SCMR 2016 Judgments

2016 S C M R 563

[Constitutional Court of South Africa]\

Present: Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J

XOLILE DAVID KHAM and 7 others---Applicants

Versus

ELECTORAL COMMISSION OF SOUTH AFRICA and another---Respondents

Case CCT 64/15, decided on 30th November, 2015.

(a) Election---

----"Free and fair elections"---Elements that were of fundamental importance to the conduct of "free and fair elections"---Question as to whether any election could be characterised as "free and fair" must always be assessed in context--- Ultimately it involved a value judgment---Certain elements could be distilled as being of fundamental importance to the conduct of free and fair elections; first, every person who was entitled to vote should, if possible, be registered to do so; second, no one who was not entitled to vote should be permitted to do so; third, insofar as elections had a territorial component, as was the case with municipal elections where candidates were in the first instance elected to represent particular wards, the registration of voters must be undertaken in such a way as to ensure that only voters in that particular area (ward) were registered and permitted to vote; and, fourth, the Constitution should protect not only the act of voting and the outcome of elections, but also the right to participate in elections as a candidate and to seek public office.

Bjornlund Beyond Free and Fair (Woodrow Wilson Centre Press. Washington DC 2004) at 94-128 ref.

(b) Jurisdiction---

----Special Court created under a statute, jurisdiction of---Scope---Purpose of creating a special court/single forum for resolving disputes of a particular type was not to be stultified by a resort to undue literalism and too careful a parsing of statutory language.

Chirwa v. Transnet Ltd. [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC) at paras 47-54 and 101-113 and Gcaba v. Minister of Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) (Gcaba) at para 57 ref.

(c) Election---

----Voter rolls, objection against---Procedure---Procedure adopted for lodging objections to voter's rolls should not only favour large and well-resourced parties, who had the resources to monitor voter rolls throughout the year, but also independent candidates and smaller political parties seeking to make a political breakthrough---Procedure which restricted ability of independent candidates and smaller political parties to object to voters' list would be a substantial check on their ability to participate meaningfully in elections and their constitutional right to stand as candidates for public office.

Procedure adopted for lodging objections to voter's rolls in the present case was such that the objector first had to identify the voters who were wrongly registered, and then serve notice of their objection on the people to whose registration they objected. Such a procedure was not practically feasible especially since candidates in the present case received copies of their segment of voters' rolls about a week before election day. Copies received also contained no addresses.

Procedure adopted in the present case may work well for large and well-resourced political parties, who could monitor the roll throughout the year as voters were added to it or removed from it. They had their own records regarding voters and other means to enable them to cross-check against the voters' roll any registration that they regarded as doubtful. In addition, they were likely to have available sophisticated computer programmes that enabled them to correlate the contents of the voters' roll with other information and enable them to detect errors. But resources of such nature were not freely available to independent candidates or smaller political parties seeking to make a political breakthrough. To restrict their capacity to object to the voters' roll to a mode of objection suited only to the large and the well-resourced, would be a substantial check on their ability to participate meaningfully in elections and their constitutional right to stand as candidates for public office. It would be a particularly acute problem at the level of local government where substantial number of candidates and groupings were either independent or belonged to smaller political parties.

(d) Election---

----Local Government elections---Irregularities in the election process---Whether elections free and fair---Electoral Commission, obligations of---Duty to register voters in correct voting district---Duty to show addresses on voters roll---Duty to adhere to election timetable---Non-compliance with such obligations was a serious breach resulting in by-elections not being free and fair---Independent candidates in the present case, such as the applicant, were constrained to fight by-elections under the shadow of uncertainty occasioned by the irregular registration of an unknown number of voters in the affected wards who were not entitled to vote and an inability to identify who these were or to do anything about it; their efforts were hampered by the late delivery of the segments of the voters' roll and, in particular, the absence of voters' addresses, when such segments were delivered to them---Voters in the affected wards were deprived of the free and fair election to which they were entitled, while the candidates were deprived of the right to participate in a free and fair election---Just and equitable relief in the present case was to set-aside results of such by-elections and order fresh by-elections.

After the by-elections, the Electoral Commission in the present case conducted its own investigation and found that there were some irregularities in the election process. These consisted of the registration of voters in wards where they were not and had not been resident; the failure to adhere to the election timetable in providing the candidates with a free copy of the voters' roll; and, the fact that the voters' roll that was made available did not include voters' addresses. Electoral Commission, however, concluded that votes from voters who were not entitled to be registered in affected wards, in the present case, were not sufficient enough in numbers to affect the result of the by-elections, meaning that the result of the by-elections could not be disturbed.

Process of election to public office of councillors was of cardinal importance for the healthy operation of democracy at local government level. This process was particularly vulnerable to manipulation. If voters could be brought from outside, into a ward where the political balance was unclear, their votes may influence the outcome of the election at a ward level and even the outcome of an entire municipal election. Ensuring that voters were correctly registered in the voting district where they were ordinarily resident was of particular importance in the context of municipal elections because they were conducted in the first instance on a ward basis. Particular attention should, therefore, be paid by the Electoral Commission in securing that, where there were elections and by-elections in wards, the people who were registered as voters and permitted to vote should be limited to those who were legitimately entitled to vote in that ward. Such requirement was not followed by the Electoral Commission in the present case. Data from Electoral Commission's own investigation showed that certain new voters were registered in the incorrect ward, while addresses of some voters given on their registration forms were so sketchy that it was impossible to say whether they were registered in the correct ward. A number of others were registered in the correct wards but in the wrong voting districts. What was troubling about this was that there was no explanation of how the incorrect registrations were made. Principle that only those legally entitled to do so should be permitted to vote was breached in the present case.

Electoral Commission, in the present case, also ignored its obligation to provide all candidates with a copy of the relevant segment of the voters' roll containing the addresses of voters in the ward with their addresses (where such addresses were available). Efforts of independent candidates were hampered in the present case by the late delivery of the segments of the voters' roll and, in particular, the absence of voters' addresses, when those segments were delivered. This was a serious breach of the Electoral Commission's statutory obligations. Without voters' addresses, the ability of candidates to canvass voters was significantly impaired.

Applicants' constitutional right of freedom of speech was also limited in that they were restricted in their ability to convey their political message to their chosen electorate.

Applicants' right to relief in the present case was not constrained by the need to show that the result of the election would have been materially different had the incorrect registrations of voters not occurred.

By-elections conducted, in the present case, were not free and fair. Constitutional Court set-aside the results of said elections and directed that when registering a voter to vote in a particular voting district the Electoral Commission was obliged to obtain sufficient particularity of the voter's address to enable it to ensure that the voter was at the time of registration ordinarily resident in that voting district; that the Electoral Commission was under a statutory obligation to provide all candidates in municipal elections, on the date on which they were certified, with a copy of the segment of the national voters' roll to be used in that ward in that election including the addresses of all voters, where these addresses were available.

(e) Election---

----Local Government elections--- Expression "free and fair elections"--- Meaning and scope--- Expression "free and fair" highlighted both the freedom to participate in the electoral process and the ability of the political parties and candidates, both aligned and non-aligned, to compete with one another on relatively equal terms---As to the former, from the perspective of a political party or an individual candidate seeking election in a municipal ward, it demanded the freedom to canvass; to advertise; and to engage in the activities normal for a person seeking election---Phenomena like "no go" areas; the denial of facilities for the conduct of meetings; disruption of meetings; the destruction of advertising material or the intimidation of candidates, workers or supporters, could all prevent an election from being categorised as "free and fair".

Sewer Elections Full, Free and Fair (The Federation Press, Sydney 2001) at 1 and 4 ref.

(f) Election---

----Election process---Constitutional requirement of "free and fair" elections---Test for determining whether an election process suffering from irregularities was free and fair---Nature of the irregularities and their impact on the conduct, as well as the result of the election, so far as that could be assessed, must be measured against the constitutional standard that elections must be "free and fair"---Court must be satisfied on all the evidence placed before it that there were real (and not speculative or imaginary) grounds for concluding that the elections were not "free and fair".

Question as to whether the election process suffering from irregularities was "free and fair" involved a value judgment. Nature of the irregularities and their impact on the conduct, as well as the result of the election, so far as that could be assessed, must be measured against the Constitutional standard. Electoral Court or another court required to make such judgment must weigh all the evidence and, in that light, determine whether the constitutional requirement was satisfied. Since the facts would be different in every instance where question of "free and fair" election process arose, it was appropriate to say that the existence of a particular deficiency in one case, did not necessarily mean that the presence of the same deficiency in another election held in differing circumstances, would result in the same conclusion. For example, in a national election, the fact that voters, otherwise qualified to vote, were registered in the incorrect voting district, may be of less significance than in a municipal by-election; but late delivery of voters' rolls, or delivery of rolls with important information missing, may assume even greater significance at the national than the local level.

Court must give full weight to the Constitutional commitment to free and fair elections and the safeguard it provided of the right and ability of all who so wished to offer themselves for election to public office. It was insufficient for the Court to say that it had a doubt, or a feeling of disquiet, or was uncomfortable about the freedom and fairness of the election. It must be satisfied on all the evidence placed before it that there were real - not speculative or imaginary - grounds for concluding that the elections were not free and fair.

(g) Election---

----Voters' roll---Serious questions as to the reliability of voters' rolls---Elections conducted on basis of such questionable voters' roll could not be described as free and fair.

(h) Election---

----Election results not free and fair due to irregularities---Just and equitable relief---Setting aside of election results---Scope---Not necessary to set aside election results in every case involving irregularities---Concluding that an election was not free and fair, and therefore must be set aside was always tempting; but that may be an unduly facile conclusion---Overturning an election was a serious business---Electoral legitimacy and the integrity of the electoral process were of enormous importance---Right to vote was a precious one for all---Many people, in many different ways, struggled and fought to secure the right to vote for all people---Many devoted their lives to the struggle for democracy; others were imprisoned, banned, harassed and exiled---Struggle of all those who worked to bring democracy was properly honoured when free and fair elections were conducted to determine the will of those who had the right to vote, therefore, it was vital that courts were jealous of the privilege so hardly won---In determining a just and equitable remedy, where an election had been held not to be free and fair, these considerations must form the backdrop to the performance of the court's role as the guardian of the Constitution and the Electoral Commission's performance of its obligation to ensure free and fair elections---Where the elections conducted by the Electoral Commission were not free and fair and the Constitutional right to participate in and contest those elections was infringed, it was not sufficient to set-aside the result of such elections solely on the basis that claimant had proved a certain number of votes as irregular votes---In any event it was always difficult to predict what would have occurred had those electoral irregularities been absent---Possibility always existed that had the irregularities not been present choice of voters would have still fallen on the same candidates who were declared elected.

Opitz v. Wrzesnewskyj 2012 SCC 55; [2013] 3 SCR 76 at para 87 (Opitz); Cusimano v. Toronto (City) 2011 ONSC 7271 at para 63; Gooch v. Hendrix 851 P 2d 1321 (Cal. Sup. Ct. 1993) (Gooch) at 1327-8; McEwing v. Canada (Attorney General) [2013] 4 FCR 63; 2013 FC 525 at para 56; Marks v. Stinson 19 F 3d 873 (1994) at 887 and Bell v. Southwell 376 F 2 d 659 (5th Cir. 1967) ref.

J Roux, M Riley and CL Markram instructed by the Moolman & Pienaar Inc. for the Applicants.

MTK Moerane SC and L Gcabashe instructed by Gildenhuys Malatji Inc. for Respondents.

Date of hearing: 10th September, 2015.

2016 S C M R 709

[Constitutional Court of South Africa]\

Present: Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J

AYANDA MTYHOPO---Applicant

Versus

SOUTH AFRICAN MUNICIPAL WORKERS UNION NATIONAL PROVIDENT FUND---Respondent

Case CCT 48/15, decided on 1st October, 2015.

(On appeal from the Eastern Cape Division of the High Court, Grahamstown)

Fundamental Rights---

----Freedom of expression---Defamation---Prior restraint of speech by way of an interdict (prohibition order)---Interdict restrained not only defamatory statements but also statements that were untrue, when no case of injurious falsehood was made---Unconstitutional---Prior restraint of speech was among the most serious infringements of freedom of expression as it could extend to any future statements even those that might be lawful.

Applicant was a member of the Municipal Workers Union National Provident Fund (the Fund). Due to certain grievances between the Fund and its members, the applicant approached a local newspaper which printed an article mentioning that the Fund was uncooperative with its members and was also embroiled in a financial scandal in which money was allegedly stolen from the Fund. Pursuant to the publishing of the article, the Fund claimed defamation and applied to the High Court for an interdict (prohibition order) to prevent the applicant from approaching the press or in any other way, directly or indirectly, speaking to the issue surrounding the Fund and the workers. High Court held that applicant had defamed the Fund and ordered him not to make any further false or defamatory statements concerning the Fund, or to cause anyone else to do so.

In the present case, the issue was the prior restraint of speech which was the most serious infringement of freedom of expression. This was due to the fact that it barred an individual from making a future statement regardless of whether it was lawful. It also restrained not solely defamatory statements but also statements that were untrue, when no case of injurious falsehood was made.

Print Media South Africa and another v. Minister of Home Affairs and another [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC); Midi Television (Pty) Ltd. v. Director of Public Prosecutions (WC) [2007] ZASCA 56 and [2007] 3 All SA 318 (SCA) ref.

Applicant in the present case, did not disclose complete facts about certain aspects of the Fund to the newspaper, but it did not follow that applicant's failure to do so made the article defamatory of the Fund. Such omission on part of applicant did not constitute actionable defamation. For that, it would need to have the effect of reducing the Fund's reputation in the estimation of ordinary readers. And, on any reading of the article, that was not what the hypothetical reasonable reader would have concluded from the article.

Certain amount of money was in fact paid to a trustee of the Fund; the sum should not have been paid; and the trustee was in consequence removed from the Fund's Board. This was a scandal, so the statement in article that the Fund "was embroiled in a scandal" in which money was allegedly stolen was true and thus not defamatory. Therefore, an interdict restricting applicant's speech was unwarranted and infringed his Constitutional rights. Constitutional Court accordingly allowed the appeal with costs, and set aside the interdict (prohibition order) granted by the High Court.

S Budlender and M Bishop instructed by the Legal Resources Centre for the Applicant.

Bowman Gilfillan for Respondent.

2016 S C M R 1040

[Constitutional Court of South Africa]

Present: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J

CASE CCT 143/15

ECONOMIC FREEDOM FIGHTERS---Applicant

Versus

SPEAKER OF THE NATIONAL ASSEMBLY and others---Respondents

CASE CCT 171/15

DEMOCRATIC ALLIANCE---Applicant

Versus

SPEAKER OF THE NATIONAL ASSEMBLY and others---Respondents

Cases CCT 143/15 and CCT 171/15, decided on 31st March, 2016.

(a) Public official---

----Abuse of State power and resources---Adopting accountability, the rule of law and the supremacy of the Constitution was a check on such abuse---Constitutionalism, accountability and the rule of law constituted the sword that stood ready to chop the head of impunity.

(b) Constitution of the Republic of South Africa, 1996---

----Ss. 42(3), 55(2), 83, 84, 181 & 182---Public Protector Act (23 of 1994), S. 8(2)---Accountability of the Executive---Misuse of state funds---Private residence of the President---Use of state funds to make renovations and improvements to the private residence of the President under the pretext of security upgrades---Constitutionality and legality---Office of the Public Protector (an independent Constitutional institution) found that the "security upgrades" were no more than luxurious improvements, and that the President should repay the amounts expended on "unlawful" upgrades---President and National Assembly (Parliament) failed to take the remedial action recommended by the Public Protector---National Assembly passed a resolution to exonerate the President from any liability---Held, that such conduct of the President and the National Assembly was inconsistent with their constitutional obligations, and hence constituted breach of the Constitution---Remedial action taken by the Public Protector was binding---By failing to comply with the Public Protector's order the President failed to uphold, defend and respect the Constitution---Power of the Public Protector to take appropriate remedial action had legal effect and was binding, therefore, neither the President nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect, unless it had been set aside through a proper judicial process---National Assembly's resolution, based on the findings of Minister of Police, exonerating the President from liability, was inconsistent with the Constitution and unlawful---Constitutional Court (apex court) ordered that President must pay for the non-security measures at his private residence and should reprimand the Ministers involved in the expenditure; that the resolution passed by the National Assembly absolving the President from liability was invalid and accordingly set aside, and that the President, Minister of Police, and the National Assembly should pay the present applicants' costs, including those of the counsel.

Office of Public Protector (an independent Constitutional institution) investigated allegations of irregular state expenditure relating to the security upgrades at a private residence of the President. Public Protector concluded in its report that several improvements, namely the visitor's centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool were non-security features; that since the State was under an obligation only to provide security for the President at his private residence, any installation that had nothing to do with the President's security amounted to undue benefit or unlawful enrichment to him and his family and must therefore be paid for by him; that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources, and that the President should reprimand the Ministers involved in the project for specified improprieties. The report of Public Protector was submitted to the National Assembly (Parliament) and President in order to facilitate compliance with the remedial action. In the meanwhile the National Assembly passed a resolution exonerating the President from liability (based on the findings of a report prepared by the Minister of Police). For well over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action contending that the recommendations of the Public Protector were not binding.

Public Protector's power to take remedial action had legal effect and was binding. It was incorrect to say that the Public Protector may only make recommendations that may be disregarded provided there was a rational basis for doing so. Public Protector's power to take appropriate remedial action in matters it was seized with, gave it the power to determine the appropriate remedy and prescribe the manner of its implementation. Only after a court of law had set aside the findings and remedial action taken by the Public Protector would it have been open to the President to disregard the Public Protector's report. President did not challenge the report through a judicial process. He appeared to have been content with the apparent vindication of his position by the favourable report of Minister of Police and considered himself to have been lawfully absolved of liability. Emboldened by the Minister's conclusion, and a subsequent resolution by the National Assembly to the same effect, the President neither paid for the non-security installations nor reprimanded the Ministers involved in the same. In such way the Public Protector's remedial action was questioned in a manner that was not sanctioned by the rule of law.

President's failure and disregard to comply with the remedial action taken against him by the Public Protector was inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law. President was also duty-bound to, but did not, assist and protect the Public Protector so as to ensure its independence, impartiality, dignity and effectiveness by complying with its remedial action. President might have been following wrong legal advice and therefore acting in good faith. But that did not detract from the illegality of his conduct which was inconsistent with his constitutional obligations.

The high importance, sensitivity and potentially far-reaching implications of the Public Protector's report, considering that the Head of State and the Head of the Executive was himself implicated, pointed but only to one conclusion; that the Public Protector's report was a high priority matter that required the urgent attention of or an intervention by the National Assembly. It ought therefore to have triggered into operation the National Assembly's obligation to scrutinise and oversee executive action and to hold the President accountable, as a member of the Executive. National Assembly had the obligation to give urgent attention to the report, its findings and remedial action taken and intervene appropriately in that matter. Instead it passed a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replaced them with its own findings and "remedial action". By passing the resolution the National Assembly effectively flouted its obligations. Failure by the National Assembly to hold the President accountable by ensuring that he complied with the remedial action taken against him, was inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President, and in particular, to give urgent attention to or intervene by facilitating his compliance with the remedial action.

Constitutional Court ordered that the National Treasury must determine a reasonable percentage of the costs of the measures at the President's private residence that did not relate to security, namely the visitors' centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only; that National Treasury must determine a reasonable percentage of the costs of such measures which ought to be paid personally by the President; that the President must reprimand the Ministers involved in the current case; that resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector was invalid and accordingly set aside, and that the President, the Minister of Police and the National Assembly must pay the costs of the present application including cost of the counsel.

(c) Constitution of the Republic of South Africa, 1996---

----Ss. 83 & 167(4)(e)---Exclusive jurisdiction of Constitutional Court (of South Africa) to decide whether the President had failed to fulfil a constitutional obligation---Scope of such jurisdiction stated.

(d) Constitution of the Republic of South Africa, 1996---

----Ss. 83, 84, 85 & Sched. 2---President of the Republic of South Africa---Powers and duties of the President stated.

(e) Constitution of the Republic of South Africa, 1996---

----Ss. 55 & 77---Parliament of the Republic of South Africa---Powers and functions of the Parliament stated.

(f) Constitution of the Republic of South Africa, 1996---

----Ss. 55(2), 167(4)(e) & 181(3)--- Exclusive jurisdiction of Constitutional Court (of South Africa) to decide whether the National Assembly (Parliament) had failed to fulfil a constitutional obligation--- Scope of such jurisdiction stated.

(g) Constitution of the Republic of South Africa, 1996---

----Ss. 181(1)(a) & 181(2)---Office of the Public Protector (an independent Constitutional institution in South Africa)---Powers and role---Investigating corruption, abuse of power, unlawful enrichment, prejudice and impropriety by Government officials and institutions and taking appropriate remedial action---Betterment of good governance---Strengthening of Constitutional democracy---Powers and role of the Office of the Public Protector and legal effect of its remedial actions stated.

South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] ZASCA 156; [2015] 4 All SA 719 (SCA) (SABC v DA) at para 31; The Public Protector v Mail & Guardian Ltd and Others [2011] ZASCA 108; 2011 (4) SA 420 (SCA) at para 5; Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC) and 1996 (10) BCLR 1253 (CC) at para 161 ref.

(h) State resources---

----Public officials, duty of---State resources belonged to the public, as did State power---Repositories of such resources and powers were to use them, on behalf and for the benefit of the public.

(i) Separation of powers, doctrine of---

----Scope---Doctrine of separation of powers, on the one hand, recognised the functional independence of branches of government---On the other hand, the principle of checks and balances focused on the desirability of ensuring that the Constitutional order, as a totality, prevented the branches of government from usurping power from one another---In such sense it anticipated the necessary or unavoidable intrusion of one branch on the terrain of another---No constitutional scheme could reflect a complete separation of powers: the scheme was always one of partial separation.

Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC) and 1996 (10) BCLR 1253 (CC) at para 109 ref.

(j) Judiciary---

----Separation of powers, doctrine of---Non-interference by judiciary in other branches of government---Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government---Courts must observe the constitutional limits of their authority---Judiciary should not interfere in the processes of other branches of government unless to do so was mandated by the Constitution, therefore it was not for the Court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfill responsibilities primarily entrusted to it---Courts ought not to blink at the thought of asserting their authority, whenever it was constitutionally permissible to do so, irrespective of the issues or who was involved---At the same time, and mindful of the vital strictures of their powers, courts must be on high alert against impermissible encroachment on the powers of the other arms of government.

Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC) and 2006 (12) BCLR 1399 (CC) at paras 37 & 38 ref.

W Trengove SC, D Mpofu SC, T Ngcukaitobi, J Mitchell and N Muvangua (Instructed by Godla and Partners Attorneys) for the Economic Freedom Fighters.

A. Katz SC, J De Waal, J Bleazard and T Mayosi (Instructed by Minde Schapiro and Smith Inc.) for the Democratic Alliance.

L G Nkosi-Thomas SC, G D Ngcangisa and M Musandiwa (Instructed by the State Attorney) for the Speaker of the National Assembly.

J J Gauntlett SC, K J Kemp SC, M du Plessis, S Mahabeer and S Pudifin-Jones (Instructed by the State Attorney) for the President.

W R Mokhari SC, H Slingers and M Kgatla (Instructed by the State Attorney) for the Minister of Police.

G Marcus SC and M Stubbs (Instructed by Adams and Adams) for the Public Protector.

C Steinberg and L Kelly (Instructed by Webber Wentzel) for Corruption Watch.

Corruption Watch (RF) NPC as Amicus Curiae.

