to the employer---Decision making/fact-finding process, reasonableness of---Scope and principles---Fact finding based on cogent evidence---"Death during service" benefit---Contractual discretion of employer in determining cause of death of employee---Appellant was the widow of an engineer who disappeared from on board a ship whilst it was in the middle of the sea---Ship was owned by the defendant-company (employer), which had employed the engineer---Following disappearance of the engineer, employer-company set up its own investigation team into the disappearance, to examine whether its systems could be improved---Investigation report identified several factors supportive of suicide and concluded that the most likely scenario was that the engineer had jumped overboard deliberately---Said report was forwarded to the General Manager of the company, who made no further inquiries of his own and on the basis of the report concluded that widow was not entitled to death benefits under the engineer's contract of employment, which provided that compensation would not be payable if "in the opinion of the company or its insurers, the death…resulted from…the officer's wilful act, default or misconduct"---Widow brought a claim in contract against the company for death benefits and damages for negligence---Question arising in the present case was as to what was the proper test for the court to apply when deciding whether the employer-company was entitled to reach the opinion it did after its investigation---Trial Court upheld the contractual claim for death in service benefits by holding that there was not enough "cogent evidence" to justify the finding of suicide in the investigation report or for the General Manager to form the opinion that engineer had committed a "wilful act" for the purposes of the employment contract, and that the real possibility of an accident had not been taken into account---Appellate Court set aside the judgment of Trial court by finding that the company's investigation conclusions were reasonable and the company did not have to approach the matter the way required by the Trial court---Validity---Present case raised two inter-linked questions of principle; firstly, the meaning of the general requirement that the decision of a contractual fact-finder must be a reasonable one, and secondly, the proper approach of a contractual fact-finder who was considering whether a person may have committed suicide---Present case involved an employment contract, and any decision-making function entrusted to the employer had to be exercised in accordance with the implied obligation of trust and confidence---Such obligation had to be borne in mind in considering how the contractual decision-maker should approach the question of whether a person had committed suicide---Employer-company could have also concluded that it was unable to form an opinion as to the cause of death, but instead it made an affirmative finding of suicide, thus, the question was as to how the employer should go about making a positive finding of suicide---Employer had to show that the decision which it reached was a reasonable decision in the sense which was required by the contract---Employer-company had to approach a decision in the same way that any other decision-maker should do---More unlikely something was, the more cogent must be the evidence required to persuade the decision-maker that it had indeed happened---Hence it was not the seriousness of the consequences of a finding of suicide which demanded that there be cogent evidence to support it, but its inherent improbability---Decision that an employee had committed suicide was not a rational or reasonable decision, unless the employer had it clearly in mind that suicide was such an improbability that cogent evidence was required to form the positive opinion that it had taken place---General Manager of the company should not have simply accepted the view of the investigation team that suicide was the most likely explanation for the engineer's disappearance---Investigation team had been conducting its investigation for purposes of considering whether the company's systems could be improved, which purpose was different from the purpose of the General Manager's decision---General Manager's task was quite different and he had to consider whether he was in a position to make a positive finding that the engineer had committed suicide---General Manager should have asked himself whether the evidence was sufficiently cogent to overcome the inherent improbability of a suicide---No positive indications of suicide existed in the present case---No suicide note, no evidence of suicidal thoughts, no evidence of over-whelming personal or financial pressures of the sort which would be likely to lead a mature professional man to take his own life, no evidence of psychiatric problems or a depressive personality were found in the present case---Factors identified by the investigation team which allegedly supported a finding of suicide were at most 'straws in the wind'---Against such straws in the wind was the evidence that the engineer's behaviour had appeared entirely normal just before his disappearance---Evidence also showed the engineer's concern about the weather, which would have constituted a good work-related reason for him to go on deck before disappearing---Engineer was also a Roman Catholic, thus, suicide for him was a mortal sin---Such factors increased the inherent improbability of a suicide and the corresponding need for cogent evidence to support a positive finding to such effect---Investigation team's report and conclusion in the present case could not be regarded as sufficiently cogent evidence to justify the General Manager, and hence the company, in forming the positive opinion that engineer had committed suicide---Although it could not be said that the decision of the General Manager was arbitrary, capricious or perverse, but it was unreasonable in having been formed without taking relevant matters into account---[Per Lord Hodge] Investigation team and General Manager of the employer-company could not rule out the possibility that the engineer had gone on deck for some work related reason and that he had fallen into the sea by accident or through carelessness---Engineer had no history of depression or mental disorder, and there was no evidence that he had spoken to anyone about suicide---Before commencing his last voyage, the engineer had undergone a medical examination and was pronounced physically and psychologically fit---Given the improbability of suicide in the present case, there had to be cogent evidence to overcome such improbability---Duty of trust and confidence in an employment relationship required that where the evidence was exiguous, the employer should ask itself whether there was evidence of sufficient quality to justify the finding of suicide, and when there was no cogent evidence, it should refrain from making a positive finding as to the cause of death---Employer-company did not have to find a cause of death if one was not clear---Sufficient evidence to support a finding of suicide was not available in the present case to outweigh its inherent improbability---Good faith of the investigation team and the General Manager of the company were not in question, nor could it be said that the company acted unfairly in the manner it carried out the task, but the report of the investigation team did not give the General Manager the evidential basis for forming the positive opinion that the engineer had committed suicide---Appeal was allowed accordingly and the widow's claim in contact for death during service benefits succeeded. [Majority view]

(b) Contract---

----Bargaining position and discretion of contracting parties---Imbalance of power---Contract assigning decision-making function to one of the parties---Duty of court to check abuse of contractual powers---Scope---Terms implied into a contract by court---Scope---Contractual terms in which one party to the contract was given the power to exercise a discretion, or to form an opinion as to relevant facts, were extremely common---Courts were not supposed to re-write the parties' bargain for them, still less to substitute themselves for the contractually agreed decision-maker---Nevertheless, the party who was charged with making decisions which affected the rights of both parties to the contract had a clear conflict of interest---Such conflict of interest was heightened where there was a significant imbalance of power between the contracting parties as there often would be in an employment contract---Courts had therefore sought to ensure that such contractual powers were not abused, and they had done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power was given---Obvious parallel existed between cases where a contract assigned a decision-making function to one of the parties and cases where a statute assigned a decision-making function to a public authority---Court was not the primary decision maker in either of the said cases---Primary decision-maker was the contracting party or the public authority---Standard of review/test adopted by the courts to the contractual decisions of a contracting party was similar to that adopted for judicial review of administrative action--- Such test involved two limbs the first limb focused on the decision-making process-whether the right matters had been taken into account in reaching the decision, and the second focused upon its outcome-whether even though the right things had been taken into account, the result was so outrageous that no reasonable decision-maker could have reached it---Court would imply a term that the decision-making process be lawful and rational in the public law sense, that the decision was made rationally (as well as in good faith) and consistently with its contractual purpose, but whatever term may be implied would depend upon the terms and the context of the particular contract involved---Lay body/person could not be expected to have the same standards of expert, professional and almost microscopic investigation of the problems, both factual and legal, that was demanded of a suit in a court of law.

Abu Dhabi National Tanker Co v Product Star Shipping Ltd (The "Product Star") (No. 2) [1993] 1 Lloyd's Rep 397, 404; Paragon Finance plc v Nash [2001] EWCA Civ 1466, [2002] 1 WLR 685; Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyd's Rep IR 221, 239-240; Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] EWCA Civ 1047, [2001] 2 All ER (Comm) 299, at paras 64, 67, 73; Socimer International Bank Ltd v Standard Bank London Ltd [2008] EWCA Civ 116, [2008] Bus LR 1304; Hayes v Willoughby [2013] UKSC 17, [2013] 1 WLR 935, para 14; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410; Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-234; British Telecommunications Plc v Telefonica O2 UK Ltd [2014] UKSC 42, [2014] Bus LR 765, para 37 and The Vainqueur José [1979] 1 Lloyds Rep 557 ref.

Per Lord Hodge, JSC; concurring with Lady Hale (Deputy President), JSC

(c) Contract---

----Contract assigning decision-making function to one of the parties---Duty of court to check abuse of contractual powers---Scope---Court was not entitled to substitute its own view of what was a reasonable decision for that of the person who was charged with making the decision---Court only conducted a rationality review---Was difficult to treat as rational the product of a process of reasoning, if such process was flawed by the taking into consideration of an irrelevant matter or the failure to consider a relevant matter.

Clark v Nomura International Plc [2000] IRLR 766 (para 40) ref.

(d) Contract---

----Employment contract---Contract assigning decision-making or fact-finding function to the employer---Scrutiny by court of employer's decision making/fact-finding process---Scope---Death during service benefit--- Personal relationship which an employer-employee relationship involved may justify a more intense scrutiny of the employer's decision-making process than would be appropriate in some commercial contracts--- Scope for such scrutiny differed according to the nature of the decision which an employer made---For instance the level of scrutiny of an employer's decision making process in case of entitlement of an employee to death benefit would differ from the assessment of whether an employee was entitled to a discretionary bonus---Where the contract gave the employee a prima facie entitlement to the death benefit unless the employer could satisfy itself of a factual circumstance which excluded the benefit, the nature of the exercise which employer had to undertake in deciding the cause of death was very different from the assessment of whether an employee was entitled to a discretionary bonus, which was an exercise that involved a qualitative judgment of the employee's performance---For cases involving the contractual decisions on the grant of performance-related bonuses where there were no specific criteria of performance or established formulae for calculating a bonus, the employee was entitled to a bona fide and rational exercise by the employer of its discretion---Courts were charged with enforcing such entitlement but there was little scope for intensive scrutiny of the decision-making process---However, the courts were in a much better position to review the good faith and rationality of the decision-making process where the issue was whether or not a state of fact existed, such as whether an employee's wilful act caused his death (to disentitle his legal heirs from death during service benefits)---Employer's decision-making in such a case should be subject to scrutiny that was not in any way less intense than which the court applied to the decision of a public authority which was charged with making a finding of fact---Where the employer was a large company, which was in a position to support its officials with legal and other advisory services, it should be able to face such (intense) scrutiny by the court---As employment was a relational contract, an employer may require cogent evidence before it made a finding that had consequences for an employee or his family, including the loss of the death in service benefit.

Clark v Nomura International Plc, Keen v Commerzbank AG and Horkulak v Cantor Fitzgerald International [2005] ICR 402 ref.