Date of hearing: 9th February, 2016.

2016 S C M R 1

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

MUHAMMAD IJAZ AHMAD CHAUDHRY---Appellant

Versus

MUMTAZ AHMAD TARAR and others---Respondents

Civil Appeal No.461 of 2014, decided on 14th April, 2015.

(On appeal from the judgment dated 14-3-2014 of the Election Tribunal, Lahore passed in Election Petition No. 130 of 2013)

(a) Constitution of Pakistan--

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S. 78(3)(d)---Election for seat of National Assembly---Qualification for candidates---Sagacious, righteous, non-profligate, honest and Ameen---Fake bachelor's degree issued by a spurious foreign institution college---False declaration in nomination paper about bachelor's qualification---'Corrupt practice'---Election Tribunal found that the alleged bachelor's degree obtained by appellant/returned candidate from a foreign college/institution was fake---Validity---Evidence on record in form of correspondence by the foreign college showed that the college at first owned appellant as one its student but subsequently disowned him---Such contradiction in the college's stand proved it to be a spurious entity without any reliable record---Higher Education Commission of Pakistan attested the claimed bachelor's degree of the appellant without verifying the content of the courses that he studied or the creditworthiness of the claimed institution---Appellant's own knowledge about his course of study at the college exposed his claimed degree to be a sham and a hoax---Degree claimed by the appellant was at best an ornamental title rather than a testament of learning and formal instruction, as such the appellant made a dishonest and fraudulent statement in his nomination papers about his educational qualification---For doing so, appellant failed the requirements of rectitude and integrity prescribed in Art. 62(1)(f) of the Constitution--- Supreme Court declared election of appellant as Member National Assembly, illegal and void and directed the Election Commission of Pakistan to commence proceedings against appellant for committing 'corrupt practices' under S. 78(3)(d) of Representation of the People Act, 1976---Appeal was dismissed accordingly.

(b) Evidence---

----Document---Admission of document in evidence---Stage of proceedings---Any document that was genuine and relevant to the determination of a factual controversy may be admitted on record at any stage of the proceedings, whether original or appellate, so that justice may be done.

Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1992 SC 96 ref.

(c) Administration of justice---

----Every procedure that promoted the administration of justice was permissible unless it was expressly prohibited.

H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

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

----S. 64---Election Tribunal, procedure of---Admission of fresh/new evidence during proceedings---Not prohibited---No prohibition existed in the Representation of the People Act, 1976, against reception/allowing of fresh evidence by an Election Tribunal at any stage of its proceedings---Election Tribunal could devise its own procedure to promote the cause of justice---Election Tribunal could allow admission of documents in evidence at a belated stage of proceedings, provided it was done under a procedure that avoided prejudice to either party and complied with the rules of natural justice--- Election Tribunal could adopt any course of action to regulate its proceedings instead of following the technicalities of C.P.C., except some provisions specifically made applicable for limited purposes.

Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1992 SC 96; H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 and Umar Aslam v. Sumera Malik PLD 2007 SC 362 ref.

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

----S. 64---Election Tribunal, procedure of---Admission of fresh/new evidence during proceedings---Allowed subject to requirements of fairness and natural justice---Election Tribunal admitted fresh evidence submitted by petitioner during his examination-in-chief---Legality---No prohibition existed in the Representation of the People Act, 1976, against reception/allowing of fresh evidence by an Election Tribunal at any stage of its proceedings---After admitting new documents/evidence presented by petitioner, in the present case, the Election Tribunal gave the respondent an adjournment for two weeks to prepare his cross-examination of the petitioner, inter alia, on the said documents/ evidence---Election Tribunal entertained and considered the material filed by the respondent in rebuttal to the fresh evidence of petitioner including an opportunity both to cross-examine the petitioner and also to rebut the documentary material filed against his case---Such procedure adopted by Election Tribunal complied with the requirements of fairness and natural justice---Any prejudice resulting from the new documents that may have been suffered by the respondent was overcome by giving him an opportunity to rebut the same/which opportunity was duly availed---Admission of fresh evidence by the Election Tribunal, in the present, case was, thus, a fair decision---Appeal was dismissed accordingly.

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

----Ss. 52 & 67---Election Tribunal, decision of---Scope---Order passed by a competent authority placed before the Election Tribunal as evidence---Not permissible for an Election Tribunal to denounce such an order unless the same was set aside in accordance with law or if sufficient evidence on the record of the Election Tribunal disclosed jurisdictional defect or patent illegality in the order passed by the competent authority.

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

----S. 78(3)(d)---'Corrupt practices'---Scope---Making of a false statement---Submitting a false or incorrect declaration in nomination paper---Such practices amounted to the offence of 'corrupt practices' by a candidate under S. 78(3)(d) of the Representation of the People Act, 1976.

Najeeb-ud-Din Owaisi v. Aamir Yar 2011 SCMR 180 ref.

Khawaja Haris Ahmed, Senior Advocate Supreme Court for Appellant.

Shahzad Shaukat, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos.2 to 16.

Date of hearing: 14th April, 2015.

2016 S C M R 14

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mushir Alam and Maqbool Baqar, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

Versus

AZIZ-UR-REHMAN CHAUDHRY and another---Respondents

Civil Appeal No. 276-K of 2013, decided on 7th August, 2015.

(Against judgment dated 7-5-2013 of High Court of Sindh at Karachi, passed in C.P. No.D-1073 of 2009)

(a) Constitution of Pakistan---

----Arts. 185(3) & 199---Leave to appeal was granted by Supreme Court to consider whether Constitutional petition filed by respondent in the High court in view of judgment in case titled Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707, was maintainable.

(b) Pakistan International Airline Corporation Act (XIX of 1956)---

----S. 10---Civil Procedure Code (V of 1908), S. 11---Re-employment---Back benefits---Res-judicata, principle of---Applicability---Respondent accepted terms and conditions of his re-employment, continued to serve Airline Corporation for 13 years, until he retired and also accepted and received retirement benefits---Respondent, 19 years after his re-employment, assailed his terms and conditions before High Court, which petition was allowed---Validity---Claim of respondent for back benefits was hit by doctrine of past and closed transaction, as claim of various affectees including that of respondent had already been rejected by Supreme Court---In earlier proceedings, affectees including the respondent had alleged discrimination and sought back benefits on the ground that certain other affectees were allowed such back benefits---Respondent succeeded in obtaining order in question from High Court, by concealing rejection of his earlier claim by the Supreme Court---Judgment passed by High Court was in conflict with and violative of order passed by Supreme Court and was hit by principle of res judicata---Appeal was allowed.

Pakistan Defense Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and PIA Corporation v. Syed Suleman Alam Rizvi and others Civil Appeal No.213-K of 2010 dated 1-4-2015 ref.

Khalid Javed, Advocate Supreme Court for Appellant.

Respondent No.1 in person.

Date of hearing: 15th July, 2015.

2016 S C M R 18

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

ZAIGHAM ASHRAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 488 of 2015, decided on 19th August, 2015.

(Against the order dated 5-6-2015 of the Lahore High Court, Lahore passed in Crl. Misc. No.5654-B of 2015)

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

----S. 497---Bail---Plea of alibi taken at bail stage, relevance of---No hard and fast rule existed against considering plea of alibi at bail stage---While granting or refusing to grant bail to an accused person, the court was not required to see and consider the material/evidence collected in favour of the prosecution but also had to give proper attention to the defence plea taken by an accused person.

Khalid Javed Gillan v. The State PLD 1978 SC 256 ref.

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

----S. 497---Bail, refusal of---Words "reasonable grounds" contained in S. 497, Cr.P.C.---Meaning---Words "reasonable grounds" as contained in S. 497, Cr.P.C., required the prosecution to show to the court that it was in possession of sufficient material/evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of S. 497, Cr.P.C.

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

----S. 497---Bail, grant of---Burden of proof on accused---Scope---For getting the relief of bail accused only had to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he was entitled to avail the benefit of it.

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

----S. 497---Bail, grant/refusal of---Care and caution to be exercised by court when granting/refusing bail to an accused---To curtail the liberty of a person was a serious step in law, therefore, the judges should apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively---Such exercise should not be carried out in vacuum or in a flimsy and casual manner as that would defeat the ends of justice because if the accused charged, was ultimately acquitted at the trial then no reparation or compensation could be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject did not provide for such arrangements to repair the loss, caused to an accused person, detained in jail without just cause and reasonable grounds---Extraordinary care and caution should, thus, be exercised by the judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, 149, 337-F (iii) & 120-B---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-mutalahimah, criminal conspiracy---Bail, grant of---Further inquiry---Plea of alibi---Non-presence of accused at scene of occurrence accepted by the prosecution---Accused was initially implicated by the complainant for being present at the crime scene and directly firing at the deceased---During course of investigation, it was discovered that accused was in prison for some other offence at the time of the occurrence---As a result the charge sheet filed in the Trial Court contained Ss.109 & 120-B, P.P.C., meaning that the prosecution itself had relied upon the plea of alibi of the accused, and only charged him for abetment of the crime and criminal conspiracy, contradicting the stance of the complainant---Presence of accused at the crime spot at the time of commission of the crime, thus, stood excluded---Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the investigating agency based on documentary evidence with regard to the plea of alibi, the case of the accused became one of further inquiry, falling within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Ms. Bushra Qamar, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Zubair Ahmed Farooq, Additional PG and M. Hanif, SI, P.S. Malakwal for the State.

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for the Complainant.

Date of hearing: 19th August, 2015.

2016 S C M R 24

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Maqbool Baqar, JJ

NAZIM-UD-DIN and others---Appellants

Versus

Sheikh ZIA-UL-QAMAR and others---Respondents

Civil Appeal No.663 of 2010, decided on 7th October, 2015.

(Against the judgment dated 28-7-2009 of the Lahore High Court, Rawalpindi Bench, passed in C.R. No. 125 of 2002)

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

----S. 115---Revisional court, jurisdiction of---Scope---Revision petition against concurrent findings of fact by courts below---Ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there was misreading and non-reading of evidence on the record which was conspicuous, or where there was an error in the exercise of jurisdiction by the courts below and/or where the courts had acted in the exercise of its jurisdiction illegally or with material irregularity, the revisional court shall interfere and could upset the concurrent findings.

Federation of Pakistan through the General-Manager, N.W. Railway, Lahore v. Ali Ihsan PLD 1967 SC 249; Rozi Khan and others v. Nasir and others 1997 SCMR 1849; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Asmatullah v. Amanat Ullah through Legal Representatives PLD 2008 SC 155; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Mandi Hassan alias Mehndi Hussain and another v. Muhammad Arif PLD 2015 SC 137 and Iqbal Ahmed v. Managing Director Provincial Urban Development Board, NWFP Peshawar and others 2015 SCMR 799 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact recorded by courts below without considering important documents on record in their true perspective---High Court could aptly interfere with such concurrent findings in its revisional jurisdiction.

(c) Partition Act (IV of 1893)---

----Preamble---Specific Relief Act (I of 1877), S. 39---Suit for partition of joint property---Acquiescence, waiver and estoppel, rule of---Scope---Predecessor-in-interest of defendants admitting extent of her share (7/24) in joint property through a registered instrument---Effect---Defendants could not claim full ownership of joint property, when the registered instrument executed by their predecessor-in-interest, wherein extent of share in the joint property was admitted, was in the knowledge of the defendants---Defendants never sought cancellation of such registered instrument, thus, they were estopped from claiming any share in the joint property over and above their share (7/24)---Rule of acquiescence, waiver and estoppel was attracted in the present case and defendants were precluded from denying the co-ownership of the plaintiffs in the joint property---Appeal was dismissed accordingly.

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Appellants.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents.

Date of hearing: 7th October, 2015.

2016 S C M R 28

[Supreme Court of Pakistan]

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

SHARAFAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 575 of 2009, decided on 21st October, 2015.

(On appeal against the judgment dated 15-11-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1561 of 2005 and Murder Reference No.23-T of 2005)

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

----Ss. 7(a), (b) & (h)---Murder of police official to resist arrest---Re-appraisal of evidence---Death sentence, confirmation of---Accused was a proclaimed offender in many cases---Accused resisted his arrest by police, and started firing which caused the death of a police official---Crime empties recovered from the spot of occurrence matched with the weapon recovered from the accused---Five police officials appeared as eye-witnesses and during their cross-examination they remained firm on all major particulars of the case i.e. date, time and place of occurrence---Prosecution witnesses had no enmity with the accused to falsely implicate him in the present case---FIR was promptly registered i.e. thirty minutes after the time of occurrence, wherein accused was specifically nominated with a specific role---Such promptly lodged FIR excluded any chance of false implication---Prosecution had proved its case against the accused beyond any shadow of doubt---Death sentence awarded to accused was confirmed in circumstances---Appeal was dismissed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed Khan, Additional P.G. for Respondent.

Date of hearing: 21st October, 2015.

2016 S C M R 30

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Maqbool Baqar, JJ

SHAHID PERWAIZ---Appellant

Versus

Messrs GALAXO KLIN PAKISTAN LTD. and others---Respondents

Civil Appeal No. 31-K of 2013, decided on 22nd October, 2015.

(On appeal from judgment of High Court of Sindh, Karachi dated 25-9-2012, passed in C.P. No. 2940 of 2011)

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--

----S. O. 15(3)(f)--- Dismissal from service---Habitual late comer---Criteria for categorizing a worker as a habitual late comer at work--- Employer-company issued a show cause notice to appellant/worker, stating the facts that as to how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival had been marked on 223 days---During such period worker was also warned on 26 different occasions by sending him advisory letters---Worker did not deny the factum of delay in his attendance, but tried to justify it for different reasons---Employer-company held inquiry against the worker and dismissed him from service with immediate effect---Validity---Worker who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice/letters to him in such regard, was a habitual late comer and such negligent conduct on his part could not be condoned by the Court to the prejudice of his employer---Late coming of a worker approximately twice a month could not be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail---Punishment of dismissal from service awarded to the worker in the present case by employer-company was neither illegal nor arbitrary, but was according to the spirit of the law (Standing Order 15(3)(f) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968)---Appeal was dismissed accordingly.

Shahnshah Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Muhammad Humayun, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Date of hearing: 22nd October, 2015.

2016 S C M R 40

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

WASAL KHAN and others---Appellants

Versus

Dr. NIAZ ALI KHAN---Respondent

Civil Appeal No. 535 of 2015, decided on 30th September, 2015.

(On appeal from the judgment dated 13-6-2014 passed by the Peshawar High Court, Peshawar in Civil Revision No. 509-P of 2013)

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

----S. 24---Plaintiff to deposit one-third of the sale price (consideration) of the property in court---Practice (in lower courts) of using the phrase 'pre-emption money' instead of 'sale consideration'---Supreme Court observed that such practice was wrong and misleading and was a distortion of the statutory phrase "sale consideration" employed in S. 24 of the Pre-emption Act, 1987, and that such practice must be stopped henceforth.

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

----S. 24---Pre-emption suit---Plaint---Inadvertent error in mentioning the actual sale consideration of property---Bona fide mistake---Absence of mala fides---No undue benefit gained by pre-emptor---Pre-emptor in his plaint inadvertently mentioned the sale consideration paid by vendee to vendor as Rs. 14,00,000, instead of the actual figure of Rs.14,40,000 mentioned in the mutation---Trial Court ordered pre-emptor to deposit one-third of the sale consideration of the property in court---Pre-emptor deposited in court 1/3rd of the amount shown in the plaint i.e. one-third of Rs. 14,00,000---Vendee took the objection that pre-emptor made a short deposit in the court, as the amount to be deposited should have been 1/3rd of Rs. 14,40,000 mentioned in the mutation---Trial Court dismissed the pre-emption suit for non-compliance with order of the court to deposit 1/3rd of the actual sale consideration in court---Appellate Court allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court and remanded the case to Trial Court---Validity---Where a court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the pre-emptor who deliberately committed the default and it was not a bona fide mistake---In the present case, due to mistake of fact the draftsman/lawyer (for pre-emptor) inadvertently without any mala fide intent mentioned the sale consideration as Rs.14,00,000 , instead of Rs.14,40,000---For the correction of the same, the, pre-emptor promptly applied to the Trial Court for amendment of the plaint, which fact showed his bona fide intention---Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670 thus by not depositing the additional amount of Rs.13,330, he could not be held to be in deliberate non-compliance with the court order---Trial Court had not specifically directed pre-emptor to deposit 1/3rd of the sale consideration mentioned in the mutation---Court was duty bound to clearly tell the plaintiff/pre-emptor that he was required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc.---Once a wrong was committed by the Trial Court causing prejudice to the pre-emptor, then, the pre-emptor could not be visited with penalty of dismissal of his suit---Appellate Court had rightly set-aside judgment of Trial Court and allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court---Supreme Court directed that if the pre-emptor had not deposited so far the remaining amount of Rs.13,330 as worked out on the basis of 1/3rd of the total sale consideration of Rs.14,40,000, then he should deposit the same in Trial Court within twenty days---Appeal was dismissed accordingly.

(c) Administration of justice---

----Clear and speaking order/direction by court---Courts were under obligation to facilitate the litigant to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner---Any direction must be clearly laid down/shown in the order and the litigant should not be pushed into realm of guess work, where in an uncertain situation, he was unable to proceed and (did not know) in what manner he had to comply with the order of the court.

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

----S. 24---Plaintiff to deposit one-third of the sale price (consideration) of the property in court---Reasonable time must be given to plaintiff/pre-emptor to deposit such amount in court---In the present case, the Civil Judge was acting as MOD and was not a trial Judge, thus, the pre-emptor was required to apply to the Trial Court getting permission to deposit the amount in the court---Giving three days' time to the pre-emptor to deposit the amount in court was, therefore, marginal and harsh.

(e) Administration of justice---

----Error by court---Blame for such error cannot be shifted to a party to the case, in view of the well embedded principle that an act of court shall prejudice no one.

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

----S. 24---Plaintiff to deposit one-third of the sale price (consideration) of the property in court---Directions given by the Supreme Court to avoid unnecessary litigation on matters concerning deposit of one-third of the sale price (consideration) in court---Supreme Court directed that the Trial Court should calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if such documents were not available then the court should calculate the same through other reliable source, and then direct the vendee/preemptor to deposit a specific amount within a stipulated period; that such period for deposit must be reasonable; that the practice in lower courts of using the phrase 'pre-emption money' instead of 'sale consideration' should be stopped henceforth, and that the statutory phrase/words i.e. 1/3rd of the sale consideration should be invariably employed so that the responsibility of the vendee/preemptor was more specific and clearer.

Ahsan Hameed Lilla, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Mohsin Akhtar Kiyani, Advocate Supreme Court for Respondent.

Date of hearing: 30th September, 2015.

2016 S C M R 46

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

AMEER SOLANGI and others---Appellants

Versus

WAPDA and others---Respondents

Civil Appeal No.52-K of 2012, decided on 5th August, 2015.

(Against judgment dated 15-2-2012 of High Court of Sindh, Circuit Court, Hyderabad, passed in Constitution Petition No.D-433 of 2010)

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

----Preamble---Contract employees of Water and Power Development Authority (WAPDA)---No right of regularization in service---Contract employees in question were employed by WAPDA on contract basis for a specific project---Appointment letters of contract employees mentioned that they were employed on contract basis and shall have no right to claim regular absorption in WAPDA---Extension of contract period of said employees during the completion process of the project did not give them any right to claim regularization in WAPDA---High Court had correctly found that Sacked Employees (Reinstatement) Act, 2010 was not applicable to the contract employees in the present case---Appeal was dismissed accordingly.

Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101 ref.

Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants.

Anwar Hussain, Advocate Supreme Court for Respondents Nos.1, 4 and 5.

Date of hearing: 5th August, 2015.

2016 S C M R 48

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

Civil Petition No. 145 of 2015

(Against the judgment dated 2-1-2015 of the High Court of Sindh, Karachi passed in Const. P. No. D-5806 of 2014)

PROVINCE OF SINDH and others---Petitioners

Versus

LAL KHAN CHANDIO and others---Respondents

AND

Constitution Petition No.38 of 2015

AAMIR MAROOF AKHTAR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

AND

Civil Petition No.253 of 2015

(Against the judgment dated 27-11-2014 of the High Court of Balochistan, Quetta passed in C.P. No. 17 of 2011)

ATTA-UR-REHMAN---Petitioner

Versus

MUHAMMAD ASLAM BHOOTANI and others---Respondents

AND

CMA No.1435/15 in Civil Petition No. Nil of 2015

(Application for exemption from the certified copy of the judgment dated 27-11-2014 of the High Court of Balochistan, Quetta passed in C.P. No. 347 of 2011)

FEDERATION OF PAKISTAN M/O FOREIGN AFFAIRS through Secretary---Applicant

Versus

Malik MUHAMMAD SALEEM and others---Respondents

Civil Petition No. 145 of 2015, Constitution Petition No. 38 of 2015, Civil Petition No. 253 of 2015 and CMA No.1435 of 2015 in Civil Petition No. Nil of 2015, decided on 19th August, 2015.

(a) Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act (XV of 2014)---

----Ss. 2(sss), 58, 59, Sched. 1, Part D & Sched.III---Sindh Wildlife Protection Ordinance (V of 1972), Ss. 7, 40, First Sched. & Second Sched.---Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), First Sched.---Pakistan Trade Control of Wild Fauna and Flora Act (XIV of 2012), S. 27 & Preamble---Convention on International Trade in Endangered Species of Wild Fauna and Flora, Appendix II---Convention on the Conservation of Migratory Species of Wild Animals, Appendix II---Hunting of Houbara Bustard--- Contradictions and inconsistencies in the laws of Balochistan, Sindh, Punjab and the Republic of Pakistan with regard to permitting the hunting of the Houbara Bustard identified.

(b) Sindh Wildlife Protection Ordinance (V of 1972)---

----S. 40(1), First & Second Scheds.---Constitution of Pakistan, Art.199(1)(a)(i)--- Constitutional jurisdiction of the High Court---Scope---Laws for preservation and conservation of wildlife---Power of Provincial Government to add to or exclude from the First and Second Schedules to the Sindh Wildlife Protection Ordinance, 1972, any wild animal---Provincial Government could only exercise such power to advance the objective of the law, which was enacted for the "preservation, conservation and management of wildlife"---Decision of Provincial Government must be based on sound ecological principles and taken after a proper assessment of the population of the species---Exercise of power under a law which sought to preserve and conserve wildlife must be reasonably, fairly and justly exercised for the advancement of the purpose of the law---Where the Provincial Government's exercise of power under S. 40(1) of the Sindh Wildlife Protection Ordinance, 1972 was based on ulterior considerations or taken to exacerbate the threat faced by a specie it could validly be challenged under Art. 199(1)(a)(i) of the Constitution because in such a situation the government would not be acting in accordance with the law.

Airport Support Services v. Airport Manager 1998 SCMR 2268 ref.

(c) Sindh Wildlife Protection Ordinance (V of 1972)---

----S. 40(1), First & Second Scheds.---Constitution of Pakistan, Art.184(3)---Convention on International Trade in Endangered Species of Wild Fauna and Flora, Appendix II---Convention on the Conservation of Migratory Species of Wild Animals, Appendix II---Constitutional petition before the Supreme Court assailing the licences/permits granted to foreigners by the Provincial Government to hunt Houbara Bustard---Maintainability---Public interest litigation---Locus standi of petitioner---Present petition filed under Art. 184(3) of the Constitution was in the nature of public interest litigation and sought to prevent the decimation of the Houbara Bustard and save it from the machinations of the Federal and provincial governments, who were violating the laws of Pakistan and its international treaty obligations---In cases of public interest litigation, the Supreme Court did not require the petitioner to establish that he had the standing (locus standi) to file the etition---Constitutional petition was held to be maintainable accordingly.

(d) Sindh Wildlife Protection Ordinance (V of 1972)---

----S. 40(1), First & Second Scheds.---Convention on International Trade in Endangered Species of Wild Fauna and Flora, Appendix II---Convention on the Conservation of Migratory Species of Wild Animals, Appendix II---Licences/permits granted to foreigners by the Provincial Government to hunt Houbara Bustard---Legality---Provincial Forest and Wildlife Department issued a notification purportedly under S. 40(1) of the Sindh Wildlife (Amendment Act) 1993(sic.) taking away the protected status of the Houbara Bustard and permitted its hunting, stipulating that, "The hunting of Houbara Bustard would be allowed only with a special permit supported with a letter from Ministry of Foreign Affairs for allocation of an area"---Held, that the Provincial Government attempted to change the status of the Houbara Bustard pursuant to a notification purportedly issued in exercise of the powers conferred under S. 40(1) of the Sindh Wildlife Protection (Amendment) Act, 1993---Said Act did not even have S. 40, however, (assuming) even if the Provincial Government had exercised its powers pursuant to S. 40(1) of the Sindh Wildlife Protection Ordinance, 1972 where under it could "exclude from the Schedules any wild animal", then too it could not have changed the status of the Houbara Bustard from being a 'protected' bird to one that could be hunted because its numbers had deteriorated and its status was designated by experts as vulnerable and threatened---Evidence showed that the global population of the Houbara Bustard was declining, and globally it was under threat and vulnerable---Pakistan was a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and to the United Nation's Convention on the Conservation of Migratory Species of Wild Animals (CMS); under both said conventions the Houbara Bustard was protected---Government of Pakistan and the Provincial Governments obdurately persisted in the non-observance of the said conventions---Argument that the foreign dignitaries who hunted the Houbara Bustard brought money and spread their largesse in establishing schools, mosques, dispensaries, et cetera, was lamentable---Laws of Pakistan, its treaty obligations and Provincial laws were not saleable commodities---Supreme Court declared that the notification in question which took away the protected status of the Houbara Bustard and permitted its hunting was ultra vires the Sindh Wildlife Protection Ordinance, 1972 and consequently struck down; that neither the Federation nor a Province could grant licence/permit to hunt the Houbara Bustard---Supreme Court directed that the Federal Government should ensure that its obligations under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Convention on Migratory Species of Wild Animals (CMS), which had been recognized by Pakistani law, were fulfilled and it should issue requisite directions to the Provinces in such regard; that the Provinces should amend their respective wildlife laws to make them compliant with CITES and CMS and should not permit the hunting of any species which was either threatened with extinction or categorized as vulnerable---Order accordingly.

Society for Conservation and Protection of Environment (SCOPE) Karachi v. Federation of Pakistan 1993 MLD 230 and Tanvir Arif v. Federation of Pakistan 1999 CLC 981 ref.

(e) Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act (XV of 2014)---

----Preamble--- Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act (I of 2015), Preamble--- Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), Preamble---Sindh Wildlife Protection Ordinance (V of 1972), Preamble---Constitution of Pakistan, Arts. 9, 14, 20 & Preamble---Preservation and conservation of natural resources and species on Earth--- Significance---Environmental teachings of Islam---Duties of human beings as stewards (khalifah) of the earth for the preservation and conservation of natural resources and species---Scope---Preamble to the Constitution of Pakistan reminded (us) that Almighty Allah alone was the Sovereign, and the people of Pakistan were to exercise their authority as His trustees---Holy Quran provided the concept of human beings as vicegerents or stewards i.e. khalifa-fil-ard---Stewards, as opposed to absolute owners, could not use or exploit natural resources with abandon, nor hunt a species till its status became vulnerable or extinct---If any specie for want of habitat or as a result of hunting or exploitation was endangered or became extinct the khalifah violated his/her trust---Humans alone of all of the Almighty's creation had been bestowed with the responsibility to maintain balance and not to rupture the order of nature---According to the Quran actions that destroyed, devastated or impaired "His Creation" were prohibited---If a specie were to be hunted till it became extinct or vulnerable it would impair a person's ability to lead his/her life in accordance with religion and to practice it, thus violating Art. 20 of the Constitution---Human beings had to heed to their duties as stewards of the earth for the preservation and conservation of natural resources and to take care of Allah's creatures---In neglecting the environmental teachings of Islam one ignored his duty as His stewards (khalifah) towards His creation---Quranic verses describing nature and natural phenomena numbered about 750 which was approximately one eighth of the Holy Quran---As Allah's khalifah on earth human beings had a duty to look after the earth and all living things within it---Fundamental Right to life and to live it with dignity (Arts. 9 & 14 of the Constitution) was one lived in a world that had an abundance of all species not only for the duration of one's life but available for one's progeny too---Scientific studies established that if the earth became bereft of birds, animals, insects, trees, plants, clean rivers, unpolluted air, soil it would be the precursor of (human) destruction/extinction---Order accordingly.

Khalifa fil ard - surah al-an'am 6, verse 165; surah an-naml 27, verse 62; surah al-anam 6, verse 141; surah al-araf 7, verse 56; surah al-araf 8, verse 54; surah al-isra 17, verse 44; Seyyed Hossein Nasr, The Spiritual and Religious Dimension of the Environmental Crises, A Sacred Trust Ecology and Spiritual Vision published by The Temenos Academy, 2002, page 134 and Science within Islam; learning how to care for our world by Yunus Negus published in Islam and Ecology, 1992 ref.

Raja Muhammad Farooq, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in Const. Petition No. 38 of 2015).

Adnan Basharat, Advocate Supreme Court for Petitioners (in C.P. 253 of 2015).

Salman Aslam Butt, AGP, Aamir Rehman, Additional AGP and Syed Nayab Hassan Gardezi, Standing Council for the Federation on Court's Notice.

Ms. Rifat Butt, Dy. Legal Advisor and Naeem Cheema, DCP (P&I) for M/o Foreign Affairs.

Muhammad Ayaz Khan Swati, Additional AG for Government of Balochistan.

Mian Arshad Jan, Additional AG and Syed Muhammad Ali, Dy. Conservator Wild Life, Peshawar for Government of Khyber Pakhtunkhwa.

Razzaq A. Mirza, Additional AG for Government of Punjab.

Shehryar Qazi, Additional AG for Government of Sindh (also for Petitioner in C.P. 145/15).

Date of hearing: 19th August, 2015.

2016 S C M R 66

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUJAHID KAREEM and others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN through Manager and others---Respondents

Civil Petition No.1374 of 2015, decided on 14th September, 2015.

(On appeal against order dated 9-3-2015, passed by the Lahore High Court, Multan Bench, Multan, in FAO No.174 of 2010)

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

----S. 19(7)---Civil Procedure Code (V of 1908), O.XXI, Rr. 58 & 59---Auction of mortgaged property---Inordinate delay in challenging execution and auction proceedings despite having knowledge of the same---Effect---Dismissal of application for cancellation of auction proceedings---Petitioner stood as guarantor for a loan advanced by the Bank to the loanee---Bank filed a recovery suit against the loanee, which was decreed---During execution proceedings loanee expired and his legal heirs were joined as judgment debtors---On orders of the court mortgaged property of loanee was sold in auction proceedings---Petitioner/guarantor filed an application before Banking Court under S. 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with O. XXI, Rr. 58 & 89, C.P.C. for cancellation of sale of mortgaged property by contending that he was living abroad and had no knowledge of the recovery suit and the execution proceedings---Validity---Recovery suit filed by Bank against the loanee was not defended and ultimately ex parte decree was passed, which was never challenged by anyone in any proceedings---Petitioner/guarantor took no steps for liquidating the decretal amount to the Bank nor did he deposit the same in the Banking Court within the time provided by the law---Bank, in such circumstances, had to auction the mortgaged property for recovery of its dues under the decree---Petitioner/guarantor had knowledge of filing of the suit, execution proceedings and sale of mortgaged property but took no steps for stopping the auction of the mortgaged property---Decree was passed in the year 2001 but the guarantor deposited decretal amount in the year 2009, after the mortgaged property had been auctioned and such auction had been confirmed, registered and possession delivered to the auction purchaser---No reason had been assigned as to why petitioner/ guarantor initiated proceedings belatedly---Purpose of filing application for cancellation of auction proceedings seemed to be to linger on the matter and delay the recovery of the Bank dues for culmination of the proceedings---Contentions raised by petitioner/guarantor were not supported by the record---Petition was dismissed accordingly and leave was refused.

Hamid Ali Shah, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioners.

Sardar Riaz Karim, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Muhammad Hassan Bilal Buzdar, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 14th September, 2015.

2016 S C M R 69

[Supreme Court of Pakistan]

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

PAKISTAN TELECOMMUNICATION AUTHORITY (PTA), ISLAMABAD through Chairman---Petitioner

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED, HEADQUARTERS, G-8 MARKAZ, ISLAMABAD---Respondent

Civil Petition No. 2093 of 2015, decided on 26th October, 2015.

(On appeal from judgment dated 5-5-2015, passed by the Islamabad High Court, Islamabad, in FAO No.25/2012)

(a) Number Allocation and Administration Regulations, 2005(since substituted by the

Number Allocation and Administration Regulations, 2011)---

----Reglns. 18(1) & (2)--- Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S. 23(3)(c)(i)---Pakistan Telecommunication Rules, 2000, R. 9---Late payment of annual Number Allocation Fee---Imposition of penalty equivalent to 10% of the amount due [Regulation 18(2) of the Number Allocation and Administration Regulations, 2005]---Vires of---'Penalty' in fact a 'fine'---Pakistan Telecommunication Authority raised a claim of 10% penalty on the late payment of annual Number Allocation Fee by the respondent-licensee in terms of Regln. 18(2) of Number Allocation and Administration Regulations, 2005---Licensee contended that under the Pakistan Telecommunication (Re-Organization) Act, 1996, the Authority was only entitled to impose a fine for late payment, and it could not impose any penalty---High Court had held that Regln. 18(2) of Number Allocation and Administration Regulations, 2005, which provided for imposition of a penalty was ultra vires the Pakistan Telecommunication (Re-Organization) Act, 1996---Validity---Licensee, in the present case, failed to deposit the annual Number Allocation Fee for the years 2005 to 2011 and such payment was, in fact, belatedly made in the year 2011---Prima facie, the licensee had failed to comply with the terms of its licence---In terms of Regln. 18(2) of the Number Allocation and Administration Regulations, 2005, a licensee, who failed to make payment of the dues under Regln. 18(1) of the said Regulations was liable to suffer a penalty equivalent to 10% of the amount due, i.e. a peculiarity disadvantage resulting from a violation of the said Regulations, which a licensee was required to comply with in view of his Licence Agreement, and it also constituted a breach of S. 23 of the Pakistan Telecommunication (Re-Organization) Act, 1996---Penalty under Regln. 18(2) of the Number Allocation and Administration Regulations, 2005, when examined with reference to the subject and object of the Pakistan Telecommunication (Re-Organization) Act, 1996, the Pakistan Telecommunication Rules, 2000 and Number Allocation and Administration Regulations, 2005, and in the context in which the term "penalty" had been used, there was no manner of doubt that for all intents and purposes, it was a "fine"---Supreme Court observed that Regln. 18(2) of the Number Allocation and Administration Regulations, 2005 may not be happily worded and could have been constructed with a greater care and accuracy, but it was not ultra vires the Pakistan Telecommunication (Re-Organization) Act, 1996---Appeal was allowed accordingly and judgment of High Court was set aside.

(b) Words and phrases---

----"Penalty"--- Meaning and scope--- Penalty implied a loss, disability or disadvantage of some kind visiting a person or his property on account of his own actions or omissions---Penalty had both criminal and civil dimensions; in the former, it denoted a punishment imposed on a wrongdoer in the form of term of imprisonment or a sum of money exacted from him for violation of the law, while in civil law, it may arise from a breach of statutory duty or a contractual obligation with its inherent limitations and peculiar remedies.

Wharton's Law Lexicon, Fourteenth Edition by A.S. OPPE; Stroud's Judicial Dictionary of Words and Phrases, Fifth Edition Volume 4 by Johns S. James; Oxford Companion to Law by David M. Walker; Black's Law Dictionary, Tenth Edition by Bryan A. Garner; Law Dictionary with Pronunciations by James A. Ballentine 1948 Edition; N.K. Jain and others v. C. K. Shah and others AIR 1991 SC 1289 and R.S. Joshi and others v. Taluka Sahakari and others AIR 1977 SC 2279 ref.

(c) Words and phrases---

----"Fine"---Definition and meaning.

Stroud's Judicial Dictionary of Words and Phrases, Fifth Edition Volume 4 by Johns S. James; Oxford Companion to Law by David M. Walker; Black's Law Dictionary, Tenth Edition by Bryan A. Garner; Abdul Hameed Talib v. Additional District Judge PLD 2013 SC 775 and R.S. Joshi and others v. Taluka Sahakari and others AIR 1977 SC 2279 ref.

(d) Words and phrases---

----"Penalty" and "fine"---Synonymity and scope---Fine was a form of "penalty" which implied the payment of money by way of punishment usually imposed for breach of law---Fine was a pecuniary penalty---All fines were penalties but all penalties were not necessarily fines---Both the terms "penalty" and "fine" in a statutory construction may sometimes be used loosely but a true import of the term would obviously depend upon the subject matter and the object of the statutory instrument wherein such term had been employed that too with reference to the context in which it was used.

(e) Interpretation of statutes---

----Where the object and intention of a statute was clear it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance.

The Interpretation of Statutes 7th Edition by Sir Peter Mexwer ref.

(f) Interpretation of statutes---

----Courts should always lean in favour of validity of a statutory instrument and should be slow to strike it down, and an interpretation, which saved the law, should be adopted rather than holding a law to be invalid, unconstitutional or ultra vires.

Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others PLD 1975 SC 397; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and 6 others PLD 1997 SC 582; Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others PLD 2007 SC 133; Syed Aizad Hussain and others v. Motor Registration Authority and others PLD 2010 SC 983 and Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 ref.

(g) Number Allocation and Administration Regulations, 2005 [since substituted by the Number Allocation and Administration Regulations, 2011]---

----Reglns. 18(1) & (2)--- Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S. 23(3)(c)(i)---Late payment of annual Number Allocation Fee--- Imposition of penalty equivalent to 10% of the amount due--- Quantum of such penalty/fine was subject to maximum limit of Rs. 350 million mentioned in S. 23(3)(c)(i) of Pakistan Telecommunication (Re-Organization) Act, 1996.

Afnan Karim Kundi, Advocate Supreme Court along with Syed Rifaqat Hussain Shah, Advocate-on-Record, M. Khurram Siddiqui, Director (Law), PTA and Gul Hassan, Assistant Director (Law), PTA for Petitioner.

Azid Nafees, Advocate Supreme Court for Respondent.

Date of hearing: 26th October, 2015.

2016 S C M R 90

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

AFTAB MUNAWAR---Petitioner

Versus

NOVARTIS PHARMA PAKISTAN LTD.---Respondent

C.P. Nos.224-K and 225-K of 2014, decided on 19th August, 2015.

(Against the impugned order dated 21-4-2014 passed by the High Court of Sindh Circuit Court at Larkana in Civil Revision Applications Nos.13 and 14 of 2012)

Civil Procedure Code (V of 1908)---

----S. 21---Objection to jurisdiction of a court---Where such objection was not raised at the first instance, the defendant could not be penalized for the same---Section 21, C.P.C. did not entail any penalty in case an objection to jurisdiction of the court was not raised at the first instance---Provisions of S. 21, C.P.C. were directory in nature and could not be construed as mandatory.

Khalid Daudpota, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

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

Date of hearing: 19th August, 2015.

2016 S C M R 92

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

ANTI-CORRUPTION ESTABLISHMENT, PUNJAB through DG---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and others---Respondents

Civil Petition No. 1603 of 2012, decided on 31st August, 2015.

(On appeal from the judgment dated 19-9-2012 in W.P. No.3058/2011 passed by the Lahore High Court, Lahore)

(a) Administration of justice---

----Adjournments---Party had a right to be heard and be represented by counsel, but it could not be permitted to defeat the cause of justice by indefinite procrastination.

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

----Ss. 16A(a) & 18---Transfer of case from a court of ordinary criminal jurisdiction to Accountability Court, application for---Scope---Section 16A(a) of National Accountability Ordinance, 1999 enabled the Chairman, National Accountability Bureau (NAB) to apply to any court where a case involving an offence under the National Accountability Ordinance, 1999 was pending---Upon receipt of such an application submitted by the Chairman, NAB, the court before which the case was pending was obliged to transfer it---Section 16A(a) of National Accountability Ordinance, 1999 further provided that such transfer, "shall be deemed to be a reference under S. 18" of the said Ordinance.

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

----Ss. 16A(a) & 18---Transfer of case from Anti-Corruption Court to Accountability Court to benefit accused persons---Mala fides of Chairman, National Accountability Bureau (NAB)---Accused officials of respondent-company in collusion with officials of revenue department fraudulently transferred land measuring 1401 kanals to the company---Challan against accused-officials of the company was submitted before the Special Judge, Anti-Corruption---Company applied to Chairman, NAB to transfer the case from Anti-Corruption Court to Accountability Court on the grounds that the company itself was a victim of fraud in relation to the subject land; that a property dealer in connivance with revenue officials prepared forged documents to sell the subject land to the company, and consequently committed corruption and corrupt practices and that the case should be transferred to the National Accountability Bureau (NAB) for an impartial investigation---Chairman, NAB submitted application before the Special Judge, Anti-Corruption for transferring the case, and consequently the case was transferred to Accountability Court---Accountability Court exonerated the accused officials of the company---Held, that record of present case showed that the very day the company submitted an application before the Chairman, NAB, the latter wrote to the court of Special Judge, Anti-Corruption for transfer of the case without determining the merit of the company's application or conducting any inquiry/investigation---Contents of application submitted by the Chairman, NAB before Special Judge, Anti-Corruption, were the same as the contents of the application submitted by company before the Chairman, NAB---Chairman, NAB, in his application before the Special Judge, Anti-Corruption made a definite statement to the effect that the property dealer in connivance with the revenue officials had defrauded management of the company in the purchase of subject land---Such a conclusion could not have been arrived at without first having investigated the matter, and it was clear from the record that NAB did not investigate the matter nor in fact had the opportunity to do so--- Section 16A(a) of the National Accountability Ordinance, 1999 stipulated that the transfer of a case shall be deemed to be a reference under S. 18 of the said Ordinance, but such provision was intentionally disregarded in the present case as some of the nominated accused were exonerated by NAB itself---Company admitted that subject land had been illegally transferred in its name, but NAB simply presumed that neither the company nor any of its accused-officials were responsible for the same---Application submitted by the company before Chairman, NAB stated that an amount of eighty five million rupees had been paid to the property dealer, but there was nothing on the record to confirm the same, and such unsubstantiated statement was accepted by the Chairman, NAB---Land revenue authorities maintained property records and admittedly in respect of subject land the same had been tampered with, which had adversely affected a number of innocent persons, but no attempt to properly prosecute the culprits was made in the present case---Such circumstances showed that Chairman, NAB had exercised his discretion malafidely in getting the case transferred from Anti-Corruption Court to Accountability Court---Supreme Court transferred the complete record of the case (back) to the Special Judge, Anti-Corruption and held that exoneration of accused-officials of the company by NAB was of no legal effect and shall be disregarded---Supreme Court directed that prima facie Chairman NAB, and possibly other officers of NAB as well, misused their official positions and authority to extend undue benefit/favour to the company and its accused-officials, therefore, NAB should investigate the matter of the application submitted by the then Chairman NAB under S. 16A(a) of National Accountability Ordinance, 1999 before the Special Judge Anti-Corruption---Appeal was allowed accordingly.

Razzaq A. Mirza, Additional AG Punjab, Zubair Ahmed Farooq, Additional PG Punjab and Muhammad Asif Anjum, Dir (L) ACF for Petitioner.

Sajid Ilyas Bhatti, DAG on Court's Notice.

Fauzi Zafar, DPG, NAB for Respondents Nos.1 to 3.

M. S. Khattak, Advocate-on-Record and Gohar Ali Khan, Advocate (with court permission) for Respondents Nos.4, 5, 12 and 13.

Nemo for other Respondents.

Date of hearing: 31st August, 2015.

2016 S C M R 101

[Supreme Court of Pakistan]

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

PROVINCE OF SINDH through Chief Secretary and 8 others---Appellants

Versus

Syed KABIR BOKHARI---Respondent

Civil Appeal No.1481 of 2007, decided on 11th August, 2015.

(On appeal against the Judgment dated 16-6-2007, passed by the High Court of Sindh, Karachi, in C.P. No. D-1549 of 2005)

(a) Karachi Development Authority Order (V of 1957)---

----Art. 52-A--- Allotment of amenity land for commercial use---Legality--- Cancellation of allotment order and payment of compensation to allottee---Disputed plots were allotted/leased out to the respondent/allottee for commercial use for a period of 99 years through an open auction in the year 1976---Allottee paid the full occupancy value of the disputed plots and was also given possession of the same---Subsequently it transpired in the year 2005 that the master plan for the scheme did not contain the disputed commercial plots, and they had been illegally carved out from an amenity plot---Consequently show cause notices were issued to the allottee and allotment order of disputed plots was cancelled on the ground that the same was ab initio void and illegal and no compensation was paid to the allottee---Legality---Admittedly in the master plan for the scheme there was no existence of the disputed commercial plots, and the land they had been carved out of was amenity land meant for public use and not for commercial use---Allotment of amenity plot/land for commercial use was directly in conflict with Art. 52-A of the Karachi Development Authority Order, 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use---Admittedly, in the present case, there was no order by the competent authority to sanction the use of amenity land for commercial purposes---Furthermore allotment of disputed plots was made in the year 1976 but despite having possession, the allottee took no steps for almost 29 years to raise construction thereon and left them as a bare site---Fact of non-use of disputed plots by the allottee reflected heavily against him and showed that very purpose of allotment of disputed plots was other than the use for which the allottee bid for the plots, however, the allottee could not be squarely blamed for illegal and unlawful conduct of officials of the relevant Development Authority in offering the amenity land to him for commercial use---Allottee admittedly paid a substantial amount in the shape of occupancy value/price of disputed plots and thus could not be deprived of his funds paid to the Development Authority---Supreme Court directed the Provincial Government and relevant City District Government to refund to the allottee all the amount of occupancy value of disputed plots along with markup at the rate of 18% per annum from the date of the receipt of occupancy value/price of land until it was actually paid to the allottee---Appeal was partly allowed accordingly.

(b) Equity---

----Principles---Compensation to citizens on account of unlawful/illegal conduct of Government or officials of its departments---Government and its departments were bound to act justly and fairly with the citizens of the country---Where as a result of the illegal and unlawful conduct of the government and/or officials of its departments, any loss was caused to a citizen of the country, same had to be appropriately compensated---Such principle was a fundamental rule and also a principle of equity.

Qasim Mirjat, Additional A.G. Sindh and Raja Abdul Ghafoor, Advocate-on-Record for Appellants Nos.1, 4 and 6 to 9.

Syed Jamil Ahmed, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants Nos.2, 3 and 5.

Dr. A. Basit, Senior Advocate Supreme Court for Respondent.

Date of hearing: 10th February, 2015.

2016 S C M R 108

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

M.C.B. BANK LIMITED, KARACHI---Petitioner

Versus

ABDUL WAHEED ABRO and others---Respondents

Civil Petition No. 1702 of 2015, decided on 30th September, 2015.