Per Lord Neuberger, JSC

(e) Judgment---

----Setting aside of a judgment---Scope---Minor errors---Minor errors in a full and careful judgment did not justify interfering with the same---Holding otherwise would be wrong in principle, and it would serve to encourage unmeritorious appeals and discourage full, considered and informative judgments---Different considerations would however apply where an error of fact might well have affected the outcome (of the case).

(f) Contract---

----Contract assigning decision-making function to one of the parties---Duty of court to check abuse of contractual powers---Scope---When a contract allocated only to one party a power to make decisions under the contract which may have an effect on both parties, the decision-maker's discretion would be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality---Court was concerned with the fact that the discretion should not be abused---Such an approach was similar to the approach adopted by domestic courts to a decision of the executive---Court, however, should bear in mind the fact that when it was considering the decision, it was performing a reviewing function, and not an originating fact-finding function---Court's approach should therefore be similar to that of an appellate court reviewing a trial judge's decision.

Socimer International Bank Ltd v Standard Bank Ltd [2008] EWCA Civ 116, paras 60-66 and Biogen Inc v Medeva PLC [1997] RPC 1, 45 ref.

(g) Administration of justice---

----Judge, duty of---Most fundamental duty of a judge was to apply the law, even if it sometimes led to hard consequences in the circumstances of a particular case.

Per Lord Neuberger JSC dissenting with Lady Hale (Deputy President) JSC [Minority view]

(h) Contract---

----Employment contract---Contract assigning decision-making or fact-finding function to the employer---Decision making/fact-finding process, reasonableness of---Scope---"Death during service" benefit---Contractual discretion of employer in determining cause of death of employee---Appellant was the widow of an engineer who disappeared from on board a ship whilst it was in the middle of the sea---Ship was owned by the defendant-company (employer), which had employed the engineer---Employer-company set up its own investigation team into the disappearance, and the investigation report concluded that the most likely scenario was that the engineer had jumped overboard deliberately and committed suicide---Said report was forwarded to the General Manager of the company, who made no further inquiries of his own and on the basis of the said report concluded that widow was not entitled to death benefits under the engineer's contract of employment, which provided that compensation would not be payable if 'in the opinion of the company or its insurers, the death…resulted from…the officer's wilful act, default or misconduct'---Widow brought a claim in contract against the company for death during service benefits---Question arising in the present case was as to what was the proper test for the court to apply when deciding whether the company was entitled to reach the opinion it did after its investigation---Once it was accepted that the employer-company had to carry out the investigation with "honesty, good faith, and genuineness" and had to avoid "arbitrariness, capriciousness, perversity and irrationality", the implied mutual duty of trust and confidence between an employer and employee would not require more than what in a normal commercial context would be expected, either of the company when carrying out the investigation, or of the court when scrutinising the investigation and its results---Implied mutual duty of trust and confidence in an employer-employee relationship was simply irrelevant for such purposes in the present case---Employer-company appointed a team of experienced people from different disciplines specifically to form a view as to how the engineer had died, the team carried out what appeared to have been a very thorough investigation, and produced a full and meticulous report in which they expressed themselves in moderate and considered terms, and in which they concluded that, while the engineer could have suffered an accident, that was very unlikely, and that the probable cause of his death was suicide---Such conclusion was then carefully reconsidered following a request from the engineer's widow, and a second report was prepared, which had the same conclusions as the first report---When the Chief Manager of the company was instructed by the company to consider the cause of death, it was entirely reasonable for him, to consider the investigation report and adopt its conclusions, and, when the first report was challenged, to readdress the matter and to consider the second report and adopt its conclusions---Once the General Manager was satisfied that the investigation team had conducted a very thorough investigation, and had carefully considered all the evidence and had reached a conclusion with which he considered that he agreed, it would be absurd to hold that he was nonetheless obliged in law to carry out his own separate investigation---Combination of different reasons existed in the present case which could fairly be said to be sufficiently cogent to justify the General Manager's opinion, based on the two investigation reports, that the engineer had taken the unusual and tragic course of committing suicide---Certain e-mails sent by the engineer's wife to him shortly before his disappearance strongly suggested that he was depressed about his financial affairs and that he was oppressed by the vessel's state of repair---Furthermore, he could well have been upset by the withdrawal of his bonus and by the criticism of his work---Probability of the engineer accidently falling overboard was unlikely for a number of reasons, namely that the weather was relatively calm at the time of his disappearance; that the engineer was very safety-conscious, and was unlikely to have gone on deck without warning someone; that he had no reason to go on deck; that the vessel was very well protected, and nobody in the company's fleet had ever fallen overboard from the class of vessel from which the engineer disappeared---On the investigation team's analysis, it was, plainly open to them, and therefore to the General Manager, to conclude that suicide was more likely than an accident---Conclusion reached by the investigation team and the consequential opinion formed by General Manager of the company could not be characterised as arbitrary, capricious, perverse or irrational---Two reports prepared by the investigation team were impressive both in the extent of the investigations on which they were based and the care with which they were compiled, and the conclusion they reached was carefully and rationally explained, and the General Manager could not be criticised for relying on them---Appeal was dismissed accordingly. [Minority view]

Belinda Bucknall QC (Instructed by Duval Vassiliades) for Appellant.

Grahame Aldous QC and Christopher Wilson (Instructed by Hill Dickinson LLP) for Respondents.

Date of hearing: 10th November, 2014.

2015 S C M R 919

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lord Sumption, Lord Carnwath, Lord Toulson and Lord Hodge

STARBUCKS (HK) LIMITED and another---Appellants

versus

BRITISH SKY BROADCASTING GROUP PLC and others---Respondents

Decided on 13th May, 2015.

(On appeal from [2013] EWCA Civ 1465)

Per Lord Neuberger (President), JSC; Lord Sumption, Lord Carnwath, Lord Toulson and Lord Hodge, JJSC, agreeing.

(a) Tort---

----Passing off, action for---Pre-requisites---Three elements to be established by the claimant to succeed in an action for passing off---First, the claimant must establish a goodwill or reputation attached to the goods or services which he supplied in the mind of the purchasing public by association with the identifying 'get-up' (whether it consisted simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services were offered to the public, such that the get-up was recognised by the public as distinctive specifically of the plaintiff's goods or services---Secondly, the claimant must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him were the goods or services of the plaintiff---Question as to whether the public was aware of the plaintiff's identity as the manufacturer or supplier of the goods or services was immaterial, as long as they were identified with a particular source which was in fact the plaintiff/claimant---Thirdly, the claimant must demonstrate that he suffered or that he was likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services was the same as the source of those offered by the plaintiff.

Reckett & Colman Products Ltd. v Borden Inc [1990] 1 WLR 491 ref.

(b) Tort---

----Passing off, action for---Scope and pre-requisites---Trade mark infringement---Goodwill/reputation of a company---Necessary for a company to have business with customers within a jurisdiction to maintain an action for passing off in that jurisdiction---Mere reputation amongst a significant section of the public within a jurisdiction not sufficient to maintain an action for passing off in that jurisdiction---Appellant-companies, based in Hong Kong, were providing a closed circuit Internet Protocol Television (IPTV) service in Hong Kong under the name of "NOW TV", which had become the largest pay TV operator in the country---People in the United Kingdom ("UK") could not receive the said closed circuit service, and no subscribers for it had been recruited in the UK, however, a number of viewers permanently or temporarily resident in the UK were aware of the "NOW TV" service through exposure to it when residing in or visiting Hong Kong, or from viewing "NOW TV" programmes on YouTube and other websites in the UK---Appellant-companies launched a software application for "NOW TV" service in the UK in June 2012---Meanwhile, in March 2012, the respondent-companies announced that they intended to launch a new IPTV service in the UK under the name "NOW TV", and the same was launched in beta form in July 2012---Appellant-companies began proceedings seeking to prevent respondent-companies from using the name "NOW TV" in the UK on the grounds that the use of said name amounted to "passing off"---At first instance, the judge dismissed the claim of appellant-companies by finding that although a substantial number of people permanently or temporarily resident in the UK were acquainted with the "NOW TV" service offered by appellant-companies from Hong Kong, and said service had acquired a modest reputation amongst a certain community in the UK, however, the viewers of appellant-companies' programmes in the UK were not "customers" for its service; that appellant-companies had no goodwill in the UK, and that for the purposes of passing off, reputation alone was not enough, if the company had no goodwill in the UK---Appeal filed by appellant-companies before the Court of Appeal was also dismissed---Validity---When considering whether to give protection to a claimant seeking relief for passing off, the court must be satisfied that the claimant's business had goodwill within its jurisdiction---For an action for passing off (in the UK) , it was necessary for the claimant to have goodwill, in the sense of a customer base, in the jurisdiction (of UK)---Claimant who sought passing off relief in an (English) court must show that he had goodwill, in the form of customers, in the jurisdiction of the court---Claimant in a passing off claim must establish that it had actual goodwill in the jurisdiction (of UK), and that such goodwill involved the presence of clients or customers in the jurisdiction (of UK) for the products or services in question---Where the claimant's business was abroad, people who were in the jurisdiction (of UK), but who were not customers of the claimant (in the jurisdiction of UK), would not suffice, even if they were customers of the claimant when they went abroad--- For an action for passing off mere reputation was not enough---Claimant must show that it had a significant goodwill, in the form of customers, in the jurisdiction (of UK), but it was not necessary that the claimant actually had an establishment or office (in the UK)---To establish goodwill, the claimant must have customers within the jurisdiction (of UK), as opposed to people in the (UK) jurisdiction who happened to be customers elsewhere---Where the claimant's business was carried on abroad, it was not enough for a claimant to show that there were people in (UK) jurisdiction who happened to be its customers when they were abroad---However, it could be enough if the claimant could show that there were people in (UK) jurisdiction who, by booking with, or purchasing from, an entity (in the UK), obtained the right to receive the claimant's service abroad---In such a case, the entity need not be a part or branch of the claimant: it could be someone acting for or on behalf of the claimant---If it was enough for a claimant merely to establish reputation within the jurisdiction (of UK) to maintain a passing off action, it would tip the balance too much in favour of protection of a trader---Doing so would mean that, without having any business or any consumers for its product or service in the jurisdiction (of UK), a claimant could prevent another person using a mark, such as an ordinary English word, "now", for a potentially indefinite period in relation to a similar product or service---Claimant who had simply obtained a reputation for its mark in the jurisdiction (of UK) in respect of his products or services outside such jurisdiction had not done enough to justify granting him an effective monopoly in respect of that mark within the jurisdiction (of UK)---Allowing appellant-companies' action for passing off in the present case would mean that a claimant could shut off the use of a mark in the jurisdiction (of UK) even though it had no customers or business (in the UK), and had not spent any time or money in developing a market (in the UK) - and did not even intend to do so---Business of appellant-companies was based in Hong Kong, and it had no customers, and therefore no goodwill, in the UK---Although there were a significant number of people who were, temporarily or in the longer term, members of a certain community in the UK, with whom the mark "NOW TV" was associated with appellant-companies' service, but in so far as they were customers of appellant-companies, they were customers in Hong Kong, and not in the UK, because it was only in Hong Kong that they could enjoy the service in question, and the service was not marketed, sold or offered in the UK---People in the UK who got access to appellant-companies' NOW TV programmes via the websites, or on various international airlines, were not customers of appellant-companies at any rate in the UK, because there was no payment involved (either directly by the people concerned or indirectly through third party advertising), and the availability of appellant-companies' product in such outlets simply was intended to, and did, promote its Hong Kong business---Basically, it simply amounted to advertising in the UK, and, a reputation acquired through advertising was not enough to found a claim in passing off---Appeal was dismissed accordingly.

Anheuser-Busch Inc v. Budejovicky Budvar NP [1984] FSR 413, 462; AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273, 284; T Oertli AG v EJ Bowman (London) Ltd [1959] RPC 1; Star Industrial Co Ltd v. Yap Kwee Kor [1976] FSR 256, 269; Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731, 752; La Societe Anonyme des Anciens Etablissements Panhard et Levassor v Panhard Levassor Motor Company Ltd [1901] 2 Ch 513; Alain Bernardin et Cie v Pavilion Properties Ltd [1967] RPC 581; Amway Corporation v Eurway International Ltd [1974] RPC 82; Athlete's Foot Marketing Associates Inc v Cobra Sports Ltd [1980] RPC 343; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 106 ALR 465; Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175(A); In re Ping An Securities Ltd (2009) 12 HKCFAR 808, para 17 and Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide Inc [2013] SGCA 65, [2014] 1 SLR 911 ref.

C&A Modes v C&A (Waterford) Ltd [1978] FSR 126; Orkin Exterminating Co Inc v. Pestco Co of Canada Ltd (1985) 19 DLR (4th) 90 and Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 TCLR 91 distinguished.

(c) Tort---

----Passing off, action for---Scope---Public interest---Protection of claimant's trademark or goodwill---Balance between public interest and protection of claimant---Balancing exercise underlying the law of passing off was a compromise between two conflicting objectives, on the one hand the public interest in free competition, on the other the protection of a trader against unfair competition by others---To succeed in an action for passing off, it was not enough for a claimant to establish (mere) copying---All developments, whether in the commercial, artistic, professional or scientific fields, were made on the back of other people's ideas: copying may often be an essential step to progress---Hence, there had to be some balance achieved between the public interest in not unduly hindering competition and encouraging development, on the one hand, and on the other, the public interest in encouraging, by rewarding through a monopoly, originality, effort and expenditure.

(d) Tort---

----Passing off, action for--- Scope--- Reputation through advertisement---Reputation acquired (in a jurisdiction) through advertising was not enough to found a claim in passing off (in that jurisdiction).

Michael Silverleaf QC and Kathryn Pickard (instructed by Dechert LLP) for Appellants.

Geoffrey Hobbs QC, Iain Purvis QC and Guy Hollingworth (instructed by King and Wood Mallesons LLP) for Respondents.

Dates of hearing: 25th and 26th March, 2015.

2015 S C M R 959

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lort Kerr, Lord Clarke, Lord Reed and Lord Hodge

CARLYLE---Appellant

versus

ROYAL BANK OF SCOTLAND PLc (Scotland)---Respondent

Decided on 11th March, 2015.

(On appeal from [2013] CSIH 75)

Per Lord Hodge, JSC; Lord Neuberger (President), Lord Kerr, Lord Clarke and Lord Reed, JJSC, agreeing.

(a) Appeal---

----Appellate court, powers of---Findings of fact recorded by Trial Court/judge, reversal of---Scope---When a matter was raised on appeal, the (Appellate) court must have regard to the limited power of an appellate court to reverse the findings of fact of the judge who had heard the evidence---Appellate court needed to defer to the findings of fact of the first instance judge unless satisfied that the judge was "plainly wrong"---When deciding that a judge at first instance who had heard the evidence had gone "plainly wrong", the Appeal court must be satisfied that the judge could not reasonably have reached the decision under appeal---Rationale of the legal requirement of appellate restraint on issues of fact was not just the advantages which the first instance judge had in assessing the credibility of witnesses, but also the fact that it was the first instance judge who was assigned the task of determining the facts, not the appeal court---Re-opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy---Likelihood was that the judge who had heard the evidence over an extended period would have a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence.

Thomas v Thomas 1947 SC (HL) 45; McGraddie v McGraddie 2014 SC (UKSC) 12; Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203; [2014] 1 WLR 2600; Beacon Insurance Company Limited v Maharaj Bookstore Ltd [2014] UKPC 21; Yuill v. Yuill [1945] P 15 (at p 19); In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; Anderson v City of Bessemer 470 US 564 (1985), pp 574-575 and Housen v Nikolaisen 2002 SCC 33, para 14 ref.

(b) Contract---

----Promise---Legally binding promise---Intention of parties---Provision and purpose of a loan---Appellant-property developer applied to respondent-bank for a loan in order to purchase a plot of land for development---Property developer had to complete the construction of a new house on the plot by a specified date and the purchase of plot was subject to a buy-back clause allowing the seller to re-purchase the plot if such construction was not completed on time---Property developer met with the bank in March 2007 to discuss the loan and made it clear that he would be borrowing the money to build the house as well as to purchase the plot, also drawing attention to the buy-back clause---Property developer also reiterated such point in telephone calls with the bank and made it clear that the bank should not lend him the purchase money unless it was also committed to provide him with development funding---In June 2007 the bank's representative told the property developer that his proposal was "all approved" and accordingly funds were lent to him---Property developer accordingly paid a deposit to the seller to secure the purchase of the plot---In August 2008, the bank told the property developer that it would not provide money for the construction element of the project and called in the loan---Bank raised an action against the property developer for the amount lent plus interest---Property developer defended the action and brought a counter-claim for his loss of profit on the development by contending that he had sought and obtained an unequivocal commitment from the bank to fund not only the purchase of the plot but also its development; that having received such commitment, he entered into missives to purchase the plot but the bank, in breach of its promise, refused to fund its development---Trial Judge found that the telephone conversation between the parties in June 2007, set in the context of the previous discussions, represented a commitment by the bank both to advance the purchase price and to provide a facility for the build cost---Appellate Court reversed findings of Trial Judge by finding that bank had simply informed the property developer over the phone of an internal decision to approve funding in principle; that the bank was not under any legal obligation until there was a written loan agreement, and that the alleged promise was legally ineffective because essential terms, including maximum draw down, interest rates, time of draw down, method and time of repayment, and securities, had not been agreed---Validity---Central issue in the present case, was whether, on an objective assessment of what the parties said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the purchase of plot but also the construction of a house thereon---Property developer's proposal to enter into a contract to purchase the plot and, because of the buy-back clause, his clearly expressed unwillingness to do so unless the bank provided development funding as well as purchase funding formed important elements of the factual context of the present case for assessing the legal nature of the bank's correspondence with the property developer---Statement by a representative of the bank that the bank would provide the development funding induced the property developer both to contract to purchase the plot and enter into the loan agreements which funded that purchase---Fact that parties envisaged or agreed that their agreement would be set out in a formal contract did not by itself prevent their agreement from having legal effect until then---Trial Judge had a reasonable evidential basis for finding that on an objective analysis the bank made a legally binding promise to fund the development of plot in its telephone call in June 2007---Trial Judge was entitled to conclude that property developer sought and obtained from the bank a legally binding commitment to provide funding for the purchase and the development in order to enable him to commit himself to pay the deposit and buy the plot---Once the Trial Judge was satisfied that the bank had the intention to make a legally binding promise, he was entitled and indeed required to look for ways to give effect to such promise---Shared knowledge of both parties in the present case that the commitment would eventually be superseded by more detailed loan agreements in relation to the purchase price and then in relation to the development of the site did not prevent the earlier commitment from having effect as a legally binding promise---Valid contract of loan could be formed without an express statement of the (essential) elements which the Appellate Court had listed, i.e. maximum draw down, interest rates, time of draw down, method and time of repayment, and securities---Although both parties had entered into a loan transaction in the past, which was conducted differently than the present loan transaction, but the former transaction was not relevant for present purposes as it did not contain a buy-back clause---Although the obligation to provide development funding in the present case was relatively of an ill-defined nature, and it would have been possible to frame a decree of specific implement to require the bank to make available such funding, but both parties had proceeded on the basis that property developer would need up to £700,000 for the development of plot---Both parties knew the rates of interest applied to other loans, and were also aware of the known time constraints on the development of the plot and the fixing of a reasonable period for the completion and sale of the house---Terms of the loan, thus, was not likely to be a real issue in the present case---Appeal was allowed accordingly and case was remitted to a commercial judge to proceed accordingly.

Stobo Limited v Morrisons (Gowns) Limited 1949 SC 184 ref.

(c) Contract---

----Collateral contract---Consideration---For a collateral contract, the doctrine of consideration required the recipient of the representation or promise to give consideration by entering into the envisaged other (separate) contract in order to make the representation or promise a binding contractual obligation.

Dick Bentley Productions Limited v Harold Smith (Motors) Limited [1965] 1 WLR 623 and J Evans & Son (Portsmouth) Limited v Andrea Merzario Limited [1976] 1 WLR 1078 ref.

Roddy Dunlop QC and Alasdair N McKenzie (instructed by MBM Commercial LLP) for Appellant.

Richard Keen QC and Alastair Duncan QC (instructed by Brodies LLP) for Respondent.

Date of hearing: 20th November, 2014.

2015 S C M R 1097

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson and Lord Toulson

JAMES RHODES---Appellant

versus

OPO (BY HIS LITIGATION FRIEND BHM) and another---Respondents

Decided on 20th May, 2015.

(On appeal from [2014] EWCA Civ 1277)

Per Lady Hale (Deputy President) and Lord Toulson, JJSC; Lord Neuberger (President), Lord Clarke and Lord Wilson, JJSC, agreeing.