(On appeal against the judgment dated 26-5-2015 passed by the High Court of Sindh, Karachi, in C.P. No. D-1306 of 2012)

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

----S. 46---Constitution of Pakistan, Arts. 10A & 185(3)---Inquiry proceedings, witnesses of---Worker's right of cross-examining witnesses---Right to fair trial---Due process of law---Worker not afforded opportunity to cross-examine witnesses during inquiry---Effect---Dismissal order of worker converted into stoppage of increments for three years---Worker, who was performing his duties as a cashier at a Bank, was dismissed from service on the allegation of embezzlement/misappropriation---Labour Court ordered worker's reinstatement in service on the ground that during the inquiry proceedings conducted by the employer-Bank six witnesses were produced, but the worker was allowed to cross-examine only one such witness---Appellate Tribunal maintained reinstatement order passed by Labour Court but ordered stoppage of worker's increments for three years---High Court maintained order passed by Appellate Tribunal---Validity---Perusal of the record revealed that the worker had not been afforded reasonable opportunity of defending himself as it was quite evident that six witnesses were produced during the inquiry, but the worker was afforded the opportunity of cross-examining only one witness---Opportunity of fair trial had not been afforded to the worker by depriving him his right of cross-examining the witnesses as such it could be held that principles and procedures of due process of law and fair trial had not been followed, which were against the principles of natural justice---Supreme Court maintained orders passed by Appellate Tribunal and High Court and observed that it was the prerogative of the management of the employer-Bank to decide the designation/ posting of the worker in accordance with their norms and indoor management.

Muhammad Ataullah v. Islamic Republic of Pakistan and 2 others 1999 SCMR 2321 ref.

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

----S. 6---Enactment repealed by any Central Act---Effect of repeal---Scope---Section 6 of the General Clauses Act, 1897, operated in such a manner that it allowed for the effect of an enactment repealed by any Central Act to continue even after such repeal---Section 6 of the General Clauses Act, 1897, did not call for the revival of a repealed law but rather imputed finality to actions already undertaken.

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

----S. 46---Industrial Relations Act (IV of 2008), S. 87---General Clauses Act (X of 1897), S. 6---Effect of repeal of Industrial Relations Ordinance, 2002---Scope---Grievance application/appeal filed under the Industrial Relations Ordinance, 2002---Repeal of Industrial Relations Ordinance, 2002 by way of Industrial Relations Act, 2008 during pendency of such grievance application/appeal---Effect---Such application/appeal would continue to be governed by the Industrial Relations Ordinance, 2002 in terms of S. 6 of the General Clauses Act, 1897.

Air League of PIAC Employees through President v. Federation of Pakistan M/o Labour and Manpower Division, Islamabad and others 2011 SCMR 1254 distinguished.

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

Nemo for Respondents.

Date of hearing: 30th September, 2015.

2016 S C M R 116

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ

MUHAMMAD AMIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.165 of 2010, decided on 16th November, 2015.

(Against the judgment dated 21-7-2009 passed by the Lahore High Court, Lahore in Criminal Appeal No.367 of 2004 and Murder Reference No.441 of 2004)

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Absence of premeditation to murder---Prosecution witness contradicting the complainant---Incomplete compromise between legal heirs of deceased and accused---FIR itself stated that accused had not straightaway launched an assault upon the deceased, but the same was preceded by an altercation and exchange of abuses at the spot, which showed that the situation had taken an ugly turn at the spot in the absence of any premeditation on part of the accused---Complainant was not an eye-witness to the occurrence---According to the FIR, the complainant stated that he was informed about the incident by a witness, however said witness contradicted the complainant during trial by stating that he did not see the occurrence---Another factor having bearing upon the question of sentence of accused was that the husband of the deceased, on his own behalf as well as on behalf of minor children of the deceased, had forgiven the accused and entered into a compromise, which compromise could not be given effect by courts below as it was incomplete--- Such incomplete/partial compromise may have relevance to the question of sentence of an accused in a case of Ta'zir---Supreme Court, in such circumstances, reduced accused's sentence of death to imprisonment for life---Appeal was disposed of accordingly.

Abdul Ghaffar and others v. The State 2015 SCMR 1064 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd--- Death as Ta'zir--- Partial compromise--- Effect--- Partial compromise may not have any bearing upon conviction of an accused person in a case of Ta'zir but it may have, in the circumstances of a given case, some relevance to the question of sentence in such a case.

Abdul Ghaffar and others v. The State 2015 SCMR 1064 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Muhammad Sarwar Sindhu, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 16th November, 2015.

2016 S C M R 119

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Ejaz Afzal Khan and Mushir Alam, JJ

Dr. Professor M.A. CHEEMA, SURGEON, PIC, LAHORE---Petitioner

Versus

TARIQ ZIA and others---Respondents

Civil Petition No. 718 of 2014, decided on 10th September, 2015.

(On appeal from judgment of Lahore High Court, Lahore, dated 30-1-2014, passed in Civil Revision No. 1460 of 2005)

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 2---Suit for damages---Death of patient in hospital due to the alleged negligence of hospital and concerned doctors---Application filed by defendant under O. XVI, Rr. 1 & 2, C.P.C. for summoning of officials of the hospital for production of record of the deceased patient---Civil Court while allowing such application, treated the same as an application for additional evidence, on the ground that record of deceased patient was helpful for just decision of the case---Validity---Order passed by Civil Court, which was discretionary in nature, was fully justified on the basis of the facts of the present case---Appeal was allowed accordingly.

Babar Bilal, Advocate Supreme Court for Petitioner.

Mudassar Khalid Abbasi, AAG for Respondent No.4.

Ex parte for Respondent No.3.

Date of hearing: 10th September, 2015.

2016 S C M R 121

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Qazi Faez Isa and Maqbool Baqar, JJ

SUPERINTENDENT, CENTRAL EXCISE, SHEIKHUPURA---Appellant

Versus

FAUJI SUGAR MILLS, SANGLA HILLS, SHEIKHUPURA and others---Respondents

Civil Appeal No.1348 of 2006, decided on 18th November, 2015.

(On appeal from the judgment dated 10-3-2005 in C.A. No.3/2002 passed by the Lahore High Court Lahore)

(a) Tax/duty---

----Duties and taxes could not be imposed/charged on the basis of assumptions or conjecture.

(b) Central Excises Act (I of 1944)---

----S. 12A & First Sched.---S.R.O. No. 455(I)/96 dated 13-6-1996---S.R.O. No.456(I)/96 dated 13-6-1996---Manufacturing of cane sugar---Zero excise duty--- Contradictory S.R.Os. open to different interpretations---Interpretation favourable to tax payer would prevail---SRO issued later in time would be applicable---Object of S.R.O. No.455(I)/96 dated 13-6-1996 was to encourage manufacturers of sugar to export a certain quantity of the sugar produced, and if they did so then no excise duty would be payable on it and if they exported less than the stipulated minimum they would have to pay excise duty on the quantity which fell below the said minimum quantity of sugar at the prescribed rate---Federal Government also issued S.R.O. No. 456(I)/96 on the very same date as S.R.O. No. 455(I)/96, i.e. 13th June, 1996, and both said SROs stated that they would come into effect on 13th June, 1996---Both said SROs were in respect of the quantum of excise duty payable on the very same kind of sugar (cane sugar) that was produced---S.R.O. No. 455(I)/96 brought down the rate of excise duty to "Nil", or in other words, no excise duty was payable---Two SROs in question contradicted each other with regard to the matter of 'cane sugar' and the contradiction therein could not be reconciled---High Court was correct in finding that latter S.R.O. 456(I)/96 was beneficial to the tax payer/manufacturer and since apparently the provisions of the two SROs [i.e. S.R.O. No. 455(I)/96 and S.R.O. No. 456(I)/96], were contradictory which could not be reconciled, the tax payer/manufacturer was justified in seeking application and protection of the latter SRO; that the manufacturer sought application and protection of the S.R.O. No. 456(I)/96 which though issued on the same day as S.R.O. No. 455(I)/96, was obviously issued latter in time, which was evident from its number---S.R.O. 456(I)/96 brought down the excise duty to "Nil", therefore, no excise duty could be chargeable even if the manufacturer in question did not export any sugar in the said period---Judgment of the High Court did not call for any interference---Appeal was dismissed accordingly.

Mehran Associates Ltd. v. Commissioner of Income Tax 1993 PTD 69 and Government of Sindh v. Muhammad Shafi PLD 2015 SC 380 ref.

(c) Statutory Regulatory Order (SRO)---

----Contents of--- Whenever the Federal Government in exercise of its powers issued SROs, the same should be intelligible and must not be open to misinterpretation or to more than one meaning.

Sheikh Izhar-ul-Haq, Advocate Supreme Court for Appellant.

Malik Shakil-ur-Rehman, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Muhammad Azam Chattha, Legal Advisor for Respondent No.1.

Ex parte for Respondents Nos.2 and 3.

Date of hearing: 9th November, 2015.

2016 S C M R 134

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

UNIVERSITY OF HEALTH SCIENCE, LAHORE through Vice-Chancellor and others---Petitioners

Versus

ARSLAN ALI and another---Respondents

Civil Petition No. 245-L of 2014, decided on 17th June, 2014.

(On appeal against the order dated 12-12-2013 passed by the Lahore High Court, Multan Bench, Multan in W. P. No. 13935 of 2013)

(a) Educational institution---

----Medical College--- Admission--- Seats reserved for disabled candidates---Disability of candidate, proof of--- Medical certificate issued by a specialist working in a Government hospital as proof of disability---Relevance---Medical Board constituted by the Chairman, Admission Board, in the present case, found that disability of respondent-candidate was not of a category so as to make him eligible for admission on the reserved seat, despite the fact that he had submitted the certificate of his disability---Validity---Relevant Rules and Regulations for seats reserved for disabled candidates provided that candidate applying for such seat was required to attach a certificate from a specialist working in a Government hospital regarding the disability, however the Medical Board constituted by the Chairman Admission Board would make the final decision about the eligibility of the candidate for admission on the seat reserved for disabled students---Decision of the Medical Board in such regard was final---Medical Board, in the present case, found that the respondent-candidate did not qualify for the category of reserved seats for disabled candidates, and according to the relevant rules and regulations such decision of the Medical Board was final---Appeal was allowed accordingly with the observation that rules, regulations and criteria were to be interpreted by the University authorities itself and the Courts should avoid interpreting same.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 ref.

(b) Educational institution---

----Admission--- Examination--- Criteria laid down in University prospectus, interpretation of---Non-interference by Courts---In matters of admission and examination in educational institutions, the University authorities concerned were the sole judges of the criteria laid down in the prospectus---Courts in such matters desist from interfering as it would create difficulties for the institutions to run their affairs in an appropriate manner according to their rules and regulations.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 ref.

Rasaal Hasan Syed, Advocate Supreme Court for Petitioners.

Noor M. Khan Chandia, Advocate Supreme Court for Respondent No.1.

Date of hearing: 17th June, 2014.

2016 S C M R 139

[Supreme Court of Pakistan]

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

MURAD ALI KHAN---Petitioner

Versus

VICE CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and others---Respondents

Civil Petition No. 502 of 2014, decided on 24th October, 2014.

(Against the judgment dated 18-3-2014 passed by the Lahore High Court Bahawalpur Bench in ICA No.9/2011/Bwp)

Educational institution---

----Medical College---Admission on reserved seat---Criteria for selection on reserved seat, interpretation of---Relevant prospectus of the Medical College, in the present case, specified that candidate to be selected for reserved seat "must be Cholistani by birth and should have actual residence in Cholistan"---Words " by birth" used in the prospectus could not be interpreted to include a candidate who only had a domicile of Cholistan (but was not born in Cholistan)---Courts below had rightly concluded that words "by birth" would become meaningless, if they were interpreted to include Cholistanis by domicile, even where they were born outside Cholistan---Such conclusion was consistent with the letter and spirit of the prospectus, which appeared to be providing encouragement to those who were born in Cholistan---Petition for leave to appeal was dismissed accordingly.

Zahoor ul Haq Chishti, Advocate Supreme Court for Petitioner.

Rasool Hussain Syed, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Sardar M. Aslam, Advocate Supreme Court for Respondent No.3.

Date of hearing: 24th October, 2014.

2016 S C M R 141

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

Civil Misc. Application No.3704 of 2015 in CMA No.4341 of 2014

in CMA No.3854 of 2014 in Suo Motu Case No.3 of 2009

(Reply of Syed Ali Zafar, Advocate Supreme Court to the Show Cause Notice issued to him in compliance of order dated 9-4-2015 passed in CMA No.3854/14 etc.)

AND

Civil Misc. Application No.3708 of 2015 in Civil Review Petition No.Nil/15 in CMA No.4341/14 in CMA No.3854/14 in SMC No.3/09

(For permission to file and argue the CRP filed against the order dated 31-3-2015 passed in CMA No.3854 of 2014 etc.)

Syed ALI ZAFAR, ADVOCATE BAHRIA TOWN (PVT.) LTD.---Applicant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

AND

Civil Misc. Application No. 3853 of 2015 in Civil Review Petition No.Nil/15 in CMA No.4341/14 in CMA No.3854/14 in SMC No.3/09

(For permission to file and argue the CRP filed against the order dated 9-4-2015 passed in CMA No.3854 of 2014 etc.)

Syed ALI ZAFAR, ADVOCATE BAHRIA TOWN (PVT.) LTD.---Applicant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Misc. Application No.3704 of 2015 in CMA No.4341 of 2014 in CMA No.3854 of 2014 in Suo Motu Case No.3 of 2009, Civil Misc. Application No.3708 of 2015 in Civil Review Petition No.Nil/15 in CMA No.4341/14 in CMA No.3854/14 in SMC No.3/09 and Civil Misc. Application No. 3853 of 2015 in Civil Review Petition No.Nil/15 in CMA No.4341/14 in CMA No.3854/14 in SMC No.3/09 decided on 3rd September, 2015.

(a) Supreme Court Rules, 1980---

----O. IV, R. 30---Constitution of Pakistan, Art. 10A---Right to fair trial---Scope---Advocate of the Supreme Court guilty of misconduct or conduct unbecoming of an Advocate---Disciplinary action initiated by the Supreme Court under O. IV, R. 30 of Supreme Court Rules, 1980---Constitutionality---Order IV, R. 30 of Supreme Court Rules, 1980 ensured the dignity and high standard of Senior Advocates, Advocates of the Supreme Court and Advocates-on-Record and if they were "guilty of misconduct or conduct unbecoming of an Advocate, with regard to any matter pending in the Court" disciplinary action could be taken against them, "including suspension and removal from practice of the Court", after affording them "an opportunity of oral hearing"---Order IV, R. 30 of Supreme Court Rules, 1980, thus, could not be categorized as contrary to Art. 10A of the Constitution---Rights guaranteed to Advocate of the Supreme Court, in the present case, had been fully secured, and no arbitrary or hasty decision had been taken against him---Advocate of the Supreme Court in question availed every opportunity to explain himself, submitted a written explanation, submitted a reply to the show cause notice, and argued at length for almost five hours, ensuring complete and utter fairness and due process requirements---Order accordingly.

(b) Supreme Court Rules, 1980---

----O. IV, R. 30---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Rr. 159, 164, 166 & 172---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 54---Disciplinary action initiated by the Supreme Court against an Advocate of the Supreme Court---Suspension of licence to practice as an Advocate of the Supreme Court---Grave professional misconduct---Hampering administration of justice---Conduct unbecoming of an Advocate---During proceedings of a case before the Supreme Court, an application was submitted to the Court on behalf of Advocate, Supreme Court in question containing certain allegations of bias against a judge of the Supreme Court, who was part of the Bench hearing the case---Purpose of said application was to indefinitely delay the case, to intimidate judges and create uncalled for controversy---Advocate, Supreme Court in question could not absolve himself of any responsibility by claiming that application in question was filed by an associate of his law firm, without the former's signature, direction or involvement---Contents of the said application made it very clear that it was drafted by or issued on the instructions of the Advocate, Supreme Court in question, and he was trying to make an associate of his law firm a scapegoat---Contents of said application were extensively and prominently published in the media, which publication was disrespectful of a judge of the Supreme Court and of the Institution---Advocate, Supreme Court in question committed grave professional misconduct, and if at all he had any apprehension about any judge hearing his case he should have adopted a legal course to have it redressed, which he did not do in the present case---Advocate, Supreme Court could not cite a single reason why the Judge of the Supreme Court, who was part of the Bench hearing his client's case, would be biased or prejudiced towards the client---Conduct of Advocate, Supreme Court demonstrated that he had overzealously pursued his client's interest/desires/whims rather than attending to the case as a professional; he forsook his duty to the Court and the conduct expected of an advocate---Advocate, Supreme Court showed no regret, let alone remorse, throughout the proceedings of the case, despite being provided with repeated opportunities---Conduct of the Advocate, Supreme Court had demeaned the noble profession of law, hampered the administration of justice---Advocate, Supreme Court committed grave professional misconduct as he used inappropriate measures to have the case adjourned thus wasting the Court's time and public resources; left the case unattended midstream; authored the application in question, but pretended to have no knowledge about it; was oblivious of the concepts of legal authorizations and liability; took shelter behind the affidavit of his associate, and was responsible for, knew or condoned the publication of his application in the media---Advocate, Supreme Court, thus, breached the stipulated Canons of Professional Conduct and Etiquette of Advocates, and in particular violated Rr. 159, 164, 166 & 172 of Pakistan Legal Practitioners and Bar Councils Rules, 1976---Ordinarily under the given circumstances of the present case an advocate could be barred from practicing before the Supreme Court forever, however, as this was the first transgression of Advocate, Supreme Court in question, therefore as a matter of grace the Supreme Court suspended his licence as Advocate Supreme Court for one year rather than removing his name from the Court's Roll of Advocates---Supreme Court observed that such concession had been shown to enable Advocate, Supreme Court in question to reflect upon his conduct, and if after the expiry of one year, and provided he had learnt to understand the responsibilities of his profession and expressed remorse, he may apply to the Supreme Court to have his licence to practice before the Supreme Court restored; that it was in the interest of both the Bench and the Bar for advocates to uphold at all times the dignity and high standards of their profession and abide by the prescribed canons of professional conduct and etiquette---Order accordingly.

Syed Ali Zafar, Advocate Supreme Court in person on Court's Notice (in CMA 3704/15 also as applicant in CMAs 3708 and 3853 of 2015).

Abdul Latif Afridi, Advocate Supreme Court voluntarily appeared.

Date of hearing: 3rd September, 2015.

2016 S C M R 154

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Gulzar Ahmed and Maqbool Baqar, JJ

MAQBOOL AHMED LEHRI and another---Petitioners

Versus

NAB and another---Respondents

Civil Petitions Nos.51 and 57 of 2015, decided on 9th October, 2015.

(Against the judgment dated 12-1-2015 of the High Court of Balochistan, Quetta passed in C.Ps. Nos. 501 and 504 of 2014)

(a) 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), 5(1), 5(2), 5(3), 10 & 16---Constitution of Pakistan, Arts. 24 & 185(3)---Land acquired by Provincial Government for public purpose---Unutilized part of acquired land allotted to a private person on lease --- Fraudulent and unlawful transaction---Land 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 which remained unutilized ("subject land') and was reserved for the future expansion of the bridge, was purportedly allotted to a private person by the Development Authority---Legality---Admittedly subject land/unutilized 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 Cl. 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 Cl. 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---Different provisions of the Balochistan Land Lease Policy, 2000, including those relating to the maximum duration of lease, determination of yearly rate of rent, standards of transparency, prohibition against assignment/sub-letting or transfer of the lease land, etc. were trampled in the present case---Not utilizing the subject land for public purpose and selling the same to a private person was violative of the object, spirit, principles 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 person 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---Subject land was sold at a grossly inadequate price---Allotment of subject land to purported allottee was effected 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.

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

----S. 9---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Art. 185(3)---Ad interim bail, recalling of---Land acquired by Provincial Government for construction of a bridge---Unutilized part of acquired land allotted to a private person by Chairman, Development Authority/accused---Misuse of authority for personal gain---Fraudulent and unlawful transaction---Involvement and persistent interest of the accused in the present matter from the very beginning could be seen, inter alia, from the facts that it was he who, as Mayor of Municipal Corporation, despite the fact that subject land did not belong to the Municipal Corporation, forwarded the recommendation of the Municipal Engineer for leasing the land in favour of purported allottee and for executing the agreement accordingly, and that, the approval was granted on recommendation of the accused---Purported allotment letter and the purported lease deed was also executed by the accused---Execution of the sale deed remained pending for about seventeen (17) months after purported allottee was finally allowed/advised to deposit the sale price, and was purportedly placed before the Governing Body, Development Authority, immediately upon accused assuming the office of the Chairman, Development Authority, by way of "ex-agenda item", where approval of the sale was purportedly obtained, despite the earlier adverse decision of the Governing Body, not to sell the land---Subject land was doled out at the rate purportedly assessed six years earlier, and to further unduly favour the beneficiary the larger portion of the land was designated as residential, to which category lower rate was applied---Such misuse of the authority by the accused, it appeared, was not just to benefit the purported allottee, but was so exercised for the benefit of a real brother and two cousins of the accused, in whose favour the land was subsequently transferred---Prosecution had been able to make out, a prima facie, case of the existence of dishonest intention of personal gain on the part of the accused, whereas the accused not only failed to make out a good prima facie ground for grant of bail but also failed to demonstrate that the reference filed against him had been filed with ulterior motive for causing injury to his reputation, and not for furthering the ends of justice---Order of High Court, whereby ad interim bail granted to accused was recalled, did not call for any interference---Petition for leave to appeal was dismissed and leave was refused accordingly.

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

----S. 9---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Art. 185(3)---Ad-interim bail, confirmation of---Land acquired by Provincial Government for construction of a bridge---Unutilized part of acquired land illegally allotted to a private person---Absence of personal benefit---No conscious decision or order made by accused in relation to the illegal allotment---Allegations against accused were that he wrote letters to purported allottee and that he bifurcated the land into commercial and residential categories and designated a larger portion thereof as residential to benefit the purported allottee; that accused neither confirmed deposit of full value/price of the land before executing the subject sale deed, nor did he advise the Finance Branch for recovery of the balance sale consideration amount---Prosecution failed to make out a prima facie reasonable case to charge the accused for an offence under S. 9 of the National Accountability Ordinance, 1999---Through the letters written to the purported allottee, the accused neither made any conscious order or decision nor has he otherwise made any order or decision in the matter---On the contrary, through one of the letters, he informed purported allottee that the determination of the value of the land fell within the purview of the Governing Body of the Development Authority, and merely advised him to deposit 5% of the "tentative cost" at the previously agreed rates, so that the matter may be placed before the Governing Body---Whereas through the other letter, the accused had merely conveyed to purported allottee the decision/ order of the Chief Minister of restoring permission to deposit the price of land at the agreed rate and directed him to deposit the amount within three month---Said letters clearly did not contain any decision or order made by accused in the matter, and therefore, he could not, prima facie, be held responsible for the sale of the land---Bifurcation of the land into commercial and residential was done by Incharge Town Planning, Development Authority, and no material had been placed before us to show any involvement of the accused therein---Accused was not alleged to have, in any way, benefited from the transaction; absolutely no allegation of illegal gratification had been made against him---Ad interim bail granted to accused was confirmed accordingly.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Ahmed Siddiqui, Advocate Supreme Court and Baz Muhammad Khan, Advocate along with Petitioner for Petitioners (in C.P. 51 of 2015).

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record along with Petitioner for Petitioners (in C.P. 57 of 2015).