(a) Tort---

----Intentionally causing psychological harm---Essential elements---Tort of intentionally causing psychological harm as recognized in the case of Wilkinson v Downton [1897] 2 QB 57, contained three elements: "conduct element", "mental element" and "consequence element"---'Conduct element' required words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof was on the claimant---For the 'mental element', the necessary intention of causing psychological harm must be inferred from the facts in the particular case--- Intention need not be actually to cause the psychological illness which resulted (although such an illness was a necessary component of the tort under the consequence element), it was sufficient that the defendant intended to cause severe distress---Recklessness as to causing severe distress would not be sufficient to constitute the tort, an actual intention to cause severe distress was required---'Consequence element' required for constituting the tort was recognised psychiatric illness or physical harm.

(b) Tort---

----Intentionally causing psychological harm [recognized in the case of Wilkinson v Downton [1897] 2 QB 57--- Scope--- Freedom of speech/expression---Freedom to convey true information to the public---Scope---Publication of a book containing true information about the abuse and assault suffered by the author as a child---Injunction to prevent publication of such book on the ground that it might cause psychological harm to the author's minor son---Legality---Appellant, who was a famous pianist, author and filmmaker, had written a book which included vivid autobiographical accounts of the sexual abuse and assault he experienced as a child and his resulting depression, self-harm and suicide attempts, and the way in which music helped him to deal with the trauma---Appellant's ex-wife sought an injunction prohibiting publication of a large number of passages from the book arguing that they would have too distressing an impact on their 12-years-old son, who already suffered from various mental disorders---Appellant's ex-wife also adduced expert evidence from a child psychologist whose opinion was that the son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book---Court of Appeal granted the interim injunction restraining the appellant-father from publishing certain information relating to graphic accounts of sexual abuse he suffered as a child, on the basis that publication of such information might constitute the tort of intentionally inflicting mental suffering on his son---Validity---Material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of graphic language used to communicate it---Tort of intentionally causing psychological harm recognized in the case of Wilkinson v Downton [1897] 2 QB 57, contained three elements: a "conduct element", a "mental element" and a "consequence element"---Present case turned on the first and second elements, it being accepted that the consequence element required for liability was recognised psychiatric illness or physical harm---Conduct element required words or conduct directed towards the claimant for which there was no justification or reasonable excuse---Book sought to be published by the appellant in the present case was for a wide audience and the question of justification had to be considered accordingly, and not in relation to the son in isolation---Although the book was dedicated to the son, but that did not mean that the son was intended to read it, at least not at present stage of his life---To consider the justification for the publication only by reference to the son excluded consideration of the wider question of justification based on the legitimate interest of the appellant in telling his story to the world at large in the way in which he wished to tell it, and the corresponding interest of the public in hearing his story---When such factors were taken into account, as they must be, the only proper conclusion was that there was every justification for the publication---Person who had suffered in the way that the appellant had suffered, and had struggled to cope with the consequences of his suffering in the way that he had struggled, had the right to tell the world about it---Corresponding public interest also existed in others being able to listen to the appellant's life story in all its searing detail---Of course vulnerable children needed to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so was not to expand the principles laid down in Wilkinson v Downton [1897] 2 QB 57, to ban the publication of a work of general interest---Injunction granted by Court of Appeal permitted publication of the book only in a bowdlerised version---Such an injunction presented problems as a matter of principle as the book's revelation of what it meant to the appellant to undergo his experience of abuse as a child, and how it had continued to affect him throughout his life, was communicated through the brutal language which he used in the book---Appellant's writing contained dark descriptions of his emotions, self-hatred and rage, and the reader gained an insight into his pain and his resilience and achievements---To lighten the darkness (of appellant's story) would reduce its effect---Court of Appeal should not have taken an editorial control over the manner in which the appellant's story was expressed---Injunction granted by the Court of Appeal, prohibiting publication of 'graphic language' used in the appellant's book, was wrong in principle and in form; it was insufficiently clear what "graphic" meant and, in any event, a right to convey information to the public included a right to choose the language in which it was expressed in order to convey the information most effectively---Regarding the 'mental element' for the tort of intentionally causing psychological harm, the Court of Appeal simply imputed on the author (appellant) as a matter of law the necessary intention to cause harm---Such imputation of an intention by operation of a rule of law was out of date and had no proper role in the modern law of tort---Recklessness as to causing psychological harm would not be sufficient to constitute the tort, an actual intention to cause severe distress was required---Intention need not be actually to cause the psychological illness which resulted, it was sufficient that the defendant intended to cause severe distress--- No basis existed in the present case for supposing that the appellant had an actual intention to cause psychiatric harm or severe mental or emotional distress to his son---'Conduct element' and 'mental element' required to constitute the tort of intentionally causing psychological harm were not established in the present case---[Per Lord Neuberger (President), JSC]: Although the appellant's son was psychologically vulnerable, but once it was established that there was no duty of care owed by the appellant-father to the son, the contents of the book simply had nothing to do with the son, at least from a legal perspective---Dedication of the book to the son was of no legal significance---While many would regard the appellant's book to be in the public interest, it was not necessary to decide the present case on such ground---Unless it was necessary to do so, a judge should not be enthusiastic about deciding whether a book, or any other work, should be published by reference to his (judge's) assessment of the importance of the publication to the public or even to the writer---In the present case, it would not have made any difference if the experiences which the appellant described could be shown to have been invented, or if the book had been written as a novel by someone who had not been sexually abused---Contents of the appellant's book were not untrue, threatening or insulting, they were not gratuitous or unjustified, let alone outrageous, they were not directed at his son, and they were not intended to distress his son---Supreme Court (UK) re-defined the proper scope of the tort of intentionally causing psychological harm, recognized in the case of Wilkinson v Downton [1897] 2 QB 57 and accordingly set aside the interim injunction granted by the Court of Appeal against publication of certain 'graphic accounts' in the appellant's book---Appeal was allowed accordingly.

Wilkinson v Downton [1897] 2 QB 57 ref.

(c) Tort---

----Wilful infringement of another's right to personal safety---Freedom of speech---Freedom to report the truth---Scope---Freedom to report the truth was a basic right to which the law gave a very high level of protection---Was difficult to envisage any circumstances in which speech which was not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another's right to personal safety---Right to report the truth was justification in itself; that is not to say that the right of disclosure was absolute, for a person may owe a duty to treat information as private or confidential, but there was no general law prohibiting the publication of facts which would cause distress to another, even if that was the person's intention.

Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42 ref.

(d) Fundamental Rights---

----Freedom of speech---Right to convey information to the public---Scope---Language of expression---Right to convey information to the public carried with it a right to choose the language in which it was expressed in order to convey the information most effectively.

Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, para 59; In re: Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697, para 63 ref.

(e) Injunction---

----Language and terms of an interlocutory injunction---Clarity and certainty---Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person was or was not allowed to do.

Attorney General v Punch Ltd [2002] UKHL 50, [2003] 1 AC 1046, para 35 ref.

(f) Words and phrases---

----"Recklessness"---Meaning.

R v G [2003] UKHL 50, [2004] 1 AC 1034 ref.

Per Lord Neuberger (President), JSC; concurring with Lady Hale (Deputy President) and Lord Toulson, JJSC.

(g) Fundamental Rights---

----Freedom of speech---Scope---Free speech included not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it did not tend to provoke violence.

Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20 ref.

(h) Fundamental Rights---

----Freedom of expression---Language of expression---Freedom of expression extended not merely to what was said but also to how it was said---Whether a communication was made orally or in writing, the manner or style in which it was expressed could have a very substantial effect on what was actually conveyed to the listener or reader.

(i) Tort---

----Mental distress--- Statement causing mental distress to the claimant---Cause of action---Factors listed which were relevant for deciding when a statement which caused a claimant distress should be actionable.

Factors to be borne in mind in order to decide when a statement which caused a claimant distress, should be capable of founding a cause of action;

(i) First, there must be circumstances in which such a cause of action (tort) should exist;

(ii) secondly, given the importance of freedom of expression, which included the need to avoid constraining ordinary (even much offensive) discourse, it was vital that the boundaries of the cause of action were relatively narrow;

(iii) thirdly, because of the importance of legal certainty, particularly in the area of what people could say, the tort should be defined as clearly as possible.

(iv) fourthly, in the light of the almost literally infinite permutations of possible human interactions, it was realistic to proceed on the basis that it may well be that no set of parameters could be devised which would cater for absolutely every possibility, and

(v) fifthly, given all these factors, there will almost inevitably be aspects of the parameters on which it would be wrong to express a concluded view, and to let the law develop on a case by case basis.

(j) Tort---

----Intentionally causing psychological harm [recognized in the case of Wilkinson v Downton [1897] 2 QB 57---Scope and principles---Tort of intentionally causing psychological harm should not interfere with the give-and-take of ordinary human discourse (including unpleasant, heated arguments, whether in domestic, social, business or other contexts, sometimes involving the trading of insults or threats), or with normal, including trenchant, journalism and other writing---Any unprompted statement made simply because the defendant wanted to say it or because he was inspired by malice, or something very close to malice, may be different from the same statement made in the course of a heated argument, especially if provoked by a series of wounding statements by the defendant---Similarly, it would be wrong for tort of intentionally causing psychological harm to be invoked to justify relief against a polemic op-ed newspaper article or a strongly worded and antipathetic biography, save in the most unusual circumstances---Tort of intentionally causing psychological harm should not somehow be used to extend or supplement the law of defamation.

(k) Tort---

----Intentionally causing psychological harm [recognized in the case of Wilkinson v Downton [1897] 2 QB 57---Essential elements---Intention to cause distress---Degree of distress---Statement to be directed at claimant---Scope---Requirement of intention on part of the defendant to cause distress to the claimant was essential---Fact that a statement was intended to be a joke was not inconsistent with the notion that it was intended to upset---Very purpose of a so-called joke might be to cause significant distress---Consequences or potential consequences of certain statements (and indeed actions) might be so obvious that the perpetrator could not realistically say that those consequences were unintended---For the tort of intentionally causing psychological harm mere recklessness on part of defendant was not enough---Causing distress to the claimant had to be the primary purpose of the defendant, but it need not be the sole purpose---In relation to tort of intentionally causing psychological harm, liability for distressing statements, where intent to cause distress was an essential ingredient, it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant's statement---Degree of distress which was actually intended must be significant, and not trivial, and it could amount to feelings such as despair, misery, terror, fear or even serious worry, but it plainly did not have to amount to a recognised psychiatric disease---Statement made by defendant must be directed at the claimant in order to be tortious.

Hugh Tomlinson QC, Sara Mansoori and Edward Craven (Instructed by Bindmans LLP) for Appellant.