Nasir Mahmood Mughal, Special Prosecutor for Respondent (NAB).

Date of hearing: 20th April, 2015.

2016 S C M R 171

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Umar Ata Bandial and Maqbool Baqar, JJ

KHAWAJA FAROOQ AHMED and another---Appellant/Petitioner

Versus

TUFAIL AHMED and others---Respondents

Criminal Appeal No.150-L of 2009, Criminal M.A. No.435-L of 2014 and Criminal Petition No.500-L of 2008, decided on 18th August, 2015.

(On appeal against the judgment dated 22-9-2008 passed by the Lahore High Court, Lahore in Murder Reference No.852/2003, Criminal Appeals Nos.663/2003, 664/2003, 693/2003 and Criminal Revision No.354/2003)

Penal Code (XLV of 1860)---

----S. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd---Reappraisal of evidence---Inculpatory statement of accused---Converting of sentence---Trial Court convicted accused persons for committing qatl-i-amd and sentenced the principal accused to death while the other was sentenced to imprisonment for life---High Court in exercise of appellate jurisdiction converted sentence of death into imprisonment for 25 years under S. 302(c), P.P.C. while the other accused was acquitted of the charge---Validity---Principal accused had admitted occurrence and could not produce any witness in support of his version that he acted in self-defence---Inculpatory part of a statement could be read in support of prosecution's case---Principal accused actively participated in the occurrence and committed murder of deceased and, thereafter, he concocted a false story to save his skin---High Court had erred in law while converting the offence from S. 302(b), P.P.C. to S. 302(c), P.P.C.---Supreme Court convicted principal accused under S. 302(b), P.P.C. instead of S. 302(c), P.P.C. and sentenced him to imprisonment for life---Appeal was accepted accordingly.

Azhar Iqbal v. State 2013 SCMR 383 rel.

Nemo for Appellant (in Cr. Appeal No. 150-L of 2009).

Rai Bashir Ahmed, Advocate Supreme Court for Petitioner (in Cr. Petition No. 500-L of 2008).

Rai Bashir Ahmed, Advocate Supreme Court for Respondents Nos.1 - 3 (in Cr. Appeal No. 150-L of 2009).

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

Date of hearing: 18th August, 2015.

2016 S C M R 177

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

ANJUM CHEMICAL STORAGE (PVT.) LTD.---Petitioner

Versus

Messrs CHENAB LIMITED NISHATABAD and others ---Respondents

C.P.L.A. No.389-K of 2014, decided on 3rd August, 2015.

(On appeal from order of High Court of Sindh, Karachi dated 10-10-2014 passed in R.A. No. 85 of 2014)

Civil Procedure Code (V of 1908)---

----S. 115 & O. XLI, R. 5---Revision petition before High Court---Scope---Application under O. XLI, R. 5, C.P.C., filed before Appellate Court for stay of execution of decree---Dismissal of such application by Appellate Court would be a "case decided" within the meaning of S. 115, C.P.C., thus open to challenge (before the High Court) under S. 115, C.P.C.

Abdul Qadir, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd August, 2015.

2016 S C M R 179

[Supreme Court of Pakistan]

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

MUHAMMAD WAHID and another---Appellants

Versus

NASRULLAH and another---Respondents

Civil Appeal No.248-P of 2010, decided on 12th August, 2015.

(Against the judgment dated 17-5-2010 passed by Peshawar High Court in C.R. No.444 of 2010)

Civil Procedure Code (V of 1908)---

----S. 148---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Ex parte decree---Execution proceedings---Power of Trial Court to extend time for plaintiff to deposit balance consideration in court---Scope---Trial Court passed ex parte decree in favour of plaintiff, with the direction to the plaintiff to deposit remaining amount of sale consideration in court within forty (40) days, failing which the suit would be deemed to have been dismissed---Plaintiff failed to deposit the sale consideration within such stipulated time, and filed an application before Trial Court seeking extension of time for depositing the amount---Trial Court accepted said application and allowed an extension of ten (10) months to the plaintiff to deposit the amount, holding that that the court had ample powers under S. 148, C.P.C. to extend the time---Legality---Trial Court had passed the ex parte decree with a direction to the plaintiff to deposit the remaining sale consideration in court within 40 days, failing which the suit filed by them shall stand dismissed---Admittedly, the plaintiff had made the application for extension of time for depositing of balance sale consideration after a lapse of more than 40 days---Such application, in the given circumstances, could not have been accepted by the Trial Court in exercise of its powers under S. 148, C.P.C., as on the date of filing of such application the Trial Court had become functus officio by virtue of the decree passed by it---Decree passed by Trial Court could only have been challenged by the plaintiff in appeal and the Appellate Court was competent to allow an application seeking extension of time for deposit of balance sale consideration if justifiable grounds were found---Jurisdiction with the Trial Court was available only within the stipulated period of 40 days, and the moment such period of 40 days was over, it ceased to have jurisdiction and became functus officio, in view of the condition incorporated in the decree---Appeal was dismissed accordingly.

Abdul Sattar Khan, Advocate Supreme Court for Appellants.

Mian Saadullah Jandoli, Advocate Supreme Court for Respondents.

Date of hearing: 29th April, 2014.

2016 S C M R 183

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

CIVIL AVIATION AUTHORITY through Director General and 3 others---Appellants

Versus

Mir ZULFIQAR ALI and another---Respondents

Civil Appeal No.11-K of 2013, decided on 24th July, 2015.

(Against the impugned judgment dated 6-11-2012 passed by High Court of Sindh Bench at Sukkur in C.P. No.D-2339 of 2011)

Constitution of Pakistan---

----Art. 199--- Constitutional petition before High Court---Maintainability---Laches---Respondent, who was an employee of Civil Aviation Authority, was dehired from service on account of his illness---Ten years after his de-hiring respondent filed Constitutional petition before the High Court for regularization of his service---Held, that said petition suffered from laches and ought to have been dismissed for having been filed after a lapse of about 10 years, and that too without any justification or explanation for such delay---Appeal was allowed accordingly.

Sanaullah Noor Ghouri, Advocate Supreme Court, A.S.K. Ghouri, Advocate-on-Record and Masood-ur-Rehman, Additional Director H.R. CAA for Appellants.

Respondent No.1 in person.

Date of hearing: 24th July, 2015.

2016 S C M R 184

[Supreme Court of Pakistan]

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

ZILLA MUHAMMAD and others---Petitioners

Versus

QAMAR ALI KHAN and another---Respondents

Civil Petition No. 1179 of 2015, decided on 18th August, 2015.

(On appeal from judgment dated 27-10-2014, passed by the Peshawar High Court, Peshawar, in C.R. No.477-P of 2013)

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

----S. 13(3)---Constitution of Pakistan, Art. 185(3)---Suit for pre-emption--- Talb-e-Ishhad, notice of--- Proof--- Pre-emptor not only examined himself but also proved the two attesting witnesses of notice of Talb-e-Ishhad---To prove delivery of such notice, the official of the concerned postal department was also examined---Talb-e-Ishhad, in such circumstances, had been duly performed in accordance with law---Petition for leave to appeal was dismissed accordingly.

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

----Ss. 27 & 33---Constitution of Pakistan, Art. 185(3)---Suit for pre-emption--- Actual sale consideration, determination of--- Court determining sale consideration after rejecting (a lesser) amount of sale consideration pleaded by the pre-emptor---Effect---Such rejection would not mean that pre-emptor had taken a 'false plea' regarding sale consideration, to disentitle him from his right of pre-emption---Pre-emptor had filed suit for pre-emption with the plea that actual sale consideration of the land was Rs. 56,000, but a fictitious amount of Rs.375,000 was displayed on the sale deed in order to defeat his right of pre-emption---Suit was decreed by Appellate Court but with the finding that actual sale consideration of the land was in fact Rs.375,000, which was the amount that the pre-emptor would have to pay---Contention of vendee that pre-emptor had taken a plea in the suit that sale price of land was Rs. 56,000, and not Rs. 375,000; that such plea having been found to be false by the Appellate Court, the pre-emptor was not entitled to a decree of pre-emption in view of S. 33 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, and the judgment of the Supreme Court reported as Subhanuddin and others v. Pir Ghulam (PLD 2015 SC 69)---Validity---Section 33 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 was attracted only with regard to a matter not specifically catered for under any provision of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Matter of dispute between the parties as to the sale price, had been specifically catered for by S. 27 of the said Act, therefore, the provision of S. 33 could not be resorted to---Section 27(2) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 stated that in the eventuality of a disagreement between the parties with regard to the sale price, the court was empowered to determine whether the purported sale price had been fixed in good faith or paid and in case it came to the conclusion that the sale price had been paid in good faith, the suit was to be decreed on the payment of such price by the pre-emptor, and not dismissed as contended by the vendee in the present case---Supreme Court dismissed petition for leave to appeal with the observation that the law laid down in the case reported as Subhanuddin and others v. Pir Ghulam (PLD 2015 SC 69), was not good law.

Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 held not good law.

Habibullah Khan v. Amir Zaman and 9 others 1995 SCMR 135 ref.

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

Nemo for Respondents.

Date of hearing: 18th August, 2015.

2016 S C M R 189

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Umar Ata Bandial, JJ

PROVINCE OF SINDH and another---Petitioners

Versus

MUHAMMAD ILYAS and others---Respondents

Civil Petitions Nos.316-K and 317-K of 2015, decided on 30th July, 2015.

(On appeal from the judgment/order dated 26-3-2015 passed by Sindh Service Tribunal Karachi in Service Appeals Nos.328 and 339 of 2015)

(a) Constitution of Pakistan---

----Art. 212(3)---Civil service---Dismissal from service---Grounds---Joining service belatedly---Inefficiency---Proof---Respondents were appointed as Constables (BS-5) in police department, however their appointment letters were never sent to them by registered post, nor were they ever informed about the same by telephone or verbally---Respondents collected their appointment letters from the police department through their own efforts, and immediately joined service---Dismissal of respondents in such circumstances on grounds of belatedly joining service and inefficiency was not justified---Even the letters of dismissal from service were never sent to the respondents through registered post and they were only informed about their dismissal verbally--- Supreme Court directed that respondents be reinstated in service--- Petition for leave to appeal was dismissed accordingly.

(b) Sindh Service Tribunal Act (XV of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Appeal against dismissal from service filed before the Service Tribunal---Limitation period, commencement of---Letter of dismissal from service not sent to civil servants---Limitation period commencing from date when letter of dismissal received--- Contention of appointing authority that respondents/civil servants were dismissed from service on 9-9-2013, but they filed their appeal before the Service Tribunal in July 2014, which was well beyond the 30 days period allowed for filing an appeal before the Tribunal---Validity---Dismissal from service letters dated 9-9-2013, were never sent to the respondents/civil servants---Respondents through their own efforts found out about their dismissal and personally collected their dismissal letters around middle of June, 2014---Subsequently respondents filed Constitutional petition before the High Court on 3-7-2014 i.e. within 30 days of collecting/receiving their dismissal letters---Said petition was treated by the High Court as an appeal and sent to the Service Tribunal---Appeal before the Service Tribunal, in such circumstances, would be treated as having been filed within 30 days from the date when respondents received their dismissal orders and as such not beyond the limitation period---Petition for leave to appeal was dismissed accordingly.

Mukesh Kumar, Additional AG Sindh, Mazhar Ali, AIG Legal and Intezar Hussain Qureshi, PDSP Hyderabad for Petitioners.

Respondents in person (in C.P. 316-K of 2015).

Respondents in person (in C.P. 317-K of 2015).

Date of hearing: 30th July, 2015.

2016 S C M R 192

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

MUHAMMAD ISHAQUE QURESHI---Petitioner

Versus

SAJID ALI KHAN and another---Respondents

C.P. No. 116-K of 2015, decided on 7th August, 2015.

(On appeal against the order dated 24-12-2014 passed by the High Court of Sindh, Karachi in IInd Appeal No.138 of 2010)

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877) S. 12---Suit for specific performance---Sale agreement---Forged signatures---Opinion of Handwriting Expert---Rejection of plaint solely on the basis of opinion of Hand-writing Expert without framing of issues and recording evidence---Propriety---Plaintiff had filed suit for specific performance on basis of a sale agreement---Defendant filed application under O.VII, R. 11, C.P.C., for rejection of plaint, which was accepted by the First Appellate Court on the basis of the opinion of the Hand-writing Expert, who had opined that sale agreement contained

forged signatures of the defendant---Held, that question as to whether the sale agreement contained forged signatures of the defendant could not merely be decided on the basis of opinion of Handwriting Expert and that too without framing of issues and recording of evidence of the parties---Plaintiff had alleged that defendant signed an irrevocable power of attorney in his favour, and that he received possession of suit property after depositing the whole consideration amount in the bank account of the defendant---Such alleged facts demonstrated that there was some relationship between the plaintiff and the defendant, and as to what transpired between them could only be ascertained by the court by framing of issues in the suit and allowing parties to lead evidence---Once such exercise was done, the factum as to whether the sale agreement contained forged signatures of defendant or not could be determined by the Court by also taking into consideration opinion of Handwriting Expert---Present matter required determination on merits, therefore, Supreme Court remitted the suit for specific performance to the Trial Court for deciding the same after framing of issues---Appeal was allowed accordingly.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Respondent No.1(f) in person.

Date of hearing: 7th August, 2015.

2016 S C M R 196

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Amir Hani Muslim and Gulzar Ahmed, JJ

Dr. SUMERA TABASSUM---Petitioner

Versus

F.P.S.C. and others---Respondents

C.P. No. 212-K of 2015, decided on 27th August, 2015.

(Against the impugned judgment passed by the High Court of Sindh at Karachi in C.P. No. D-3090 of 2010 on 22-1-2015)

Civil service---

----Reserve list of candidates for a post---Candidate selected on merit not joining a post---Nomination of an alternate candidate from the reserve list---Petitioner applied for the post of lecturer in Pharmacology---Petitioner was not selected, however, she was placed in the reserve list---Candidate who stood first on the merit list for the subject of Pharmacology did not join the service/post nor did she send any intimation declining the offer---Petitioner who was the alternate nominee of the said candidate, was not recommended for the post by the competent authority, inter alia on the ground that the reserve list was valid for only six months but the Health Ministry intimated petitioner's alternate nomination to the competent authority after expiry of such period---Validity---In terms of clause (d) of Office Memorandum, Establishment Division issued on 5-5-2010, the reserve list in the present case remained valid for a period of 10 months, and the petitioner had addressed letters to the competent authority (Federal Public Service Commission) within such time period to consider her as the alternate candidate for the post in question---Admittedly petitioner was eligible and qualified for the post in question, and the only dispute was with regard to lapse of time for approaching the competent authority by the Health Ministry---Such expiry of time was not attributable to the petitioner, and could not be counted against her to deprive her from the post in question, when she was otherwise found qualified, and till date the post was vacant and had not been re-advertised---Supreme Court directed the competent authority to allow the petitioner to join the post in question---Appeal was allowed accordingly.

Musa Wazir and 2 others v. N.W.F.P. Public Service Commission through Chairman and others 1993 SCMR 1124 distinguished.

Province of Sindh and others v. Ghulam Hassan Bughio 2014 SCMR 643 ref.

Petitioner in person.

M. Aslam Butt, DAG, A.S.K. Ghori, Advocate-on-Record, Haroon Rasheed Assistant Director, FPSC, Dr. Seemin Jamali, Executive Director JPMC and Adnan Karim, Additional A.G. for Respondents.

Date of hearing: 27th August, 2015.

2016 S C M R 201

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

MUHAMMAD BUX KUMBHAR---Petitioner

Versus

HABIB BANK LIMITED and others---Respondents

Civil Petition No.308-K of 2015, decided on 31st July, 2015.

(Against order dated 21-4-2015 of the High Court of Sindh, Karachi passed in Civil Revision No.68 of 2014)

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Constitution of Pakistan, Art. 185(3)---Suit for damages---Rejection of plaint---Scope---Bank employee---Pensionary benefits---Plaintiff/employee unable to prove his belated claim---Full and final settlement of pension and other dues between the Bank and its employee---Employee, at the time of retirement received all his dues from the Bank without any objection or reservations---Subsequently after a lapse of three years from retirement, plaintiff filed suit for damages against the Bank claiming that his pensionary benefits and other dues had not been properly calculated by the Bank---During the period of three years between his retirement and filing of suit, the plaintiff neither raised any objection, nor claimed any right or dues in relation to his past service/retirement---Besides plaintiff could not satisfy the court regarding his claim of miscalculation of his pensionary benefits and other dues, and also failed to point out any anomaly in the statement submitted in court by the Bank which contained details of all the dues paid to the plaintiff by the Bank---Three Courts below had rejected the plaintiff's claim (by accepting the Bank's application for rejection of plaint under O. VII, R. 11, C.P.C.)---Petition for leave to appeal was dismissed and leave was refused accordingly.

Petitioner in person.

Mehmood Abdul Ghani, Advocate Supreme Court, Muhammad Taufiq, GM and Nargis Azam Panwar, DGM-II for Respondents Nos.1 and 2.

Date of hearing: 31st July, 2015.

2016 S C M R 203

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

Dy. DISTRICT OFFICER (REVENUE) LAHORE and others---Appellants

Versus

Raja MUHAMMAD YOUSAF and others---Respondents

Civil Appeal No.475-L of 2010, Civil Appeals Nos.69-L to 78-L of 2014 and Civil Petition for leave to Appeal No.1259 of 2014, decided on 9th September, 2015.

(On appeal from the judgment dated 18-6-2008 in W.P. No. 774 of 2008 and judgment dated 19-3-2012 in W.P. No. 25890 of 2010 passed by the Lahore High Court, Lahore)

Stamp Act (II of 1899)---

----S. 27-A---Specific Relief Act (I of 1877) S. 12---Registration of sale/conveyance deed prepared pursuant to a decree in a suit for specific performance---Stamp duty, calculation of---Relevant date for calculation of stamp duty, determination of---Question as to whether stamp duty on a sale/conveyance deed prepared pursuant to a decree of the court was to be calculated on the basis of sale consideration mentioned in the sale deed/decree or on the basis of the notional/deemed value of the immovable property at the time when it was presented for registration---Any document which was presented for registration was required to be stamped as per the stamp duty applicable on such date, and it made no difference whether the document was voluntarily presented by the executants thereof or had been prepared pursuant to a decree---Date on which the document was presented for registration was the material date, and it was immaterial whether it had been prepared pursuant to a decree of a court; and, if a valuation table had been notified pursuant to S. 27-A(1) of the Stamp Act, 1899, then the amount of the stamp duty was to be calculated on the basis of such notional/deemed valuation---Conveyance/sale deeds prepared pursuant to a decree in a suit for specific performance shall be stamped in accordance with stamp duty as was applicable under the Stamp Act, 1899 on the date that the same was presented for registration, however, if a valuation table had been notified pursuant to S. 27-A(1) of the Stamp Act, 1899 then the applicable stamp duty would be calculated in accordance therewith in respect of documents wherein the sale consideration that was mentioned was less than that specified in the said valuation table.

Khalid Pervaiz Khan Tareen v. D.C./Registrar, Quetta PLD 1994 Quetta 9; Abdul Sattar v. Province of Punjab 1995 CLC 187; Province of Punjab v. Marhaba Dawakhana Regd 1999 CLC 450 and Allah Ditta Bhatti v. Amjad Saeed PLD 2009 Lah. 440 distinguished.

Rana Shamshad Khan, Assistant AG Punjab for Appellants (in C.A. 475-L of 2010 and C.As. 73-L to 78-L of 2014).

Ch. Ali Muhammad, Advocate Supreme Court for Appellants (in C.As. 69-L to 72-L of 2014 and C.P. 1259 of 2014).

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Respondents (in C.A. 475-L of 2010).

Rana Shamshad Khan, Assistant AG Punjab for Respondents (in C.As. 69-L to 72-L of 2014).

Nemo for Respondents (in C.As. 73-L to 78-L of 2014).

Sajid Ilyas Bhatti, DAG, Mian Arshad Jan, Additional AG, KP, M. Ayaz Sawati, Additional AG, Balochistan and Shehryar Qazi, Additional AG, Sindh on Court's Notice.

Date of hearing: 19th August, 2015.

2016 S C M R 210

[Supreme Court of Pakistan]

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

MUHAMMAD SARWAR @ SARU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.415 of 2007, decided on 8th January, 2015.

(On appeal from the judgment dated 4-4-2002 passed by the Lahore High Court, Lahore in Crl. A. 449 of 1997)

Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Reappraisal of evidence---Death sentence reduced to life imprisonment---Motive unproved---Time period spent in death cell more than period of life imprisonment---Accused was sentenced to death for killing the deceased over a petty quarrel---Evidence available on record did establish that accused had fired at the deceased, however, no one had witnessed the incident of quarrel between the accused and the deceased prior to the murder, thus, motive remained unproved---Furthermore accused had been in death cell for a period which was more than a sentence for life imprisonment---Supreme Court after observing that combination of said two factors attracted the principle laid down in the cases of Hassan and others v. The State and others (PLD 2013 SC 793), Dilawar Hussain v. The State (2013 SCMR 1582) and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034), maintained conviction of accused but reduced his death sentence to life imprisonment---Appeal was partly allowed accordingly.

Hassan and others v. The State PLD 2013 SC 793; Dilawar Hussain v. The State 2013 SCMR 1582 and Ghulam Moy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed Khan, Additional P.C., Punjab for the State.

Date of hearing: 8th January, 2015.

2016 S C M R 213

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ejaz Afzal Khan, JJ

Mian JAVED AMIR and others---Appellants

Versus

UNITED FOAM INDUSTRIES (PVT.) LTD., LAHORE and others---Respondents

Civil Appeals Nos.616 and 617 of 2006, decided on 18th June, 2015.

(On appeal against the judgment dated 16-2-2006 passed by the Lahore High Court, Lahore in ICA No.12 of 2005 and the Order dated 27-2-2006 passed in C.M. No.69 of 2006 in ICA No.12 of 2005)

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 9 & 152---Application before Company Court under S. 152 of the Companies Ordinance, 1984---Company Court, jurisdiction of---Factual controversy--- Framing of issues and recording of oral/documentary evidence---Section 9(3) of the Companies Ordinance, 1984 did not abridge or curtail the power of the (Company) Court to enter into a factual inquiry, frame issues for determination, and record oral evidence as well as documentary evidence in the proceedings before it to determine the issues relating to a "company" or its members covered under the Companies Ordinance, 1984---Company Court having jurisdiction under the Companies Ordinance, 1984, could receive evidence in cases it thought appropriate in circumstances of the case---All matters relating to companies irrespective of the fact whether factual controversy was involved or not were required to be tried by a court having jurisdiction under the Companies Ordinance, 1984---Civil court would not be the appropriate forum for resolving such matters.

(b) Companies Ordinance (XLVII of 1984)---

----Ss. 9, 263, 265 & 305---Company Court/Judge, jurisdiction of---Scope---Application before Company Court under S. 152 of the Companies Ordinance, 1984--- Dispute arose between major shareholders of a company due to alleged manipulation in the company record and bogus entries in the register---One of the major shareholders filed an application before Company Court under S. 152 of the Companies Ordinance, 1984---Company Court referred the matter to the Securities and Exchange Commission for appointing an inspector to investigate into the affairs of the company and submit a report as to whether a case under S. 305 of Companies Ordinance, 1984 was made out or not---Validity---Power to appoint an inspector under Ss. 263 & 265 of the Companies Ordinance, 1984, vested with the Commission on an application by a member of the company or the Registrar of the Commission--- Issue in the present case that the inspector was directed to investigate fell within the jurisdiction of the Company Court and could be investigated and looked into by a Company Judge itself--- Appeal was partly allowed accordingly.