Matthew Nicklin QC and Adam Speker (Instructed by Aslan Charles Kousetta LLP) for Respondent (OPO).

Antony White QC and Jacob Dean (Instructed by Simons Muirhead and Burton Solicitors) for Respondent (Canongate Books Ltd.).

Adrienne Page QC and Can Yeginsu (Instructed by Olswang LLP) Interveners (English PEN, Article 19 and Index on Censorship - Written Submissions Only).

Dates of hearing: 19th and 20th January, 2015.

2015 S C M R 1154

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION---Petitioner

versus

ABERCROMBIE AND FITCH STORES, INC.---Respondents

Decided on 1st June, 2015.

(On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit No.14-86)

Per Antonin Scalia, JSC;John G. Roberts, CJ, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, JJSC, agreeing; Samuel Anthony Alito, JSC, concurring but with his own reasoning; Clarence Thomas, JSC, dissenting.

(a) Employment---

----Discrimination---Religious discrimination in hiring---Scope and proof---Religious practice of applicant/employee---Prohibition on a prospective employer from refusing to hire an applicant because of the applicant's religious practice when such practice could be accommodated by employer without undue hardship---Company in question, which operated several lines of clothing stores, refused to hire a Muslim woman (applicant) because she wore a head scarf pursuant to her religious obligations---Company claimed that the scarf clashed with its "Look Policy" for employees and was not consistent with the image that the company sought to project for each of its stores---Company maintained that an applicant could not show disparate treatment (intentional discrimination) without first showing that an employer had "actual knowledge" of the applicant's need for an accommodation---Appellate Court found that ordinarily an employer could not be liable for failing to accommodate a religious practice until the applicant (or employee) provided the employer with actual knowledge of his need for an accommodation; that there was no discrimination, in the present case as the applicant never informed the company before its hiring the decision that she wore her head scarf for religious reasons---Validity---Employer may not make an applicant's religious practice, a factor in employment decisions---Religious practice was one of the protected characteristics that could not be accorded disparate treatment and must be accommodated---To prove disparate treatment (intentional discrimination) an applicant had to show that the employer failed to hire him/her because of such individual's religion (which included religious practices)---For a claim under disparate treatment (intentional discrimination), the applicant need only show that his/her need for an accommodation was a motivating factor in the employer's decision (not to hire him/her)---Applicant did not need to show that the employer had knowledge of his/her need---Employer who acted with the motive of avoiding accommodation may be liable for disparate treatment (intentional discrimination) even if he had no more than an unsubstantiated suspicion that accommodation would be needed---Applicant, in the present case, was not required to make a specific request for a religious accommodation to wear a head scarf when applying for a position at the company---Disparate-treatment (intentional discrimination) claims were not limited to only those employer's policies that treated religious practices less favorably than similar secular practices---Company's argument, in the present case, that a neutral policy (for all employees) could not constitute "intentional discrimination" did not make sense in context of the present case---Law on disparate treatment (intentional discrimination) did not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices---Rather, it gave religious practices favoured treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual because of such individual's religious observance and practice---Employer was surely entitled to have, for example, a noheadwear policy as an ordinary matter, but when an applicant required an accommodation as an 'aspect of religious practice' it was no response that the subsequent failure to hire was due to an otherwise-neutral policy---Law on disparate treatment (intentional discrimination) required otherwise-neutral policies to give way to the need for an accommodation---[Per Samuel Anthony Alito]---Employer could not be held liable for taking an adverse action because of an employee's religious practice unless the employer 'knew' that the employee engaged in the practice for a religious reason---Employer could be held liable only if the knowledge requirement was fulfilled---Employer may not take an adverse action (against an applicant or employee) because of a religious practice that the employer 'knew' to be religious---Sufficient evidence was available in the present case to support a finding that the company's decision makers 'knew' that applicant was a Muslim and that she wore the headscarf for a religious reason---Company, in the present case, rejected the applicant because of a practice that the company 'knew' to be religious---Applicant was, however, never asked why she wore the headscarf and did not volunteer such information---Nor was she told that she would be prohibited from wearing the headscarf on the job---Supreme Court remanded the present case to the Appellate Court below for further consideration consistent with the present opinion (judgment)---Order accordingly.

Title VII of the Civil Rights Act of 1964 78 Stat. 253 (USA) ref.

Per Samuel Anthony Alito, JSC; concurring with Antonin Scalia, JSC, but with his own reasoning.

(b) Employment---

----Discrimination---Religious discrimination in hiring or during employment---Scope---Religious practice of applicant/employee---Employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual's religious observance or practice unless the employer demonstrated that it was unable to reasonably accommodate that observance or practice without undue hardship.

Title VII of the Civil Rights Act of 1964 78 Stat. 253 (USA) ref.

(c) Employment---

----Discrimination---Religious discrimination in hiring or during employment---Religious practice of applicant/employee---Prohibition on an employer from refusing to hire an applicant or continue hiring an employee because of his/her religious practice "unless" employer was unable to reasonably accommodate such religious practice without undue hardship---Defence available to employer---Burden of proof---When an employer choose to assert the defense that it was unable to reasonably accommodate a religious practice of an applicant/employee without undue hardship, the employer bore both the burden of production and the burden of persuasion---Thus, an applicant/employee need not plead or prove that the employer wished to avoid making an accommodation or could have done so without undue hardship---Where an applicant/employee showed that the employer took an adverse employment action because of a religious observance or practice, it was then up to the employer to plead and prove the defense.

Title VII of the Civil Rights Act of 1964 78 Stat. 253 (USA) ref.

Per Clarence Thomas, JSC; dissenting with majority opinion delivered by Antonin Scalia, JSC [Minority view]

(d) Employment---

----Discrimination---Religious discrimination in hiring---Scope---Neutral hiring policy---Prohibition on a prospective employer from refusing to hire an applicant because of the applicant's religious practice when such practice could be accommodated by the employer without undue hardship---Company in question refused to hire a Muslim woman (applicant) because she wore a head scarf pursuant to her religious obligations---Company claimed that the scarf clashed with its neutral "Look Policy" for all employees and was not consistent with the image that the company sought to project for each if its store---Validity---Mere application of a neutral policy could not constitute "intentional discrimination"---Refusal to accommodate would constitute intentional discrimination, if the employer declined to accommodate a particular religious practice of an employee or applicant, yet accommodated a similar secular (or other denominational) practice---Such circumstances may be proof that the employer had treated a particular person less favorably than others because of a religious practice---Merely refusing to create an exception to a neutral policy for a religious practice could not be described as treating a particular applicant "less favorably than others"---Equal treatment was not disparate treatment (intentional discrimination)---Company, in the present case, refused to create an exception to its neutral 'Look Policy' for the applicant's religious practice of wearing a headscarf --- In doing so, the company did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices---Although the effects of the company's neutral Look Policy, absent an accommodation, fell more harshly on those who wore headscarves as an aspect of their faith, but that was a classic case of an alleged disparate impact and not intentional discrimination---Applicant, in the present case, received the same treatment from the company as any other applicant who appeared unable to comply with the company's Look Policy---Company's conduct, thus, did not constitute "intentional discrimination" - Company's application of its neutral 'LookPolicy' for its employees did not meet the description of intentional discrimination--- Order accordingly. [Minority view]

Title VII of the Civil Rights Act of 1964 78 Stat. 253 (USA); Ricci v. DeStefano, 557 U. S. (2009) at 577 and Dixon v. Hallmark Cos., 627 F. 3d 849, 853 (CA11 2010) ref.

(e) Discrimination---

----Employment---"Intentional discrimination"---Meaning---Intentional discrimination occurred where an employer had treated a particular person less favorably than others because of a protected trait.

Title VII of the Civil Rights Act of 1964 78 Stat. 253 (USA) and Ricci v. DeStefano, 557 U. S. 557, 577 (2009) ref.

(f) Discrimination---

----Religious discrimination---Scope and proof.

Date of hearing: 25th February, 2015.

2015 S C M R 1192

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

ANTHONY DOUGLAS ELONIS---Petitioner

versus

UNITED STATES---Respondent

Decided on 1st June, 2015.

(On Writ of Certiorari to the United States Court of Appeals for the Third Circuit No.13-983)

Per John G. Roberts, CJ; Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, JJSC, agreeing; Samuel Anthony Alito, JSC, concurring/dissenting in part; Clarence Thomas, JSC, dissenting. [Majority opinion]

(a) Mens rea---

----Free speech, protection of---Social media---Communication of a threat over social media, conviction for---Mens rea/intention---Scope---Recklessness in making a threatening statement---Question as to "whether a statement posted on social media counted as a threat or not"---Accused's subjective intent to threaten relevant for such purposes and not how a reasonable person understood such statement--- Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers---Some of these posts contained disclaimers or indications that they were fictitious and not intended to depict real persons, and that with such statements the accused was exercising his constitutional right of freedom of speech---Trial Court convicted the accused for transmitting 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)], and held that for conviction it only needed to be proved that the accused "intentionally made the communication, not that he intended to make a threat"; that it was enough that a "reasonable person" would foresee that others would view statements of accused as a serious expression of an intention to inflict bodily injury or take the life of an individual---Appellate Court agreed with the Trial Court and found that conviction for offence of 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], required only the intent to communicate words that the accused understood, and that a reasonable person would view (such communication) as a threat---Validity---Criminal liability generally did not turn solely on the results of an act without considering the accused's mental state---Accused must be "blameworthy in mind" before he could be found guilty---General rule was that a guilty mind was a necessary element in the indictment and proof of every crime---For finding an accused guilty for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], the accused must know that he was transmitting a communication---Communicating something in itself, however, was not what made the conduct wrongful---Crucial element separating legal innocence from wrongful conduct was the threatening nature of the communication---Mental state requirement for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], was satisfied if the accused transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat---Requirement of mental state of accused must therefore apply to the fact that the communication contained a threat---Conviction of accused, in the present case, was premised solely on how his posts would be understood by a reasonable person---Such a "reasonable person" standard was a familiar feature of civil liability in tort law, but was inconsistent with the conventional requirement for criminal conduct---Having liability turn on whether a "reasonable person" regarded the communication as a threat - regardless of what the accused thought reduced culpability on the all-important element of the crime to negligence---Standard for determining negligence was not intended in criminal statutes---Negligence was not sufficient to support a conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)]---What the accused thought (of his posts) in the present case, thus, did matter---Question as to whether accused's recklessness in making threatening statements should suffice to require a conviction, could not be answered as both parties in the present case had not briefed or argued such point---[Per Samuel Anthony Alito, JSC, concurring and dissenting in part with the majority opinion]---Majority opinion of the Supreme Court in the present case, refused to explain as to what type of intent was necessary to convict the accused; whether there needed to be a finding that accused had the purpose of conveying a true threat; whether it was enough if the accused knew that his words conveyed such a threat, and whether recklessness would suffice---Conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)], demanded proof that the accused's transmission was in fact a threat, i.e., that it was reasonable to interpret the transmission as an expression of an intent to harm another---In addition, it must be shown that the accused was at least reckless as to whether the transmission met that requirement---Recklessness existed when the accused disregarded a risk of harm of which he was aware---Accused's recklessness in making threatening statements should suffice to require a conviction for 'communicating a threat to injure the person of another' [18 U.S.C. §875(c)]---Accused may be convicted if he or she consciously disregarded the risk that the communication transmitted would be interpreted as a true threat---Supreme Court reversed the judgment of the Appellate Court and remanded the case to the Appellate Court for further proceedings consistent with the (majority) opinion of the Supreme Court---Order accordingly.

1 W. LaFave, Substantive Criminal Law §5.1, pp. 332-333 (2d ed. 2003); United States v. Balint, 258 U. S. 250, 251 (1922); Staples v. United States, 511 U.S. at 606-607; Rogers v. United States, 422 U. S. 35, 47 (1975); Cochran v. United States, 157 U. S. 286, 294 (1895) and Morissette v. United States, 342 U.S. at 252 (1952) ref.

Hamling v. United States, 418 U. S. 87 (1974) distinguished.

(b) Interpretation of statutes---

----Criminal statute/enactment, interpretation of---Intent---Criminal statute silent as to the required mental state of accused---Fact that a (criminal) statute did not specify any required mental state, did not mean that none existed---Mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it---Such rule of construction reflected the basic principle that "wrong doing must be conscious to be criminal."---Generally criminal statutes were interpreted so as to include broadly applicable scienter (i.e. guilty knowledge) requirements, even where the statute by its terms did not contain them---When interpreting criminal statutes that were silent on the required mental state, the court read into the statute only that mens rea which was necessary to separate wrongful conduct from otherwise innocent conduct.

Morissette v. United States, 342 U.S. 246, 250 (1952); United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994) and Carter v. United States, 530 U.S. 255, 269 (2000) ref.

(c) Criminal trial---

----Conviction---Scope---Knowledge of offence---For finding an accused guilty he generally must know the facts that made his conduct fit the definition of the offense, even if he did not know that those facts gave rise to a crime.

Staples v. United States, 511 U.S. 600, 608, n. 3 (1994); Morissette v. United States, 342 U.S. 246, 250 (1952); Liparota v. United States, 471 U.S. 419, 420 (1985); Posters 'N' Things, Ltd. v. United States, 511 U.S. 513 (1994) and United States v. X-Citement Video, Inc., 513 U.S. 68 (1994) ref.

(d) Negligence---

----Communication of a threat over social media---Conviction---Negligence was not sufficient to support a conviction for "communicating a threat to injure the person of another [18 U.S.C. §875(c)].

[Per Samuel Anthony Alito, JSC, concurring in part with the majority opinion delivered by John G. Roberts, CJ]

(e) Mens rea---

----Free speech, protection of---Scope---Social media---Communication of a threat over social media---Intention of accused---Cathartic, therapeutic effect of threatening statement to the accused not a justification for posting such a statement---Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers---Accused claimed that he posted the writing on social media for 'cathartic' reasons as it had therapeutic effect for him and helped him to deal with his pain; that with such posts the accused was exercising his Constitutional right of freedom of speech, and that his posts which were in the form of rap song lyrics were constitutionally protected works of art, because they were similar to words uttered by rappers and singers in public performances and recordings---Trial Court convicted the accused for transmitting 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)]---Validity---Fact that making a threat may have a therapeutic or cathartic effect for the speaker was not sufficient to justify constitutional protection (of free speech)---Some people may experience a therapeutic or cathartic benefit only if they knew that their words would cause harm or only if they actually planned to carry out the threat, but surely the right to free speech did not protect them---Context of present case had to be kept in mind when considering the contention of accused that if celebrity singers could utter threatening words in their songs, amateurs like him should be able to post similar things on social media---Taken in context, lyrics in songs that were performed for an audience or sold in recorded form were unlikely to be interpreted as a real threat to a real person---Statements on social media that were pointedly directed at their victims, by contrast, were much more likely to be taken seriously---To hold otherwise would grant a license to anyone who was clever enough to dress up a real threat in the guise of rap song lyrics, a parody, or something similar---Evidence suggested that accused made sure his estranged wife saw his posts, and she also testified that they made her feel "'extremely afraid'" and "'like [she] was being stalked"---Threats of violence and intimidation were among the most favoured weapons of domestic abusers, and the rise of social media had only made those tactics more commonplace---Cover of artistic expression could not convert hurtful, valueless threats into protected speech---Posts made by the accused on social media in the present case were not covered by the protection of free speech under the Constitution---Case was remanded to the Appellate Court accordingly.

(f) Fundamental Rights---

----Free speech, right to---Scope---Communication of a threat---Fact that making a threat may have a therapeutic or cathartic effect for the speaker was not sufficient to justify constitutional petition of free speech.

Per Clarence Thomas, JSC; dissenting with the majority opinion delivered by John G. Roberts, CJ.

(g) Mens rea---

----Free speech, protection of---Social media---Communication of a threat over social media, conviction for---Mens rea/intention---Scope---General intent of accused to make a threatening statement---Accused used a social networking web site for posting items containing graphically violent and crude language and imagery concerning his estranged wife, co-workers, and law enforcement officers---Some of these posts contained disclaimers or indications that they were fictitious and not intended to depict real persons, and that with such statements the accused was exercising his constitutional right of freedom of speech---Majority opinion of the Supreme Court, in the present case, found that conviction for 'communication containing a threat to injure the person of another' [18 U.S.C. §875(c)], did not require consideration of how the posts would be understood by a reasonable person (general intent), rather, prosecution had to prove that accused 'knew' or was aware of his wrongdoing---Present case needed to resolve the question of the appropriate mental state of accused for threat prosecutions [under 18 U.S.C. §875(c)]---Question was "whether conviction for threatening statement [under 18 U.S.C. §875(c)] demanded proof only of general intent (i.e. how a reasonable person understood such statement), or proof of accused's subjective intent to threaten"---Majority opinion of the Supreme Court in the present judgment had cast aside the 'reasonable person' approach for convicting an accused for threatening statements, but left nothing in its place---All the lower courts would know in light of the majority opinion of the Supreme Court, was that mental requirement of general intent would not do---Majority opinion of the Supreme Court did not answer the question "whether recklessness would suffice for conviction" [under 18 U.S.C. §875(c)]---Failure to decide such questions threw everyone from judges to everyday social media users into a state of uncertainty, and lower courts were left to guess at the appropriate mental state required for convicting an accused for a threatening statement [under 18 U.S.C. §875 (c)]---Such uncertainty could have been avoided had the majority view of the Supreme Court in the present case simply adhered to the rule of the common law favouring general intent (for conviction)---Question as to whether a communication qualified as a true threat could not be determined solely by the reaction of the recipient, but must instead be determined by the interpretation of a reasonable recipient familiar with the context of the communication---Conviction for communicating a threat to injure the person of another [18 U.S.C. §875(c)], only required proof of general intent---Any accused prosecuted for such communication must know only the words used in that communication, along with their ordinary meaning in context---At a minimum, conviction for communicating a threat to injure the person of another [18 U.S.C. §875(c)], required that such communication must be one that a reasonable observer would construe as a true threat to another---Posts made by the accused, in the present case, met such objective standard---Someone who transmitted, but did not know English - or who knew English, but perhaps did not know a threatening idiom - lacked the general intent required for the offence of communicating a threat to injure the person of another [18 U.S.C. §875(c)]---Likewise, a mailman who delivered a threatening letter, ignorant of its contents, should not fear prosecution---However, a person, like the accused in the present case, who admitted that he "knew" that what he was saying was violent but supposedly just wanted to express himself, acted with the general intent required for the offence of communicating a threat to injure the person of another [18 U.S.C. §875(c)], even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law---Accused should have been convicted in the present case as he intentionally made the communication, and a "reasonable person" would foresee that others would view statements of accused as a serious expression of an intention to inflict bodily injury or take the life of an individual---Order accordingly. [Minority opinion]

United States v. Darby, 37 F. 3d 1059, 1066 (CA4 1994) and United States v. Jeffries, 692 F. 3d 473, 478 (CA6 2012) ref.

Date of hearing: 1st December, 2014.

2015 S C M R 1286

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD---Petitioner

versus

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL---Respondent

Decided on 20th January, 2015.

(On writ of Certiorari to the United States Court of Appeals for the Eighth Circuit No.13-6827)

Per Samuel Anthony Alito, JSC; John G. Roberts, CJ, Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Clarence Thomas, JJSC, agreeing;