Aitzaz Ahsan, Senior Advocate Supreme Court, Uzair Karamat Bhandari, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in both cases).

Raza Karim, Senior Advocate Supreme Court and Omar Alvi, Advocate Supreme Court for Respondents Nos.1 - 10 (in C.A. 616 of 2006).

Raza Karim, Senior Advocate Supreme Court and Omar Alvi, Advocate Supreme Court for Respondents Nos.2 - 11 (in C.A. 617 of 2006).

Hamid Khan, Senior Advocate Supreme Court for Respondent No. 12 (C.A. 616 of 2006).

Hamid Khan, Senior Advocate Supreme Court for Respondent No.1 (in C.A. 617 of 2006).

Date of hearing: 10th, 15th, 16th and 18th June, 2015.

2016 S C M R 222

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Maqbool Baqar, JJ

Messrs BEACH LUXURY HOTELS, KARACHI---Appellant

Versus

Messrs ANAS MUNEER LTD. and others---Respondents

Civil Appeal No. 1137 of 2008, decided on 16th December, 2015.

(Against the judgment dated 25-4-2006 of the Lahore High Court, Lahore passed in LPA No.169 of 1968)

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) [as amended]---

----S. 20 & Sched. Para. 9---Illegal transfer---Tranferee holding Provisional Transfer Order---Misrepresentation and fraud---Power of Settlement Department to re-open such a transfer and cancel the same---Legal entitlement of transferee/respondent in the present case only extended to one property, however he fraudulently got transferred two properties in his name from the Deputy Settlement Commissioner---Property purchased by the appellant in open auction included one of properties (disputed property) fraudulently and illegally transferred to the respondent---Respondent failed to establish his entitlement to the disputed property---Revenue records showed that disputed property was part of the hotel land purchased by the appellant in public auction---When the present matter was re-opened the Additional Settlement Commissioner re-examined all the facts pertaining to the title of the respondent and also of the appellant before deciding in favour of the appellant---Transfer of disputed property in favour of respondent had been rightly cancelled by the Settlement Department.

Respondent only had a Provisional Transfer Order in his favour, which contained a condition that in case the Settlement Department found that he had made any false representation, or concealment of a material fact, or fraud, it would be entitled to resume the property. Settlement Authorities had the inherent power to recall the impugned order in case of fraud or misrepresentation. Respondent had been allotted two plots, one of which (i.e. disputed plot) formed part of the hotel purchased by the appellant in a public auction. Respondent had illegally obtained two plots of land instead of one and hence the Settlement Department was entitled to cancel one of the two plots while leaving the other in his possession and ownership.

Respondent could not rely upon Municipal Tax record to prove that both plots formed part of the same property, as such record was not important for establishing question of title. Revenue records showed that disputed plot was part of the hotel bought by the appellant.

Settlement Department had exercised great care in relation to the auction of the hotel land.No allegations had been made for and in relation to the manner in which the auction was conducted. No fraud, misrepresentation or concealment by the appellant was either alleged by anyone or found by the Settlement Department to have taken place.

When the matter was re-opened the Additional Settlement Commissioner re-examined all the facts pertaining not merely to the title of the respondent but also of appellant from the very inception. Additional Settlement Commissioner also took technical assistance of the Land Acquisition and Control Officer, a Naib Tehsildar, a Revenue Patwari, and a Revenue Qaungo aided further by the Settlement Patwari before concluding the matter in favour of the appellant. On re-opening of present matter Settlement authorities examined the official plan of the premises on the basis of which the auction was held. Transfer of disputed property in favour of respondent had been rightly cancelled by the Settlement Department. Appeal was allowed accordingly.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Respondents.

Date of hearing: 19th November, 2015.

2016 S C M R 242

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

SHAKEEL SARDAR AWAN and another---Petitioners

Versus

ELECTION APPELLATE AUTHORITY, TEHSIL GUJRANWALA (CITY) and others---Respondents

Civil Petition No. 3228 of 2015 along with C.P. 3229 of 2015, decided on 9th November, 2015.

(On appeal from the judgment dated 15-10-2015 passed by the Lahore High Court, Lahore in W. Ps. Nos. 30806-30807 of 2015)

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(e)---Pakistan Bait-ul-Mal Act (1 of 1992), Ss.2(c), 5(2)(iii), 6, 7(2) & 21---Local bodies election---Chairman or Member of District Bait-ul-Mal being non-official Members performing voluntary service, could not be termed as persons in the service of a statutory body---Chairman or Member of District Bait-ul-Mal were, therefore, were not barred under S. 27(2)(e) of Punjab Local Government Act, 2013 from contesting elections for local bodies---Two year post-resignation/ retirement bar from contesting elections did not apply to Chairman or Member of District Bait-ul-Mal.

Post of the Chairman or any Member of the District Board (Bait-ul-Mal) was entirely formal in nature and it had no independent role to play; to confer any benefit on any person by dis-regarding the policy guidelines given by the Provincial Board. Section 7(2) of the Bait-ul-Mal Act, 1992 clearly provided that non-official member shall not draw any salary, but shall be entitled to such facilities and privileges as may be prescribed from time to time. Petitioners, in the present case, could not establish that the Chairman of District Bait-ul-Mal was paid remuneration or any type of emoluments in cash thus, it appears that except some privileges or facilities which were provided at office, nothing was paid in cash either as remuneration or "honorarium". Hence, in the absence of clear proof, which was not provided to the court in the present case, it could not be presumed that the Chairman, District Bait-ul-Mal was getting pecuniary benefits from the Government or/and from the fund/revenue generated by the Bait-ul-Mal at the Federal level, the Provincial level or the District level.

Post of the Chairman or any Member of the Board (Bait-ul-Mal) was a voluntary service, rendered by the social workers, possessing high integrity and spotless career because the word, "Ameen" had been clearly mentioned with the word Chairman.

True, that the Chairman, the Members and the servants of the Board (Bait-ul-Mal) while acting in pursuance of any provision of the Bait-ul-Mal Act, 1992, shall be deemed to be public servants within the meaning of section 21, P.P.C., however, the same was provided for a restricted and well-defined purpose so that the Chairman, Members and servants of the Board did not indulge in corrupt practices and if they committed a breach of trust then, they would be liable to be proceeded against for that offence(s) under P.P.C. When the plain language of the statute was quite clear then it is not for the court to widen the scope of the same.

Moreover, there existed no master and servant relationship between the Chairman and the District Board (Bait-ul-Mal). Chairman did not have the powers to hire or fire any employee of the District Bait-ul-Mal as for such matter the case was to be referred to the Provincial Board.

(b) Interpretation of statutes---

----Court was not supposed to add anything to a law which was not provided therein nor to omit any word or expression from a statute, which was expressly provided therein---Court had to interpret the law and not to legislate the same or to provide an omission, which was deliberate and was not provided by the law makers.

Jalees Ahmed Meer, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents Nos.3 and 4 (in C.P. 3229 of 2015).

Razzaq A. Mirza, Additional A.-G. Punjab on Court's Notice.

Date of hearing: 9th November, 2015.

2016 S C M R 251

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Iqbal Hameedur Rehman and Maqbool Baqar, JJ

JAM MADAD ALI---Appellant

Versus

ASGHAR ALI JUNEJO and others---Respondents

Civil Appeal No. 194 of 2015, decided on 12th November, 2015.

(Against the judgment dated 3-3-2015 passed by the Election Tribunal, Hyderabad in Election Petition No. 3 of 2013)

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

----S. 46---Election Tribunal, powers of---Recounting of votes, order for --- Purpose and scope---Purpose of a recount in an election dispute was to verify and determine the authenticity and truthfulness of the allegations on the basis whereof the election result was challenged, however, in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to attempt to frustrate the will of the people as expressed through the election and also in order to avoid creating an incentive for the loosing candidates to in any way, indulge in post poll tampering or manipulation of the election record, a conscious effort was to be made that it was only in the circumstances which clearly justified, rather demanded a recount, that the recount was allowed---Minimum criteria or the essential pre-requisites for satisfying the conscience of the Court for permitting a recount, was that there should be specific allegation of tampering, manipulation and maneuvering in very clear terms along with the necessary details and prima facie material supporting such allegations---Election Tribunal should keep in mind that secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter---Election Tribunal should also be mindful that the discretion to exercise power of recount may not be exploited for a roving inquiry to fish out material for reversing the election or for declaring it void and thus it should be seen that as to whether in view of the statement of material fact, and the material placed before the Tribunal the request was fair and reasonable or not.

Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others PLD 2007 Lah. 141 ref.

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

----S. 46---Election Tribunal, powers of---Recounting of votes, order for---Recording of evidence not essential---Recording of evidence was not essentially required by Tribunal to pass an order for a recount as the Tribunal may on its own also order a recount.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 ref.

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

----Ss. 46 & 52---Election Tribunal---Recounting of votes at certain polling stations, order for---Legality---Non-specific allegations of tampering---No prima facie material/evidence presented on record to justify recount---In the present case, neither the memo of the election petition, nor the application for recount contained any specific allegation of tampering and/or manipulation against the appellant/returned candidate, nor any prima facie material supporting the allegations justifying the request for recount was furnished---Memo only contained generalized allegations of illegal and corrupt practices and rigging/manipulation of the electoral process---Another vague allegation made by the runner-up candidate was that his polling agents were removed from some polling stations for which recount was requested, however, again no details were spelt out---Election Tribunal was persuaded to pass the order for recounting on the basis of the statement of count/form XIV, in respect of some polling stations, where 100% of the votes assigned thereto were purportedly cast and counted and at some polling stations the number of votes cast as recorded in the statement of count/form XIV was more than 100% of the assigned votes--- Election Tribunal missed to notice that Presiding Officers had simply committed clerical errors/mistakes with respect to such polling station by recording the incorrect numbers on statement of count/form XIV---Said issue could have been easily resolved by referring to the gazetted list of such polling stations which clearly established that the total number of votes assigned to such polling stations far exceeded the number of votes cast---Material available on record did not provide any justification for the Election Tribunal to order a recount---Judgment of Election Tribunal was set aside and it was held that the appellant was the returned candidate from the constituency.

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

----Ss. 46 & 52---Election petition---Double stamping on ballot papers, allegation of---Doubt as to whether double stamping took place at the time of casting of ballots or after the result or recounting of votes---Runner up candidate could not be allowed to benefit from such doubt---Election Tribunal ordered recounting of votes at certain polling stations---After concluding the re-count the District Returning Officer (DRO) submitted his report, which report disclosed that a large number of ballot papers/votes recovered from the envelopes of the valid votes of the returned candidate/appellant and the runner-up candidate/ respondent, bore double seals/stamps, rendering such votes/ballot papers invalid, leading to their exclusion in the recount; that a good number of the polling bags and the envelopes containing votes were found to not have been properly sealed, and that a substantial number of the envelopes, containing the votes of the two candidates in various polling bags were torn---Election Tribunal on basis of such report de-notified the retuned candidate and declared the runner-up candidate as the retuned candidate from the constituency---Validity---From the polling day up to the time of recount, at no point in time, did the runner-up candidate allege any double stamping---Fact that ballots infested with double stamping would not have been noticed by any of the polling staff or the various candidates and their agents and that such ballot papers could be counted and secured in favour of a candidate without a demur was wholly inconceivable---Runner-up candidate also opposed the application of returned candidate for putting the double stamped ballot papers to forensic test to verify the type of ink and the seal used for the two stamps and as to when each of the two stamps were affixed---Ballot bags and the envelopes containing the ballot papers infested with double stamping, were either unsealed or were not properly sealed and many of the envelopes were also found to be torn---Envelopes containing the returned candidate's votes found torn far outnumbered such envelopes of the runner up candidate---Room where the relevant record was stored was not a secured place---Period of more than one year had elapsed between the polling/election and the recount, thus, in such circumstances, it could not be said that the double stamping took place at the time of casting of ballots and not after the result was announced and there was a great probability that the second stamp on the ballot papers may have been affixed during the period after the election and the recount---Runner up candidate could not be allowed to be benefited by the said double stamping and the same could not provide a valid ground for de-notifying the returned candidate and declaring the runner up candidate as the returned candidate---Judgment of Election Tribunal was set aside and it was held that the appellant was the returned candidate from the constituency.

Makhdoom Ali Khan, Senior Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Dr. Farough Nasim, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Respondent No.1.

Date of hearing: 12th November, 2015.

2016 S C M R 267

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

The STATE and others---Respondents

Crl. Appeals Nos. 329-L, 330-L of 2012 and 163-L of 2013, decided on 4th December, 2015.

(Against the judgment of the Lahore High Court, Lahore dated 19-1-2012 passed in Crl. A. No. 1849 of 2009, Crl. A. No. 1836 of 2009 and Crl. A. 386-J of 2009)

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

----Ss. 449, 376(2) & 392--- House-trespass to commit robbery and rape---Re-appraisal of evidence---Benefit of doubt---Delay of a month in lodging FIR---Unnatural conduct of victim in not raising hue and cry during rape---Probability of false implication---Absence of medical report/opinion on record---Doubtful extra judicial confession---Details of robbed articles not provided in the FIR--- Accused persons were acquitted of the charges against them by extending them benefit of doubt.

In the present case, matter was reported to the police thirty days after the occurrence, and explanation offered by the complainant for such delay was highly improbable. Witnesses of the ocular account made contradictory statement about the occurrence. Conduct of both the complainant and victim was highly improbable as they did not raise hue and cry during or after the occurrence. Possibility of false implication of the accused persons could not be ruled out especially when the alleged victim stated during her cross-examination that FIR was registered after the arrival of her father who consulted with witnesses. Doctor who medically examined the victim, did not submit her final opinion as she did not receive the report of Chemical Examiner. During cross-examination doctor categorically stated that in the absence of Chemical Examiner's report, she could not say whether the victim was subjected to rape or not. Witnesses of alleged extra judicial confession did not state the exact date and time of the confession made by the accused persons, and they also did not claim that accused persons had narrated the mode and manner of the occurrence. Prosecution claimed that one of the accused persons was armed during the occurrence, however during course of investigation no weapon was recovered. Some articles allegedly robbed during the occurrence were recovered at the instance of accused persons, however, complainant had not given any description of robbed articles in the FIR. Convictions and sentences recorded against accused persons were set-aside in circumstances by extending them benefit of doubt. Appeal was allowed accordingly.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S. 342---Evidence---Conviction and sentence---Scope---Piece of evidence not put to an accused during his/her examination under S.342, Cr.P.C., could not be used against him/her for maintaining conviction and sentence.

(c) Criminal trial---

----Recovery evidence, relevance of---Corroborative piece of evidence---Relevant only when primary evidence i.e. ocular account inspired confidence.

Dost Muhammad Kahoot, Advocate Supreme Court for Appellants (in Crl. As. 329-L of 2012 and 163-L of 2013).

Nemo for Appellants (in Crl. A. 330-L of 2012).

Perveiz Iqbal Gondal, Advocate Supreme Court for the Complainant.

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

Date of hearing: 3rd December, 2015.

2016 S C M R 274

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Dost Muhammad Khan, JJ

AZEEM KHAN and another---Appellants

Versus

MUJAHID KHAN and others---Respondents

Criminal Appeals Nos.497 and 496 of 2009, decided on 15th October, 2015.

(On appeal from the judgment dated 1-6-2009 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Crl. A. 144-T of 2007, Crl. Revision 62-T of 2007 and CSR. No.50-T of 2007)

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Un-witnessed crime---Lack of corroborative evidence---Voice data of phone calls not presented---Recovery memo witnesses 'interested witnesses'---Crime in question was an un-witnessed incident and based only on circumstantial evidence and recovery of incriminating articles--- Important links in the chain of story set up by the prosecution were missing due to lack of corroborative evidence---No voice record transcript of calls had been brought on record to prove the ransom demand---Area from which the call for ransom was made, was not shown---Most crucial and conclusive proof that the cell phone from which ransom demand was made was owned by the accused and SIM allotted was in his name was also missing---Attesting witnesses of recovery memo were related to the deceased and thus were highly interested witnesses---Number of bones, allegedly belonging to deceased, which were recovered on pointation of accused persons did not match with the number of bones sent for analysis to the Forensic Science Laboratory---Trial Court had relied on highly cryptic and infirm evidence to award death sentence to accused persons---Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.

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

----S. 164--- Confession recorded by Magistrate on oath---Admissibility---Such confession violated the law and rendered the same inadmissible.

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

----Ss. 164 & 364---High Court (Lahore) Rules and Orders, Vol. III, Chap. XIII---Judicial confession before Magistrate, recording of---Procedure and precautions to be observed by Magistrate for recording judicial confession of an accused.

Following procedure and precautions are to be observed by a Trial Court for recording judicial confession of an accused.

Before recording confession and that too in crimes entailing capital punishment, the recording Magistrate had to essentially observe all the mandatory precautions (laid down in the High Court Rules and Orders). Fundamental logic behind the same was that, all signs of fear inculcated by the investigating agency in the mind of the accused were to be shed out and he was to be provided full assurance that in case he was not guilty or was not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection was to be given after the first warning was administered. At the expiry of such time, recording Magistrate had to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person was willing to confess then, all required questions as formulated by the High Court Rules and Orders should be put to him and the answers given, be recorded in the words spoken by him. Statement of accused should be recorded by the Magistrate with his own hand and in case there was a genuine compelling reason then, a special note was to be given that the same was dictated to a responsible official of the Court like stenographer or reader and oath shall also be administered to such official that he would correctly type or write the true and correct version. In case, the accused was illiterate, and made a confession, which was recorded in another language i.e. Urdu or English, then the same should be read-over and explained to him in the language he fully understood, and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings should be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he was Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused.

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---Judicial confession, recording of---Illegalities committed by Magistrate in recording confession of accused---Effect---Judicial confession unworthy of reliance---Recording Magistrate committed successive illegalities as after recording the confessions of the accused persons on oath, both were handed over to the same police officer, who had produced them in the Court in handcuffs---Recording Magistrate was either unaware of the law on the subject or he was acting on the desire of the police, compromising his judicial obligations---Such careless attitude of the Magistrate provided premium to the investigating agency because it was thereafter, that the recoveries of the so-called incriminating articles were made at the instance of the accused persons---Recording Magistrate did not put many mandatory questions to the accused persons like duration of police custody and he also did not inform them that they would not be given back to the police whether they recorded the confession or not---Confessions of accused persons in such circumstances were of no legal worth, and had to be excluded from consideration, more so, when these were retracted at the trial---Even otherwise confessions of accused persons prima facie appeared to be untrue because the same contradicted the story set up by prosecution witnesses on material particulars of the case---Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.

Khuda Bux v. The Crown 1969 SCMR 390 ref.

(e) Criminal trial---

----Evidence, appreciation of---One tainted (piece of) evidence could not corroborate another tainted piece of evidence.

Muhammad Bakhsh v. The State PLD 1956 SC 420 ref.

(f) Evidence---

----Documentary evidence---Oral evidence---Contradiction between---Documentary evidence shall prevail over an oral statement made at a subsequent stage, which contradicted the contents of documents.

(g) Criminal trial---

----Extra-judicial confession---Weak type of evidence on basis of which conviction on capital charge could not recorded.

Noor Muhammad v. The State PLD 1991 SC 150 ref.

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---Medical jurisprudence---Decomposition of human body---Recovery of bones---Doubt as to whether a human body could decompose into bones within a month---Pieces of bones allegedly belonging to deceased were discovered about a month after his murder---Such (rapid) destruction of entire body of a human being was not possible within a month because some visceras made of tough tissues and full skeleton of human body remained intact---In the present case, only scattered pieces of bones were recovered and not full skeleton of human body, which by itself was unbelievable, being against the well-established and universally recognized juristic view on the subject---Recovery of pieces of bones after one month was entirely doubtful---Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.

Modi's Textbook of Medical Jurisprudence and Toxicology ref.

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

----S. 510---DNA test report---Not admissible piece of evidence as S. 510, Cr.P.C. did not mention the report of a biochemical expert on DNA (biochemist).

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code (V of 1898), S. 510---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---Recovery of bones to identify deceased---DNA report of bones---Not admissible in evidence---Not sufficient to award capital punishment---Even if in the present case such DNA report was admitted into the evidence and relied upon, it would in no manner be sufficient to connect the necks of the accused persons with the commission of the crime when the bulk of other evidence against them was found to be unbelievable thus, no reliance could be placed on such DNA report to award a capital sentence---To ensure fair-play and transparency, the samples in the laboratories from the parents (of deceased) should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices---Transition of the samples to the laboratory should have also been made in a safe and secure manner, but all such safeguards were ignored in the present case--- Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.

(k) Criminal trial---

----'Interested witness' and 'independent witness', evidence of---Scope---Even evidence of uninterested (independent) witness, not inimical to the accused, may be corrupted deliberately (and hence not worthy of reliance), while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon.

Waqar Zaheer v. The State PLD 1991 SC 447 ref.

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

----S. 156--- Penal Code (XLV of 1860), S. 302(b)--- Qatl-i-amd---Reappraisal of evidence--- Police documents---Recovery memo---Interpolation and over-writing---Court in such cases should be at guard and had to take extra care in making the appraisal of evidence, because once dishonesty in the course of investigation was discovered then Court would always seek strong corroboratory evidence before relying on the other evidence of the prosecution.

(m) Criminal trial---

----Crimes entailing capital punishment---Conviction---Circumstantial evidence, reliance upon---Scope---Different pieces of circumstantial evidence had to make one chain, an unbroken one where one end of it touched the dead body and the other the neck of the accused---Any missing link in such chain, broke the whole chain and no conviction could be recorded in crimes entailing capital punishment---Courts had to take extraordinary care and caution before relying on the circumstantial evidence---To justify the inference of guilt of an accused person, the circumstantial evidence must be of quality that was incompatible with the innocence of the accused; if circumstantial evidence was not of such standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment---Better and safe course in such circumstances would be not to rely upon such circumstantial evidence.

(n) Criminal trial---

----Conviction---Evidence---Strong unimpeachable evidence---No one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character that was legally admissible.

(o) Criminal trial---

----Evidence, appreciation/appraisal of---Benefit of doubt---Heinous or gruesome nature of crime---Nature of crime should not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a proper manner and to extend the benefit of reasonable doubt to an accused person---Any influence from the nature of the crime and other extraneous consideration might lead the judges to a patently wrong conclusion.

Agha Muhammad Ali, Advocate Supreme Court for Appellants (in Crl. A. 497 of 2009).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for the Complainant.

Ahmad Raza Gillani, Advocate Supreme Court for the State.

Date of hearing: 15th October, 2015.

2016 S C M R 291

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali and Umar Ata Bandial, JJ

KAREEM NAWAZ KHAN---Petitioner

Versus

The STATE through PGP and another---Respondents

C.P.L.A. No.689-L of 2015, decided on 1st June, 2015.

(On appeal from order of Lahore High Court, Lahore dated 4-3-2015 passed in W.P. No.9233 of 2014)

(a) Constitution of Pakistan---

----Art. 185(3)---Leave granting order by Supreme Court---Such order had no binding effect against the settled propositions on an issue.

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

----S. 345(7)---Penal Code (XLV of 1860), Ss. 302(b) & 338-E---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21-L---Qatl-i-amd, act of terrorism---Waiver or compounding of offence---Scope---Conviction and death sentence recorded under S. 302(b), P.P.C. and S. 7(a) of Anti-Terrorism Act, 1997---Offence under S. 7(a) of the Anti-Terrorism Act, 1997 was an independent one, which was non-compoundable, thus the sentence awarded under said provision of law was independent to other sentences under S. 302(b), P.P.C. etc., which may be compoundable in nature---In view of the bar contained in S. 345(7), Cr.P.C., conviction of an accused under the Anti-Terrorism Act, 1997 would remain intact despite compromise in other sentences in compoundable offence.