(a) Fundamental Rights---

----Religious freedom/rights---Scope---Prison policy---Freedom to practice religion while in prison---Muslim prisoner forbidden from growing a beard in prison due to security concerns---Legality---Prisoner in question, who was a devout Muslim, wanted to grow a 1/2 inch beard in accordance with his religious beliefs---Policy of prison department in question prohibited prisoners from growing beards, with an exception that prisoners with diagnosed skin conditions may grow 1/4 inch beards---Prison officials denied the prisoner from growing a beard by claiming that beards compromised safety because they could hide contraband and because an inmate could quickly shave to disguise his identity---District Court and Appellate Court ruled that state's security concerns were sufficient to prohibit the prisoner in question from growing a beard; that the prisoner in question had himself testified that his religion would "credit" him for attempting to follow his beliefs, even if the attempts were unsuccessful; that not all Muslims believe that men must grow beards, and that the prisoner's religious exercise had not been substantially burdened because he was provided a prayer rug, correspondence with a religious advisor, required diet, etc.---Validity---No government could impose a substantial burden on the religious exercise of an institutionalized (imprisoned) person unless the government demonstrated that the burden was the least restrictive means of furthering a compelling governmental interest [section 3 of the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))]---Person who claimed that his religious rights had been violated bore the initial burden of proving that his religious exercise was grounded in a sincerely held religious belief, and that the government's action substantially burdened his religious exercise---Once the claimant satisfied such burden, the burden shifted to the government to show that substantially burdening the religious exercise of the claimant was the least restrictive means of furthering a compelling governmental interest---Prisoner's sincerity in keeping a beard was not in dispute in the present case---Practice of keeping a beard was widely followed by observant Muslims across the various schools of Islam---Prisoner's belief in keeping a beard was, thus, by no means idiosyncratic---Prison department's grooming policy in the present case required the prisoner to shave his beard and thus to engage in conduct that seriously violated his religious beliefs---If the prisoner contravened such policy and grew his beard, he would face serious disciplinary action---Since the grooming policy put the prisoner to this choice, it substantially burdened his religious exercise---Prisoner in question had, thus, easily satisfied the requirement of showing that the ban on beards burdened his religious exercise---Prison policy, in the present case, violated the prisoner's right of religious freedom (under the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))]---Trial judge had erred in concluding that the prison's grooming policy did not substantially burden prisoner's religious exercise because he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays---Courts below had also erred in suggesting that burden on prisoner's religious exercise was slight as he had testified that his religion would "credit" him for attempting to follow his beliefs, even if the attempts were unsuccessful---Freedom to practice religious beliefs (under the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))] applied to religious exercise regardless of whether it was "compelled"---Although prisoner had testified that not all Muslims believe that men must grow beards, but freedom to practice religious beliefs (under the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))] was not limited to beliefs which were shared by all of the members of a religious sect---Contention that security of prison would be seriously compromised by allowing an inmate to grow a half-inch beard was hard to take seriously---Item of contraband would have to be very small indeed to be concealed by a half-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out---Prison policy, in the present case, did not require "shaved heads or short crew cuts", and so it was hard to see why an inmate would seek to hide contraband in a half-inch beard rather than in the longer hair on his head---Prison department failed to show that enforcing its prohibition on keeping a beard furthered its interest in rooting out contraband---Prison department failed to show that forbidding very short beards was the least restrictive means of preventing the concealment of contraband---"Least-restrictive-means" standard was exceptionally demanding and it required the government to show that it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party---Where a less restrictive means was available for the Government to achieve its goals, the Government must use it---Prisons department had failed to prove that it could not adopt the less restrictive alternative of searching the beards of prisoners, including running a comb through them---Prisons department already searched prisoners' hair and clothing, and it presumably examined the 1/4-inch beards of inmates with dermatological conditions---Question then was as to why 1/2-inch beards could not be searched as well---Prison department permitted inmates to grow more than a 1/2-inch of hair on their heads---Hair on the head was a more plausible place to hide contraband than a 1/2-inch beard, and the same was true of an inmate's clothing and shoes---Nevertheless, the prison department did not require inmates to go about bald, barefoot, or naked---Although the prison department's proclaimed objectives were to stop the flow of contraband, the proffered objectives were not pursued with respect to analogous non-religious conduct, which suggested that those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree---For all such reasons, the prison department's interest in eliminating contraband could not sustain its refusal to allow the prisoner in question to grow a 1/2-inch beard---With respect to the prison department's concerns of prisoners disguising their identities, the prison authorities could take pictures of inmates with and without beards---Prison policy, in the present case, allowed prisoners to grow mustaches, head hair or 1/4 inch beards for medical reasons---Prisons department failed to show why the security risk of identification presented by a prisoner who shaved a 1/2-inch beard was so different from the risk of a prisoner shaving a mustache, head hair, or 1/4-inch beard---Many other prisons in the country allowed inmates to grow beards while ensuring prison safety and security, which suggested that the prison department in the present case could satisfy its security concerns through a means less restrictive than denying the prisoner in question the exemption sought by him of growing a 1/2 inch beard---When so many other prisons offered an accommodation, the prison department in the present case should have, at a minimum, offered persuasive reasons why it believed that it had to take a different course---Protection of a prisoner's religious exercise [under the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))] did not hinder the ability of prison authorities to maintain security, as prison authorities might be entitled to withdraw an accommodation if the prisoner abused the exemption in a manner that undermined the prison's compelling interests---[Per Ruth Bader Ginsburg, JSC]---Unlike the exemption the (US) Supreme Court approved in the case of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014), accommodating the prisoner's religious belief in the present case would not detrimentally affect others who did not share his belief---[Per Sonia Sotomayor, JSC, concurring with her own reasoning]---In the dangerous prison environment, regulations and procedures were needed to maintain good order, security and discipline, consistent with consideration of costs and limited resources---Prison security was a compelling state interest, and that deference (to prison department's opinion) was due to prison officials' expertise in such area---Court should consider deferring to prison officials' reasoning when such deference was due, that is, when prison officials offered a plausible explanation for their chosen policy that was supported by whatever evidence was reasonably available to them---However, such deference that must be extended to the experience and expertise of prison administrators did not extend so far that prison officials may declare a compelling governmental interest by fiat---In the present case the prison department's failure to demonstrate why the less restrictive policies that the prisoner identified in the course of litigation were insufficient to achieve its compelling interest . . . not the Supreme Court's independent judgment concerning the merit of these alternative approaches . . . was ultimately fatal to the prison department's position---Supreme Court was appropriately skeptical of the relationship between the prison department's no-beard policy and its alleged compelling interests because the department offered little more than unsupported assertions in defense of its refusal of prisoner's requested religious accommodation---Supreme Court opined that the prison department's grooming policy in the present case violated the prisoner's freedom to practice his religious beliefs [under the Religious Land Use and Institutionalized Persons Act, 2000 (42 U.S.C. §2000cc-1(a))], insofar as it prevented him from growing a 1/2-inch beard in accordance with his religious beliefs---Supreme Court reversed the judgment of Appellate Court, and remanded the case for further proceedings consistent with the present opinion.

Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 815 (2000); Church of LukumiBabalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993); Cutter v. Wilkinson, 544 U. S. at 725, n. 13 (2005) and Yellowbear v. Lampert, 741 F. 3d 48, 59 (CA10 2014) ref.

(b) Fundamental Rights---

----Religious freedom/rights, restriction upon---Scope---Prohibition on Government from imposing a substantial burden on the religious exercise of an institutionalized (imprisoned) person unless the government demonstrated that the burden was the "least restrictive means" of furthering a compelling governmental interest [section 3 of the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))]---"Least-restrictive-means"---Scope---"Least-restrictive-means" standard was exceptionally demanding and it required the government to show that it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party---Where a less restrictive means was available for the Government to achieve its goals, the Government must use it.

United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 815 (2000) ref.

Per Sonia Sotomayor, JSC; concurring with the majority opinion delivered by Samuel Anthony Alito, JSC, but with her own reasoning

(c) Fundamental Rights---

----Religious freedom/rights, restriction upon---Scope---Prohibition on Government from imposing a substantial burden on the religious exercise of an institutionalized (imprisoned) person unless the government demonstrated that the burden was the "least restrictive means" of furthering a compelling governmental interest [section 3 of the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))]---"Least-restrictive-means"---Scope---Phrase 'least restrictive means' was a relative term, and it necessarily implied a comparison with other means---Prison officials did not have to refute every conceivable option to satisfy the least restrictive means requirement [under the Religious Land Use and Institutionalized Persons Act, 2000. (42 U.S.C. §2000cc-1(a))]---Neither did prison officials have to prove that they considered less restrictive alternatives at a particular point in time---Government need not do the impossible . . . refute each and every conceivable alternative . . . but need only refute the alternative schemes offered by the claimant.

Couch v. Jabe, 679 F. 3d 197, 203 (CA4 2012) and United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011) ref.

Date of hearing: 7th October, 2014.

2015 S C M R 1601

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

RICHARD E. GLOSSIP, ET AL---Petitioners

versus

KEVIN J. GROSS, ET AL---Respondents

Decided on 29th June, 2015.

(On writ of Certiorari to the United States Court of Appeals for the Tenth Circuit No.14-7955)

Per Samuel Anthony Alito, JSC; John G. Roberts, CJ, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, JJSC, agreeing; Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, JJSC, dissenting.

(a) Criminal trial---

----Sentence---Death sentence---Method of carrying out death sentence---Prohibition against carrying out death sentence by a method that was cruel and created a demonstrable risk of severe pain---Death sentence carried out through administration of lethal injection---Death sentences were carried out by the State in question through a three-drug protocol administered through injections, in which the first drug, a sedative rendered the prisoner unconscious, so that he did not feel the severe pain caused by the second and third injected drugs, which paralyzed the prisoner and stopped the heart---Petitioners, who were death-row prisoners, challenged the use of the sedative as the first drug in the lethal injection process by contending that evidence suggested that the sedative could not reliably ensure the 'deep, comalike unconsciousness' required before injecting the second and third drugs; that use of the sedative in question to carry out executions failed to render a person insensate to pain, which violated their Constitutional right of prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution]---Validity---Sedative in question, used to render condemned prisoners unconscious as the first stage in the lethal injection process, worked sufficiently well that it did not violate the prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution]---Expert evidence available on record supported the conclusion that the sedative in question could render a person insensate to pain---Petitioners failed to identify an available and preferable method of execution and failed to make the case that the sedative entailed a substantial risk of severe pain---Rejecting every available means of carrying out the death penalty would amount to striking it down even though it was Constitutional---Supreme Court (USA) opined that the execution of petitioners could be carried out by using the sedative in question in the three-drug injection formula---Detailed reasons stated.

Following are the reasons for allowing the use of the sedative in question, as a part of the three-drug injection formula for executing death-row prisoners.

Petitioners failed to identify and prove a known and available alternative method of execution that entailed a lesser risk of pain, a requirement of all method of execution claims [under the Eighth Amendment (Amendment VIII) to the United States Constitution]; failed to satisfy their burden of establishing that any risk of harm by using the sedative in question was substantial when compared to a known and available alternative method of execution, and also failed to establish that the State's use of a massive dose of the sedative in its execution protocol entailed a substantial risk of severe pain.

Baze v. Rees, 553 U.S. 35, 61 (2008) ref.

Hill v. McDonough, 547 U.S. 573 (2006) distinguished.

Case record showed that the State had been unable to procure alternative drugs/sedatives, suggested by the petitioners, despite a good-faith effort to do so. Petitioners had not identified any available drug or drugs that could be used in place of those suggested by the petitioners, which the State was now unable to obtain.

Expert evidence presented by both sides in the present case supported the conclusion that the sedative in question could render a person insensate to pain.

Chavez v. Florida SP Warden, 742 F. 3d 1267; Banks v. State, 150 So. 3d 797 (Fla. 2014); Howell v. State, 133 So. 3d 511 (Fla. 2014) and Muhammad v. State, 132 So. 3d 176 (Fla. 2013) ref.