Accused was convicted and sentenced to death under section 302(b), P.P.C. and section 7(a) of Anti-Terrorism Act, 1997. Such conviction and sentences attained finality up to the Supreme Court. Accused, thereafter, moved an application under section 338-E, P.P.C. for effecting compromise with the legal heirs of the victims, which was accepted by Trial Court to the extent of compoundable offences under section 302, P.P.C., while the conviction and sentence awarded to the accused under sections 7(a) and 21-L of the Act of 1997, being non-compoundable, were maintained.

Offences under sections 7(a) and 21-L of the Anti-Terrorism Act, 1997, were independent [of section 302(b), P.P.C.] and non-compoundable. Thus the sentences awarded under sections 7(a) and 21-L of the Anti-Terrorism Act, 1997 were independent to other sentences under section 302(b), P.P.C. etc., which may be compoundable in nature. In view of the bar contained in section 345(7) Cr.P.C., conviction of an accused under the Anti-Terrorism Act, 1997 would remain intact despite compromise in other sentences in compoundable offence. Order passed by Trial Court in the present case on the application of accused under section 338-E, P.P.C was in conformity with the relevant provisions of law.

Muhammad Amin v. The State 2002 SCMR 1017; Muhammad Rawab v. The State 2004 SCMR 1170; Shahzad v. Judge, Anti-Terrorism Court 2005 SCMR 1162 and Muhammad Akhtar v. The State PLD 2007 SC 447 ref.

Abid Saqi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 1st June, 2015.

2016 S C M R 430

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Sardar Tariq Masood, JJ

ZAHID IQBAL---Petitioner

Versus

Hafiz MUHAMMAD ADNAN and others---Respondents

Civil Petition No. 3181 of 2015, decided on 6th November, 2015.

(Against order dated 21-10-2015 of Lahore High Court, Multan Bench, Multan, passed in Writ Petition No. 15261 of 2015)

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)---Local bodies elections---Disqualification for candidates enumerated under S. 27(2) of the Punjab Local Government Act, 2013---Scope---Any person who may fall within the net of any of the ten listed disqualifications under clauses (a) to (j) of S. 27(2) of Punjab Local Government Act, 2013 was debarred either to put forth his candidature to contest and or be elected as a member of Punjab Local Government---Disqualification enumerated in S. 27(2) of the Punjab Local Government Act, 2013 could be invoked and inflicted both at pre-election and or post-election stage.

(b) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(a)--- Local bodies elections--- Disqualifications for candidates---Dual citizenship/nationality---Disqualification on account of dual nationality within the contemplation of S. 27(2)(a) of the Punjab Local Government Act, 2013 would only apply as long as any person continued to hold citizenship and or nationality of any other foreign State, the moment he renounced such dual nationality and was a citizen of Pakistan he was qualified to contest elections (for Punjab Local Government), unless of course disqualification on account of holding dual citizenship was inflicted by the "Election Commission" under S. 27(3)(b) of the Punjab Local Government Act, 2013.

When a person/candidate gave up his dual nationality, he became eligible to put forth his candidature for election as a member or to hold an elected office of a Local Government under section 27 of the Punjab Local Government Act, 2013, unless of course disqualification on account of holding dual citizenship was inflicted by the "Election Commission" under section 27(3)(b) of the Punjab Local Government Act, 2013. Petitioner-candidate had already renounced his UK citizenship and was not holding any dual citizenship when submitting his nomination papers for contesting the local bodies elections, therefore, disqualification on account of dual citizenship within the contemplation of section 27(2)(a) of Punjab Local Government Act, 2013 was not attracted in the present case. Further nothing on record of present case showed that the "Election Commission" had ever inflicted any disqualification on the petitioner-candidate under section 27(3)(b) of the Punjab Local Government Act, 2013, therefore, bar to contest election for a period of four years would not be attracted in the present case. Returning Officer had rightly accepted the nomination papers of the petitioner-candidate for contesting election for Chairman, Union Council.

(c) Punjab Local Government Act (XVIII of 2013)---

----S. 27---Constitution of Pakistan, Arts. 62 & 63---Punjab Local Government elections---Qualifications and disqualifications for candidates---Scope---Any disqualifications for Member of Majlis-e-Shoora (Parliament) within the contemplation of Art. 62 and or 63 of the Constitution were neither attracted by implication nor by reference within the fold of S. 27 of the Punjab Local Government Act, 2013---Disqualifying provisions under Arts. 62 & 63 of the Constitution could not be dragged and be read as a part of S. 27 of the said Act to disqualify any person from putting forth his candidature for Punjab Local Government elections.

Disqualification prescribed for a person from being elected as Member of Majlis-e-Shoora (Parliament) under Article 63 of the Constitution could not be imported or read into section 27 of Punjab Local Government Act, 2013 to disqualify any person to put forth his candidature for Punjab Local Government elections. Disqualification prescribed under "any law" or even in the Constitution unless specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in "any law" could not be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of "the Act, 2013" only.

(d) Interpretation of statutes---

----Court should not read into any provision and or words that were not part of the statute, unless imported or made applicable specifically---Neither the duty nor the function of the Court to read into or delete any word and or provisions in an enactment, unless specifically adopted or imported by reference---Courts do not legislate but interpret statutes according to their ordinary and plain meaning and do not import and or supply word or provisions from "any other law", no matter how laudable and desirable it may appear to be.

Salman Akram Raja, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

M. Ilyas Siddiqui, Advocate Supreme Court and M. Afzal Siddiqui, Advocate Supreme Court for Respondents.

Razzaq A. Mirza, Additional A.-G. Punjab and M. Saeed, R.O. on Court's Notice.

Date of hearing: 6th November, 2015.

2016 S C M R 439

[Supreme Court of Pakistan]

Present Ijaz Ahmed Chaudhry and Mushir Alam, JJ

ALI RAZA FATIANA---Petitioner

Versus

ELECTION APPELLATE AUTHORITY, LOCAL GOVERNMENT, SAHIWAL and others---Respondents

Civil Petition No.3292 of 2015, decided on 18th November, 2015.

(On appeal against the judgment dated 3-11-2015 passed by the Lahore High Court, Multan Bench in Writ Petition No.15153 of 2015)

(a) Punjab Local Governments (Conduct of Elections) Rules 2013---

----R. 12(2)---Nomination for elections---Proposer---Person contesting seat for Chairman/Vice Chairman/Member Union Council---Such person could not act as a proposer for a candidate who was contesting for Chairman/Vice-Chairman/Member Union Council---However, where such person withdrew his nomination papers before the scrutiny of his proposed candidate, he could act as proposer for the latter.

Nomination papers for Chairman and Vice-Chairman (respondents) Union Council were proposed by a person, who himself submitted nomination papers for Vice-Chairman Union Council in the same constituency. Returning Officer informed the respondents that as their proposer himself was contesting election and could not propose any candidate, their nomination papers were liable to be rejected, upon which the respondents requested for adjournment, which was granted and the case was fixed on 2-10-2015. Meanwhile, on 1.10.2015 proposer in question filed an application to withdraw his nomination papers as a candidate. Returning Officer could have passed the order on the same day but he adjourned the case, which meant that the process of scrutiny of respondents was not over. Proposer had withdrawn his nomination papers on 1.10.2015 prior to the date extended by the Returning Officer i.e. 2.10.2015 for the scrutiny of respondents' nomination papers. Nomination papers of respondents had been rightly accepted in such circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Election process---Order passed by an election functionary---Constitutional jurisdiction of the High Court could only be invoked "where no legal remedy was available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which was patently illegal/without jurisdiction and the effect of which was to disfranchise a candidate."

Ghulam Mustafa Jatoi v. ADJ/Returning Officer Naushero Feroz 1994 SCMR 1299 ref.

Arif Chaudhry, Advocate Supreme Court for Petitioner.

Muhammad Munir Paracha, Advocate Supreme Court for Respondents Nos. 4 and 5.

Date of hearing: 18th November, 2015.

2016 S C M R 442

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

GOVERNMENT OF PAKISTAN M/o RAILWAYS, through Secretary and others---Appellants

Versus

JAMSHED HUSSAIN CHEEMA and others---Respondents

Civil Appeal No. 308 of 2014, decided on 7th December, 2015.

(On appeal from the judgment of the Islamabad High Court, Islamabad dated 17-9-2013 passed in I.C.A. 872 of 2013)

Civil service---

----Upgradation of post--- Discrimination--- Policy decision of Government regarding upgradation of posts---Such decision could not be challenged in constitutional jurisdiction of High Court on the purported plea of discrimination---Upgradation of post was not a vested right.

Policy decision had been taken by the competent authority with the approval of Federal Government for upgradation of pay scales of different categories of its employees in a conscious manner, looking to the nature of their jobs etc, therefore, such decision could not be challenged in writ jurisdiction (of the High Court) on the purported plea of discrimination. Moreso, when Article 25 of the Constitution itself provided a provision for such discrimination on the principle of reasonable classification. In the present case, respondents had also been granted upgradation by one step from BS-12 to BS-13 along with many others, who had been also given only one step upgradation in the scales and in many other cases upgradation was allowed by two steps. Thus, such classification/categorization by the competent authority could not be struck down on the plea of discrimination, at the whims of respondents, who had approached the High Court in such regard. Additionally respondents has also failed to show that due to the impugned action of the competent authority any Fundamental rights of the respondents had been violated or they had any vested right for such upgradation as per their choice.

Government of the Punjab through Chief Secretary, Lahore and others v. Abdul Sattar Hans and 29 others 2015 SCMR 915; Asaf Faihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Secretary Economic Affairs Divisions, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Abdul Waha and others v. HBL and others 2013 SCMR 1383; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Jahangir Sarwar and others v. Lahore High Court and another 2011 SCMR 363; Government of the Punjab through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs. and others 2010 SCMR 431; Muhammad Farid Khattak and others v. Chief Secretary, Government of N.W.F.P. and others 2009 SCMR 980; Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and others 2006 SCMR 1076 and Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Rai Muhammad Nawaz Khan Kharal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Ch. Muhammad Anwar Bhindar, Senior Advocate Supreme Court for Respondents.

Date of hearing: 7th December, 2015.

2016 S C M R 447

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Umar Ata Bandial and Maqbool Baqar, JJ

DIRECTOR GENERAL, FIA and others---Appellants

Versus

KAMRAN IQBAL and others---Respondents

Civil Appeal No. 350-L of 2009, decided on 25th November, 2015.

(Against Order dated 13-11-2008 of the Lahore High Court, Lahore passed in Writ Petition No. 11056 of 2008)

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

----Preamble & Sched.---Penal Code (XLV of 1860), S. 489-F---S.R.O. No.977(I)/2003 dated 08-10-2003---Federal Investigation Agency, jurisdiction of---Offences under the Pakistan Penal Code, 1860---Registration of FIR---Dispute between private individuals---Federal Investigation Agency was not competent and did not have the jurisdiction to register an FIR under S. 489-F, P.P.C. for a dispute between two private individuals in respect of a purely business transaction---Schedule to the Federal Investigation Agency Act, 1975 granted jurisdiction to the Federal Investigation Agency to act in respect of several offences, however for exercising jurisdiction in such offences there had to be some nexus between the offences complained of and the Federal Government---Present case did not even remotely involve the Federal Government or for that matter any governmental entity, thus Federal Investigation Agency had no jurisdiction to record the FIR in question---High Court was correct in ordering quashment of such FIR---Appeal was dismissed accordingly.

Waris Meah's case PLD 1957 SC (Pak) 157 ref.

(b) Interpretation of statutes---

----Preamble to an enactment---Preamble to a statute was not an operative part thereof, however the same provided a useful guide for discovering the purpose and intention of the legislature.

Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others PLD 1972 SC 279 ref.

(c) Interpretation of statutes---

----Object of statute---'Purposive approach'---While interpreting a statute a purposive approach should be adopted in accord with the objective of the statute and not in derogation to the same.

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

----S. 5(1)---Investigation launched without jurisdiction or lawful authority--- Effect--- Such investigation was liable to be struck down.

Zakriya Sh., DAG and Ahmed Rizwan, AD FIA for Appellants.

Ch. Naseer Ahmed Sandhu, Advocate Supreme Court for Respondent No.1.

Date of hearing: 24th August, 2015.

2016 S C M R 451

[Supreme Court of Pakistan]

Present Sarmad Jalal Osmany, Muhammad Athar Saeed and Mushir Alam, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellant

Versus

HYDERABAD BEVERAGE COMPANY PRIVATE LIMITED and others---Respondents

Civil Appeal No. 42-K of 2010, decided on 26th September, 2014.

(Against judgment dated 20-2-2009 of High Court of Sindh at Karachi, passed in High Court Appeal No.287 of 2007)

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

----S. 133---Discharge of surety/guarantor by variance in terms of contract---Continuous guarantee---Scope---Finance agreement between bank and borrower with respondent standing as guarantor/surety---Default by borrower---Concession/settlement agreement between bank, borrower and guarantor for rescheduling the loan arising out of the original finance agreement---Liability of guarantor/surety would continue in such circumstances as liability of guarantor/surety was co-extensive with the principal borrower, and more so since guarantor had waived his right and or defence in the present case against any variation of loan agreement.

Guarantor in widest terms agreed and consented that the bank could settle the debt by extending any concession "you think fit with or without reference or notice to me at all times without prejudice to this Guarantee and without discharging or in any way affecting my liability hereunder, grant time or other indulgence to or accept or make any composition or arrangement with the customer or any person or persons liable in respect of the indebtedness and liability hereby guaranteed and also vary, abstain from perfecting, exchange, renew, discharges, release, realize, enforce and deal with any securities, guarantees, obligations or decrees now or hereafter held by you in respect thereof". In the face of such pledge, the guarantor had bartered away his rights and or defence against any variation of contract, if any, under section 133 of the Contract Act, 1872 and "waived all surety-ship or other rights at any time inconsistent with the term hereof".

Aftab A. Sheikh v. Trust Leasing Corporation Limited 2003 CLD 702 and Lloyds Steel Industries Ltd. v. Indian Oil Corporation Ltd. AIR 1999 Delhi 248 ref.

Guarantee in the present case, was a continuing guarantee, consideration of which was the original finance agreement. Borrower defaulted in repayment where after, original finance agreement, was negotiated for a settlement as offered by the bank to which the guarantor was also a party thus, guarantor was liable under his guarantee being continuing guarantee. Such word of honour of guarantor under the original guarantee and subsequent supplemental agreement/guarantee was for the benefit of principal borrower arising out of original finance agreement. Bank rescheduled the loan amount that had swollen to Rs.33.50 million and had agreed to accept Rs.9.00 million in satisfaction of entire outstanding liability in installments. Guarantor had given his approval and consent to such rescheduling, in most unequivocal terms in the letter of guarantee. Any rescheduling, composition or manner of repayment in installment or any grace shown by the bank was with the concurrence and within the sight and contemplation of the borrowers as well as of guarantor, at the time of supplemental agreement and guarantee. Liability of surety was co-extensive with the principal borrower. Therefore, the guarantor continued to be bound by the terms of the guarantee. Record further showed that the incentive package offered to the borrower was not availed and same was withdrawn by the bank. Even otherwise, any abortive or attempted variation in terms of contract, which did not become effective, would not absolve the guarantor/surety of original contracted liability. Once the incentive package was withdrawn parties including the surety/guarantor were relegated to their respective original position as before the incentive offer was made and or acted upon. Respondent, in the present case, could not be absolved from his liability as guarantor/surety in respect of the loan advanced to the borrower.

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

----S. 133---Discharge of surety/guarantor by variance in terms of contract---Loan agreement between bank and borrower---Person standing as guarantor/surety for loan---Variation of loan agreement---Scope---Variation of contract (loan agreement), within the contemplation of S. 133 of the Contract Act, 1872, meant material variation or alteration in the original contract, that may prejudicially or adversely affect the surety---Any composition or concession offered by the creditor, whereby, rescheduling the liability with substantial markup waived or written-off leading to reduction in liability of borrower was normal banking practice, and the same did not amount to variation of finance agreement.

A.I. Chundrigar, Advocate Supreme Court for Appellant.

Abrar Hassan, Advocate Supreme Court for Respondent No.6.

Sanaullah Noor Ghouri, Advocate Supreme Court for Respondent No.7.

Date of hearing: 25th February, 2014.

2016 S C M R 460

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Mushir Alam, JJ

SENATE through Chairman---Petitioner

Versus

SHAHIQ AHMED KHAN---Respondent

Civil Petition No. 2515 of 2015, decided on 17th November, 2015.

(Against judgment dated 11-6-2015 of Federal Service Tribunal, Lahore, passed in Appeal No. 238(L)/CS of 2013)

(a) Civil service---

----Deputationist, absorption of---Pensionary benefits---Unlawful notification---Employee of statutory body [National Construction Limited (NCL)] not having the status of "civil servant" sent on deputation to Senate Secretariat---Notification for permanent absorption of such deputationist in Senate Secretariat issued without approval from competent authority/Chairman Senate---Such notification was unlawful and void ab initio---Further, deputationist was not entitled to pensionary benefits because deputationist's parent department (NCL) was not a pensionable organization, and thus his services in parent department (NCL) could not be counted towards his pension with respect to Senate Secretariat, and because he had also been compensated in terms of advance increments to protect him from any loss arising due to disentitlement from pensionary benefits---Case was remanded to Service Tribunal for decision afresh.

Respondent, who was working as Director, National Construction Limited (NCL) was inducted in the Senate Secretariat in BS-20. Subsequently, a summary was got prepared and also put up, ordaining that "his services in his parent department will count towards his seniority in the Senate from the date of promotion to Director Grade equivalent to BS-20 of Government scales". Said notification was issued despite the fact that summary moved in such regard was not approved by the competent authority/Chairman Senate. Significantly respondent was working as Acting Secretary Senate, and without formal approval of the Chairman Senate/competent authority, the notification for permanent absorption of the respondent in Senate Secretariat in BS-20 and for counting of his service in the parent department was issued. Notification in question was thus issued unlawfully and was void ab initio.

Perusal of U.O. No.F.4(1)R-2/2006-527, dated 03.11.2006, showed that NCL was a company having its own pay scale and service rules and its employees were not civil servants and their pay on appointment to a civil post under the Government was not protectable under the prescribed policy of Government, circulated vide Finance Division's O.M. dated 12.08.2002 and also that NCL was not a pensionable organization having Contributory Provident Fund Scheme for its retiring employees, therefore, the service rendered in NCL by respondent could not be counted towards his pension [in terms of Article 361 of Civil Service Regulations (CSR)].To protect the respondent from loss due to disentitlement of pensionary benefits, the Finance Division recommended that the respondent be compensated through grant of six advance increments. Chairman Senate accordingly approved six premature increments to the respondent. Question then arose that when the respondent had been compensated by means of six premature increments, how pensionary benefits could be awarded to him. Furthermore, the (unlawful) notification for respondent's permanent absorption did not mention anything about his pensionary benefits.

Supreme Court remanded the case to Service Tribunal for decision afresh.

(b) Civil service---

----Void notification---Not enforceable.

(c) Civil service---

----Void order/notification---No limitation was prescribed to competently and successfully challenged such an order/notification.

(d) Locus poenitentiae, principle of---

----Scope and application---Fraud---Principle of locus poenitentiae was meant to condone a bona fide mistake and could not be pressed into service for reaping the benefit of any fraud or to camouflage the same.

Sajid Ilyas Bhatti, DAG and Rana Mazharul Haq, Dy. Secy. for Petitioner.

Aftab Alam Rana, Advocate Supreme Court for Respondent.

Date of hearing: 17th November, 2015.

2016 S C M R 467

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Mushir Alam and Sardar Tariq Masood, JJ

SAJJAD IKRAM and others---Appellants

Versus

SIKANDAR HAYAT and others---Respondents

Criminal Appeals Nos. 165-L to 167-L of 2009, decided on 9th December, 2015.

(On appeal from the judgment dated 28-10-2008 passed by the Lahore High Court, Lahore in Crl. Appeals Nos.744, 749 and 798 of 2002, Crl. Revision No.605 of 2002, Crl. Revision No. 606 of 2002 and Crl. Appeal No.1048 of 2002)

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

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), Ss.397 & 382-B---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Reappraisal of evidence---Death sentence on three counts reduced to imprisonment for life on three counts---Concurrent running of sentences of life imprisonment on three counts---No previous enmity between parties---Motive for murder unproved---Improvements made by complainant party in order to exaggerate motive for the occurrence---Possibility that deceased entered land belonging to accused persons and attacked them, whereafter the accused persons while guarding their lives went beyond the limits laid down by law and murdered the deceased persons---Supreme Court in view of such circumstances directed that sentences of life imprisonment of accused persons on three counts and other sentences awarded to them in the present case should run concurrently, with the benefit of S. 382-B, Cr.P.C.---Appeal was dismissed accordingly.

Ghulam Haider v. The State 1984 SCMR 887; Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Mst. Zubaida v. Falak Sher 2007 SCMR 548 and Muhammad Sharif v. The State 2014 SCMR 668 ref.

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

----S. 397---Sentences passed against accused in more than one trial---Power of court to order concurrent running of such sentences---Court, while analyzing the facts and circumstances of every case, was competent to direct that sentences in two different trials (of an accused) would run concurrently---Provision of S. 397, Cr.P.C. conferred wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature.

Ghulam Haider v. The State 1984 SCMR 887; Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Mst. Zubaida v. Falak Sher 2007 SCMR 548 and Muhammad Sharif v. The State 2014 SCMR 668 ref.

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

----S. 382-B---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Period of detention to be considered while awarding sentence of imprisonment---Scope---Death sentence (on multiple counts) reduced to imprisonment for life (on multiple counts)---Benefit of S. 382-B, Cr.P.C. was also available to a person whose sentences of death under S. 302(b), P.P.C. had been subsequently converted to imprisonment for life---While passing the sentence, it was the duty of the Court to take into consideration the pre-sentence period which he had spent in connection with the offence for which he was convicted---Pre-sentence period should not go uncounted for.

Shah Hussain v. The State PLD 2009 SC 460 ref.

Ch. Abdul Ghafoor, Advocate Supreme Court for Appellants (in Criminal Appeal No.165-L of 2009).

M. S. Shad, Advocate Supreme Court for Appellants (in Criminal Appeals Nos.166-L and 167-L of 2009).

Syed ahmed Raza Gillani, APG, Punjab for the State.

Date of hearing: 9th December, 2015.

2016 S C M R 475

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

WORLD CALL TELECOM LTD. through Chief Executive Officer and others---Appellants/Petitioners

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY (PTA) through Chairman and others---Respondents

Civil Appeals Nos. 139 to 144 of 2013 and Civil Petition No.1384 of 2011, decided on 22nd December, 2015.

(On appeal against the judgment dated 21-1-2009 of the Islamabad High Court, Islamabad passed in F.A.Os. Nos. 7, 11 and 13 of 2008 and W.Ps. Nos. 705, 706, 741, 763 and 1526 of 2008)

(a) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 2(a) & 57---Access Promotion Rules, 2004, R. 2(a)---Access Promotion Rules, 2004, vires of---Access Promotion Rules, 2004 were framed within the scope of S. 57 of Pakistan Telecommunication (Re-Organization) Act, 1996---Although the expression "Access Promotion Contribution" (APC) was defined in S. 2(a), Pakistan Telecommunication (Re-Organization) Act, 1996 [as inserted by Pakistan Telecommunication (Re-organization) (Amendment) Act, 2006], but such definition was already in existence in the Access Promotion Rules, 2004 and in force since the year 2004---When levy of Access Promotion Contribution (APC) was not expressly prohibited by the Pakistan Telecommunication (Re-Organization) Act, 1996, it could not be said that Access Promotion Contribution (APC) or the Access Promotion Rules, 2004 providing therefor were either ultra vires the Act or inconsistent therewith.