Some risk of pain was inherent in any method of execution. Constitution (of the United States of America) did not require the avoidance of all risk of pain. Holding that the prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] demanded the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

State in question had also adopted important safeguards to ensure that the sedative was properly administered. Such safeguards helped to minimize any risk that might occur in the event that the sedative did not operate as intended.

Petitioners had contended that the sedative had a "ceiling effect" above which any increase in dosage produced no effect, because of which it was wrong to assume that a high dose of 500 milligrams of the sedative used by the State had a much greater effect than a therapeutic dose of about 5 milligrams. Burden of proving such fact was on the petitioners, however they did not meet such burden in the present case. Mere fact that the sedative had such a "ceiling effect" could not be dispositive. Expert evidence on record suggested that all drugs essentially had a ceiling effect. Relevant question in the present case was whether the sedative's ceiling effect occurred below the level of a 500 milligram dose and at a point at which the drug did not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners provided little probative evidence on such point, and the speculative evidence that they did present to the District Court below did not come close to establishing the sedative did not have the ability to render a prisoner insensate to pain caused by the second and third drugs in the lethal injection protocol.

(b) Criminal trial---

----Sentence---Death sentence---Method of carrying out a death sentence--- Different methods of carrying out death sentences adopted in the United States of America since the time of the adoption of the United States Constitution and the Bill of Rights to ensure that death sentences were executed in the most humane manner stated.

(c) Criminal trial---

----Sentence---Death sentence---Method of carrying out a death sentence---When it was settled that capital punishment was Constitutional, it necessarily followed that there must be a Constitutional means of carrying it out.

Per Antonin Scalia, JSC; Clarence Thomas, JSC, concurring.

(d) Criminal trial---

----Sentence---Death sentence, Constitutionality of---Observations and reasons recorded in support of the view that punishment of death sentence was permissible and explicitly contemplated by the Constitution (of the United States of America) stated---Critique of the dissenting opinions in the present case which suggest that the death penalty was cruel, unconstitutional and not a significant deterrent stated.

Per Clarence Thomas, JSC; Antonin Scalia, JSC, concurring.

(e) Criminal trial---

----Sentence---Death sentence, Constitutionality of---Observations and reasons recorded in support of the view that punishment of death sentence was permissible and explicitly contemplated by the Constitution (of the United States of America) stated---Critique of the dissenting opinions in the present case which suggest that the death penalty was cruel, unconstitutional and not a significant deterrent stated.

Per Stephen G. Breyer, JSC; dissenting with Samuel Anthony Alito, Antonin Scalia and Clarence Thomas, JJSC. [Minority view]

(f) Criminal trial---

---Sentence---Death sentence, Constitutionality of---Critique of the use of the death penalty in the United States of America---Arbitrary imposition of punishment was the antithesis of the rule of law---Death penalty in general may violate the prohibition against the infliction of "cruel and unusual punishments" [Eighth Amendment (Amendment VIII) to the United States Constitution]---Use of death penalty in present times involved fundamental Constitutional defects, namely, serious unreliability; arbitrariness in application, and unconscionably long periods of time spent by prisoners on death row, which aggravated the cruelty of the death penalty and undermined its penological purpose---Survey of case-law and research studies (in the US) from the last four decades showed that innocent people had been executed; that exonerations occurred far more frequently where capital convictions, rather than ordinary criminal convictions, were at issue; that in cases of capital punishment there was a greater likelihood of an initial wrongful conviction because the crimes at issue were typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction; that flawed forensic evidence/testimonies had been used in securing death sentences; that in many instances courts sentenced defendants to death without complying with the necessary procedures; that death sentences were imposed capriciously and randomly, i.e., without the reasonable consistency legally necessary to reconcile its use with the Constitution's commands; that factors that most clearly ought to determine as to who received the death penalty, namely, comparative egregiousness of the crime, often did not, while circumstances that ought not to significantly determine application of the death penalty, such as race, gender, local geography, and resources and community biases, often did; that the capital justice system was warped by political pressures; that whatever interest in retribution might be served by the death penalty as presently administered, that interest could be served almost as well by a sentence of life in prison without parole, and that statistical and empirical evidence did not suggest that the death penalty had a significant deterrent effect---System of death penalty that sought procedural fairness and reliability brought with it delays that severely aggravated the cruelty of capital punishment and significantly undermined the rationale for imposing a sentence of death in the first place---Compensation of attorneys for death penalty representation remained inadequate, and it had not proved possible to increase capital defense funding significantly---Nearly all prisoners on death row were in isolation for most of the day, and such prolonged solitary confinement produced numerous deleterious harms---Dehumanizing effect of solitary confinement was aggravated by uncertainty as to whether a death sentence would in fact be carried out---Furthermore, given the negative effects of confinement and uncertainty, many death row inmates volunteered to be executed, abandoning further appeals or considered committing suicide---Detailed reasons stated. [Minority view]

Kansas v. Marsh, 548 U.S. 163, 207-211 (2006); Atkins, 536 U.S., at 320, n. 25; National Registry of Exonerations (http://www.law.umich.edu/special/exoneration/Pages/about. aspx (all Internet materials as visited June 25, 2015); Gross, Jacoby, Matheson, Montgomery & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531-533 (2005); Gross & O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical L. Studies 927, 956-957(2008); B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011); Rozelle, The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation, 38 Ariz. S.L.J. 769, 772-793, 807 (2006); Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams Univ. L. Rev. 211, 214-223 (2004); Gross, O'Brien, Hu, & Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proceeding of the National Academy of Sciences 7230 (2014); Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007); Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004); Earley, A Pink Cadillac, An IQ of 63, and A Fourteen-Year-Old from South Carolina: Why I Can No Longer Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015); Furman v. Georgia, 408 U. S. 238 (1972) (per curiam); Eddings v. Oklahoma, 455 U. S. 104, 112 (1982); Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014); Shatz & Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1245-1251 (2013); Smith, The Geography of the Death Penalty and its Ramifications, 92 B. U. L. Rev. 227, 231-232 (2012); Goelzhauser, Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death Charging Decisions, 96 Judicature 161, 162-163 (2013); Barnes, Sloss, & Thaman, Place Matters (Most): An Empirical Study of Prosecutorial Decision Making in Death-Eligible Cases, 51Ariz. L. Rev. 305 (2009); Donohue,An Empirical Evaluation of the Connecticut Death Penalty System, at 681 (Connecticut); Marceau, Kamin, & Foglia, Death Eligibility in Colorado: Many Are Called, Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013); Liebman & Clarke, Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L. 255, 274 (2011); Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994); Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 355 (2008); Callins v. Collins, 510 U. S. 1141, 1153 (1994); Gomez v. Fierro, 519 U. S. 918 (1996); Lackey v. Texas, 514 U. S. 1045 (1995); Knight v. Florida, 528 U. S. 990, 993 (1999); Thompson v. McNeil, 556 U. S. 1114, 1115 (2009); ACLU, A Living Death:Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013); Atkins, 536 U. S., at 319 and Enmund v. Florida, 458 U. S. 782, 798 (1982) ref.

(g) Criminal trial---

----Sentence---Death sentence, constitutionality of---Significant decline in the use of death penalty in the United States of America in the last few decades illustrated through statistics warranting a reconsideration of the Constitutionality of the death penalty stated. [Minority view]

Per Sonia Sotomayor, JSC; dissenting with Samuel Anthony Alito, Antonin Scalia and Clarence Thomas, JJSC. [Minority view]

(h) Criminal trial---

----Sentence--- Death sentence---Method of carrying out death sentence---Prohibition against carrying out death sentence by a method that was cruel and created a demonstrable risk of severe pain---Death sentence carried out through administration of lethal injection---Death sentences were carried out by the State in question through a three-drug protocol administered through injections, in which the first drug, a sedative rendered the prisoner unconscious, so that he did not feel the severe pain caused by the second and third injected drugs, which paralyzed the prisoner and stopped the heart---Petitioners, who were death-row prisoners, challenged the use of the sedative as the first drug in the lethal injection process by contending that evidence suggested that the sedative failed to render a person insensate to the pain caused by the administration of the second and third drugs, thus its use to carry out executions, violated their Constitutional right of prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution]---Validity---Where a State wished to vary out a death sentence, it must do so subject to the constraints that the Constitution (of the United States of America) imposed on it, including the obligation to ensure that its chosen method was not cruel and unusual---Method of executing a condemned prisoner that was barbarous or involved torture or a lingering death, did not become less so just because it was the only method currently available---Where all available means of conducting an execution constituted cruel and unusual punishment, then conducting the execution would constitute cruel and usual punishment---Nothing compelled a State to perform an execution---Prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] should have barred the State in question from using the disputed sedative drug as part of a lethal injection protocol because it could not be trusted to render and keep a condemned prisoner unconscious, leaving him open to pain at the later stages of his execution---District Court below relied on scientifically implausible testimony of State's expert witnesses to determine the effectiveness of the sedative in question in rendering a person insensate to pain---Such expert evidence was unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of the sedative's properties, and apparently premised on basic logical errors---In stark contrast to the State's expert evidence, petitioners' experts cited multiple sources to point to objective evidence indicating that sedative in question could not serve as an effective anesthetic that rendered a person insensate to pain, and that it had a ceiling effect, which meant that there was a point at which increasing the dose of the sedative did not result in any greater effect---Such evidence alone provided ample reason to doubt the sedative's efficacy---Petitioners only had to establish an intolerable risk of pain, not a certainty---Petitioners failure in the present case to identify a known and available alternative method of execution that entailed a lesser risk of pain was irrelevant as a condemned prisoner had no duty to devise or pick a Constitutional instrument of his or her own death---Safeguards adopted by the State in the present case to ensure that the disputed sedative was properly administered did not seem to mitigate the substantial risk that the such sedative would not work---Petitioners in the present case had no part in creating the shortage of execution drugs, that had been effectively and successfully used for executions before the use of the disputed sedative; it was odd to punish the petitioners for the actions of pharmaceutical companies and others who sought to disassociate themselves from the death penalty---Execution protocols that States hurriedly devised as to locate new and untested drugs, such as the disputed sedative in the present case, were all the more likely to be cruel and unusual---Presumably, such drugs would have been the States' first choice were they in fact more effective---Courts' review of execution methods should be more, not less, searching when States were engaged in what was in effect human experimentation---By protecting even those convicted of heinous crimes, the prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] reaffirmed the duty of the government to respect the dignity of all persons. Detailed reasons stated. [Minority view]

Date of hearing: 29th April, 2015.