C. E. Gibbon, Deputy Speaker, National Assembly v. Pakistan through the Secretary Ministry of Law and others PLD 1957 (W.P.) Karachi 956; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 and Salehon and others v. The State PLD 1969 SC 267 distinguished.

(b) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 21 & 57--- Conflict or inconsistency between the provisions of a licence and provisions of the Pakistan Telecommunication (Re-Organization) Act, and the relevant rules and regulations framed thereunder--- Latter shall prevail in case of such conflict.

(c) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 4, 5 & 57--- Functions and powers of Pakistan Telecommunication Authority (PTA)---Rules framed under S. 57 of the Pakistan Telecommunication (Re-Organization) Act, 1996---Acts done, orders passed, rights acquired or liabilities incurred by Pakistan Telecommunication Authority (PTA) pursuant to the rules framed under S. 57 of the Pakistan Telecommunication (Re-Organization) Act, 1996 could not be held to be outside the scope of the said Act.

(d) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----S. 2(a)---Access Promotion Rules, 2004, Rr. 2(a) & 5---Constitution of Pakistan, Arts. 78 & 79---Access Promotion Contribution (APC) for the Universal Service Fund (USF)---Could not be made part of Federal Consolidated Fund.

Amount exacted from the Access Promotion Contribution (APC) for the Universal Service Fund (USF) could not be made part of the Federal Consolidated Fund. Neither the parameters prescribed by Articles 78 and 79 of the Constitution for the Federal Consolidated Fund, nor the purpose of Access Promotion Contribution (APC) for the Universal Service Fund (USF) prescribed by the Pakistan Telecommunication (Re-Organization) Act, 1996 could be enlarged or extended without amendment in the Constitution and the said Act.

Khalid Anwar, Senior Advocate Supreme Court, M. Ali Raza, Advocate Supreme Court, Shahzad Shoukat, Advocate Supreme Court, Kh. Ahmed Tariq Rahim, Advocate Supreme Court, Afnan Karim Kundi, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Tariq Aziz, Advocate-on-Record and Syed Safdar Hussain, Advocate-on-Record for Appellants/Petitioners.

Ch. Aamir Rehman, Additional A.G., Waseem Sajjad, Senior Advocate Supreme Court, M. Ikram Ch. Senior Advocate Supreme Court, Azid Nafees, Advocate Supreme Court (For PTCL), Asim Hafeez, Advocate Supreme Court, Sardar M. Aslam, Advocate Supreme Court, Shamshadullah Cheema, Advocate Supreme Court (For FAB), M.S. Khattak, Advocate-on-Record, Waseem Anwar, A.D. Law (PTA), M. Khurram Siddiqui, Dir. Law (PTA), Bilal Afzal Khokhar, Consultant, PTA, Syed Sibt-e-Hassan Gardezi, AGM (Law), USF, Nasir Ayyaz, Director, Legal, M/o IT, Arif Sargana, Director (C.A.) Law, M/o IT and Ms. Ameena Sohail, Member (Legal), M/o IT for Respondents.

Dates of hearing: 16th, 17th April, 6th, 23rd May, 18th September, 2013, 23rd September, 12th, 13th, 15th, 26th October, 4th and 5th November, 2015. (Judgment Reserved)

2016 S C M R 484

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Qazi Faez Isa, JJ

HABIB SAFE DEPOSIT VAULT (PRIVATE) LTD.---Appellant

Versus

The PROVINCE OF SINDH through Secretary Finance and others---Respondents

Civil Appeal No. 911 of 2015, decided on 21st December, 2015.

(On appeal from the judgment dated 22-5-2015 in C.P. No. D-2603 of 2015 passed by the High court of Sindh Karachi)

(a) Sindh Sales Tax on Services Act (XII of 2011)---

----S. 2(79) & Second Sched, Tariff Headings 98.13, 9813.4900 & 9813.4910---Sales tax (15%) on services provided by Banking companies and 'other persons dealing in any such service'---Company running the business of providing safe deposit lockers to its customers---Such company was not a "banking company" but it would come within the phrase 'other persons' dealing in banking service, thus, liable to pay 15% sales tax.

Tariff Headings 98.13 of Second Schedule to Sindh Sales Tax on Services Act, 2011 provided that sales tax at the rate of 15% was imposed on services provided by Banking companies and 'other persons dealing in any such service'. Company in question, which ran the business of providing safe deposit lockers to its customers, argued that it was not a Banking company, thus it was not subject to the 15% sales tax. Revenue authorities claimed that company in question was liable to pay sales tax as it could not be excluded from "other persons" who dealt in "any such service", whether or not such company was a Banking company.

Company in question was not a Banking company but it did provide services of safe deposit lockers/safe vault to its customers, hence, it would come within the ambit of the phrase 'other persons' dealing in banking service as provided under Tariff Headings 98.13 of Second Schedule to Sindh Sales Tax on Services Act, 2011, which prescribed a rate of 15% sales tax. Company in question was thus liable to pay sales tax at 15% on the services that it provided.

(b) Interpretation of statutes---

----Tax statute---Tax rates mentioned in Tariff heading and subheading of a statute---Where a particular rate of tax was prescribed under a specific subheading, which was different from the general rate of tax mentioned in the tariff heading, the rate of tax prescribed in the subheading would apply on the principle that the specific excluded the general.

State v. Zia-ur-Rahman PLD 1973 SC 49 and Neimat Ali Goraya v. Jaffar Abbas Inspector/Sargeant Traffic 1996 SCMR 826 ref.

Agha Faisal, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Sheryar Qazi, Additional Advocate-General for Respondent No.1.

Syed Ahmad Hassan Shah, Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 17th November, 2015.

2016 S C M R 550

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Mushir Alam and Sardar Tariq Masood, JJ

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY---Appellant

Versus

FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED---Respondent

Civil Appeal No. 1149 of 2015, decided on 8th December, 2015.

(Against judgment dated 28-5-2015 of Lahore High Court, Lahore, passed in Intra Court Appeal No. 67 of 2015)

(a) Interpretation of statutes---

----Rules or Regulations made under a statute---Rules and Regulations which were the progeny or offspring of a statute were to be strictly interpreted in conformity with the provisions of the statute whereunder same were framed--- Rules framed under a statute were to remain within the precinct of the statute itself and could not transgress the limits and parameters of the parent statute itself---All efforts were to be made to interpret the rules so as to bring them in conformity and without injuring the intent and spirit of the statute, however where it was not possible then the rules in as much as they injured the very intent and spirit (of the statute) must yield to the statute.

Ziauddin v. Punjab Local Government 1985 SCMR 365; Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370 and Isa Ammal v. Rama Kudumban AIR 1953 Madras 129 ref.

(b) National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---

----R. 16(6)---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), Ss. 3(6), 5(1), 5(2)---Motion for leave for review---Motion to be decided by "full strength" of National Electric Power Regulatory Authority (Authority)---"Full strength"---Meaning---Rule 16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 ('Rules") required that an order or determination on motion for leave for review was to be made by "full strength" of the Authority---Phrase 'full strength' in such context meant strength as set down in S. 5(2) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("Act") i.e. minimum of three members---"Full strength" of Authority could not be construed as statutory strength i.e. all five members including the Chairman, since the Act, which was the parent statutes for the Rules did not permit so.

Motion for leave for review, in the present case, was heard by three Members of the National Electric Power Regulatory Authority (Authority). Respondent-Electric Supply Company argued that Rule 16(6) of National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 provided that "… a party may file a motion for leave for review by the full strength of the Authority…", which meant that review was to be decided by 'full strength' i.e. five Members of the Authority, whereas in the present case it was heard and decided by only three Members (including the Vice Chairman).

Section 5(2) of the Act provided in clear terms that three members shall constitute a quorum for meetings of the Authority requiring decisions by the Authority. Section 5(1) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("Act") provided that meeting of the Authority shall be presided over by the Chairman or, in his absence, the Vice Chairman. At the time when the decision on Motion for Leave to Review was handed down, in the present case, the Authority was comprised of two Members and a Vice Chairman, which met the minimum requirement of three members quorum set down in terms of section 5(2) of the Act.

Phrase "full strength", within the contemplation of Rule 16(6) of the Rules meant strength as set down in the Act itself, i.e. minimum of three members within the contemplation of section 5(2) of the Act. Said Act did not admit of any classification of Authority viz. statutory strength (i.e. all five Members including the Chairman), and none should be created when the parent statute/Act did not permit so.

Munawar-us-Salam, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Appellant.

Mir Afzal Malik, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 8th December, 2015.

2016 S C M R 621

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, Gulzar Ahmed and Dost Muhammad Khan, JJ

TAIMOOR KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.163 and 164 of 2013, decided on 4th February, 2015.

(On appeal from the judgment dated 16-5-2013 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Appeal No.333 of 2010)

Per Dost Muhammad Khan, J.; Anwar Zaheer Jamali and Gulzar Ahmad, JJ, dissenting. [Minority view]

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

----S. 34---Narcotics Testing Laboratory---Chemical Examiners---Ill-equipped laboratories---Chemical Examiners lacking required qualifications and experience---Lack of interest shown by Executive in assisting courts in narcotics cases---Observations made with respect to the (dismal) state of affairs of existing Narcotics Testing Laboratory and Chemical Examiners. [Minority view]

Following observations were made with respect to the dismal state of affairs of existing Narcotics Testing Laboratory and Chemical Examiners:

"Reports prepared by Chemical Examiners were not up to the mark. Chemical Examiners were taking their important task very lightly, conveniently ignoring the fact that their report alone would render the substance to be a particular narcotic substance. Existing Narcotics Testing Laboratories set up the Federal and Provincial Governments were neither modern laboratories, well equipped with the modern techniques, nor managed and headed by the experts of required qualifications and experience, essential for chemical analysis of narcotics. In this way, both the Federal and Provincial Governments had not fulfilled their statutory obligations under the provision of section 34 of Control of Narcotic Substances Act, 1997. Such attitude on the part of the Executive fully exposed the degree of interest it had taken, to assist in the administration of justice on matters relating to narcotics substance. For this very reason, the so-called (chemical) experts and ill-equipped laboratories were forwarding reports to the Courts, bereft of sound reasons. Such reports did not contain the chemical and physiological formula and percentage of each alkaloid found in the substance essential to form a fair conclusive opinion regarding its potency of causing intoxication."

Per Gulzar Ahmed and Anwar Zaheer Jamali, JJ; disagreeing with observations recorded by Dost Muhammad Khan, J. [Majority view]: In the present case there was no need to make observations on the qualification of a Chemical Examiner as there was no challenge before the court about such issue by the appellants/accused persons. To the extent of establishing Narcotic Testing Laboratories, the Government appeared to have fulfilled its statutory obligation. Whether these laboratories were modern or well-equipped, apparently there was no evidence before the Court in the present case to deal with such question nor there was any statement from the side of appellants/accused that the narcotic substance recovered from them was not sent to a modern and well-equipped narcotic testing laboratory. In the absence of any evidence on record, a general sweeping observation that the narcotic testing laboratories established by the Government were not modern and well-equipped would be too presumptive and in dealing with the criminal cases, carrying punishment of a high degree, it would unsettle the magnitude of the proof that was required to be established in such cases. In dealing with the criminal cases, the Court could not afford the luxury of dealing with the issues too liberally and going on to make observations and comments on aspects which were not directly related to the case. Court needed to take great care in giving of its judgment, which should confine itself to the matter in issue on the basis of evidence made available before the Court and the law applicable and there should not be any probing on the basis of speculations or presumptions unless the material before the Court justified undertaking of such an exercise.

Per Dost Muhammad Khan, J.

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

----S. 2(t)---'Opium' or 'opium derivatives'---Process by which consumable opium was derived from opium poppies stated.

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

----S. 2(t)---Dried/baked 'opium'---Two groups of Alkaloids found in dried opium---Morphine, codeine and thebaine (first group)---Isoquinolines, such as papaverine and Noscapine (second group)---Details of two groups of alkaloids found in dried opium and their use in manufacturing narcotic drugs stated.

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

----S. 34---Narcotics Testing Laboratory---Chemical Examiner, opinion of---Chemical Examiner had a heavy responsibility to give well-reasoned, authoritative and detailed opinion about a particular narcotic substance.

Under the provision of section 34 of the Control of Narcotic Substances Act, 1997 read with the relevant rules, the opinion of the notified expert alone was admissible in evidence and the person found in possession of narcotics substance was invariably punished on the opinion of the expert because the Investigating Officer, the Prosecutor or the Judges not being expert on the subject could not give legally acceptable opinion to such effect. Heavy responsibility was placed on the qualified Chemical Examiner by the law to give well-reasoned, authoritative and detailed opinion about a particular narcotic substance.

(e) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 3, 4 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Academic qualifications of a Chemical Examiner---Procedure for sending sample to Narcotics Testing Laboratory---Format and contents of Chemical Examiner's report---Rules 3, 4 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, were mandatory in nature, therefore, chemical analysis conducted in derogation to said Rules could not be relied upon for convicting an accused.

Under Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001 the Investigating Agency was required to send a sample in a reasonable quantity taken from each bag/slab/packet to the Testing Laboratory by insured post or through special messenger duly authorized for the purpose. Rule 6 required that after test or analysis, the result thereof, together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II, which shall be signed and stamped by the officer authorized and notified by the Federal Government in the Official Gazette. Said legal requirements were obligatory/mandatory in nature, therefore, if chemical analysis was carried/conducted in derogation of or in disregard to the required procedure, the report of the Chemical Examiner would lose its sanctity and could not be acted upon for the purpose of convicting a person.

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

----Ss. 9(c), 2(t), 2(w) & 2(x)---Control of Narcotic Substances (Government Analysts) Rules, 2001 , R. 6---Possession of narcotic substance---Reappraisal of evidence---'Crushed poppy heads' recovered from accused persons---Chemical Examiner's report not clearly and legibly mentioning percentages of Meconnic Acid, Sulphuric Acid, Porphyroxin, Alkaloids, Morphine and Codeine in the sample---Gross negligence on part of Chemical Examiner [Minority view]---Accused persons applying for re-examination of sample by another Laboratory but subsequently abandoning such plea---Presumption that accused persons apprehended result of re-examination of sample adverse to them---Appeal against conviction was dismissed in circumstances.

Per Dost Muhammad Khan, J. [Minority view]

Chemical Examiner, in the present case, mentioned that the sample was consisting of crushed poppy heads of brownish colour. Chemical Examiner had not clearly and legibly shown the percentage of Meconnic Acid, Sulphuric Acid, Porphyroxin, Alkaloids, Morphine and Codeine in the sample. Certainly it was a gross negligence on his part and the report prepared by him was absurd, meager, cryptic, insufficient and inconclusive. No one could be deprived of his lifelong liberty or sent to gallows unless and until the Chemical Examiner possessed the required qualification and experience, duly notified by the Federal Government and his report contained elaborate reasons giving percentage of each alkaloid contained in the narcotics substance and giving a conclusive opinion as to whether the required percentage of alkaloid was sufficient to cause intoxication and the substance so analyzed clearly fell within the definition of narcotics substance or not.

Accused persons submitted an application before Trial Court with a request to send a reasonable quantity of the preserved sample for re-examination through any other Laboratory however, at a subsequent stage, the accused persons did not press the application rather abandoned such plea and it was dismissed by the Trial Court. Such conduct of the accused persons/defence raised a strong presumption against them as they were apprehending another result adverse to them, otherwise there was no impediment in their way to have taken the matter to a logical conclusion getting clearance from the charge. Appeal was dismissed accordingly. [p. 633] J

Per Gulzar Ahmed, Anwar Zaheer Jamali, JJ; disagreeing with Dost Muhammad Khan, J. [Majority view]: Present case was a case of recovery of 'Crushed poppy heads' from the accused persons. In such circumstances there was no need for the Chemical Examiner to mention percentage of Meconic Acid, Sulphuric Act, Porphyroxin, Alkaloids, Morphine and Codein in his report for determining the question as to whether the recovered property case was "opium" or "poppy straw". However, it must not be understood to mean that the Chemical Examiner was not required to mention percentage of various chemical contents of the recovered property in every case. Whereever the law required, the Chemical Examiner was bound to give percentage of the chemical contents of the recovered property so as to give clear picture about it being a narcotic drug or not.

Khalil-ur-Rehman v. The State PLD 2005 Lah. 440; Muhammad Imran v. The State 2011 SCMR 1954 and State of Andhra Pradesh v. V. Madiga Boosenna and others AIR 1967 SC 1550 ref.

Report of Chemical Examiner in the present case mentioned different chemicals against which certain things were written which were not clear and unreadable. Labelling the said report to be absurd, meager, cryptic, insufficient and inconclusive in the context of the present case, was not necessary for that the report of Chemical Examiner, as it appeared, stood accepted on the basis of which the present appeals against conviction had been dismissed. If there was difficulty in reading the report of Chemical Examiner, the Chemical Examiner could have been asked to appear before the Court and explain what he had written in his report. Chemical Examiner in the present case had not committed gross negligence and there seemed to be no valid reason or justification to make such a strong observation when report of Chemical Examiner stood accepted.

Per Dost Muhammad Khan, J. [Minority view]

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

----Ss. 2(t), 2(w) & 2(x)---"Poppy straw", definition of---Definition of "poppy straw" (as it presently stood) under S. 2(t) of Control of Narcotic Substances Act, 1997 was misleading being vague and absurd---Government and the Legislature may take guidance from the international conventions and expert research opinions to amend definition clauses in the Control of Narcotic Substances Act, 1997 clearly drawing a distinction between "pure opium", "pods" and "straws" including the latex of the poppy plants to categorize which one was potential narcotic substance and which did not cause intoxication. [Minority view]

Definition of the 'poppy straw' although does not expressly mention the latex in liquid or dried form but the deducible inference would be that it spoke about the entire plant including the poppy pods containing latex/milky liquid, from which opium was obtained because the intended exclusion therefrom was the seeds inside the pod. Thus, fair conclusion would be that it did not speak with clarity about the opium as well, which was part of the poppy straw. The next question, thus, was that primarily it was the percentage of particular alkaloids in a particular substance, which would render the substance a narcotics substance because the universal conventions too laid emphasis to that effect. However, the vagueness and absurdity in the relevant definition clauses left behind much for debate and discussion. Once the latex/liquid inside the pod of poppy plant was obtained through the indigenous procedure, by emptying capsules/pods, out of which the seeds and remnants/micro particulars were removed/scrapped, the question as to whether it would still have intoxicating effect, was definitely a matter of high presumption and drawing conclusion in such regard would be highly unsafe unless research based opinion, both of international and national level was incorporated in the true and correct definition of "poppy straw", clearly drawing a distinction between "pure opium", "pods" and "straws" including the latex of the poppy plants to categorize which one was potential narcotic substance and which did not cause intoxication. Definition of "poppy straw" (as it presently stood) under section 2(t) of Control of Narcotic Substances Act, 1997 was misleading being vague and absurd. Government and the Legislature may take guidance from the international conventions besides the research oriented opinions of the experts on the subject while making amendments, addition or omitting something from the definition clauses so that the meaning of opium with regard to poppy straw was clearly provided and present confusion in the definition clauses was adequately removed.

Khalil-ur-Rehman v. The State PLD 2005 Lah. 440 ref.

Per Gulzar Ahmed and Anwar Zaheer Jamali, JJ, disagreeing with Dost Muhammad Khan, J. [Majority view]: Definition of the terms "opium" and "poppy straw" as given in Section 2(t) and Section 2(w) of the Control of Narcotic Substances Act, 1997 were elaborately considered in the case of Muhammad Imran v. The State (2011 SCMR 1954). In the said judgment Supreme Court did not find that there was any defect, flaw or omission in the definition clauses ("opium" and "poppy straw") requiring issuance of directions to the Legislature/Government to make good the deficiencies in the relevant provision of law. In presence of already existing and well considered opinion of the Supreme Court on the definition of terms "opium" and "poppy straw" being already in the field, in the first place the opinion of Supreme Court was necessarily to be considered and if any dissenting view or view different from the one already expressed was to be taken, the same could have been done after having tested the said opinion and by extending and discussing reasons for not agreeing with the same.

Khalil-ur-Rehman v. The State PLD 2005 Lah. 440 and Muhammad Imran v. The State 2011 SCMR 1954 ref.

Basharatullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Criminal Appeal No. 163 of 2013).

Muhammad Waheed Khan, Additional PG, Punjab for the State (in Criminal Appeal No.163 of 2013).

Malik Abdul Haq, Advocate Supreme Court for Appellants (in Criminal Appeal No. 164 of 2013).

Muhammad Waheed Khan, Additional PG, Punjab for the State (in Criminal Appeal No. 164 of 2013).

Date of hearing: 4th February, 2015.

2016 S C M R 646

[Supreme Court of Pakistan]

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

The COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LTU, KARACHI---Appellant

Versus

Messrs PAK SUZUKI CO. LTD., KARACHI---Respondent

Civil Appeal No. 515 of 2006, decided on 18th December, 2015.

(On appeal from the Order dated 8-9-2005 of the High Court of Sindh, Karachi, passed in Sales Tax Appeal No.214 of 2001)

(a) Interpretation of statutes---

----Remedial and curative enactments/statutes---Liberal interpretation---Retroactive application---As a general rule, courts look with favour upon remedial and curative enactments, which were beneficial in nature and were interpreted in the context of the evil to be cured and the mischief to be remedied---Provisions of such enactments were to be liberally construed so as to advance the remedy and suppress the mischief and to ensure that the legislative intent, in such behalf, was not frustrated---Remedial and curative statutes generally were retroactive in their application and applied to pending proceedings---In the absence of the express words to the contrary, such enactments should not ordinarily be construed to destroy vested rights, create new liabilities and obligations or disturb past and closed transactions---With regard to judgments passed prior to enactment of a remedial or curative statute, the finality thereof may be disturbed and destroyed during the pendency of appeal there-against, if such was the intention of the Legislator, which could be fairly gathered from the express words employed in the remedial or curative enactment.

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

----S. 47(11)---Section 47(11) of Sales Tax Act, 1990, remedial and curative effect---Appeals/references 'pending' before any Appellate forum or court---Section 47(11) of Sales Tax Act, 1990 in its application extended to "pending" appeals or references, before any court, including the Supreme Court.

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

----S. 47(11)---Remedial and curative effect of S. 47(11) of Sales Tax Act, 1990 applied only to "pending" appeals or references, and not to appeals or references which were not pending on the date when S. 47(11) came into force i.e. 1-7-2006.

Plain reading of section 47(11) of the Sales Tax Act, 1990, revealed that two conditions must be fulfilled before said section could be applicable; firstly, the appeal or references ought to have been filed with the approval of the Commissioner and, secondly, the reference or appeal was pending before an Appellate Forum of the Court. Only upon the satisfaction of both said conditions was the remedial and curative effect of section 47(11) of Sales Tax Act, 1990 attracted. Hence, section 47(11) of Sales Tax Act, 1990 applied (only) to "pending" appeals and references and defect in any such appeals or references alone stood cured and remedied. Intention of the legislature was not to extend the remedial and curative effect of section 47(11) of the Sales Tax Act, 1990 to appeals or references, which were not pending on the date when the said subsection came into force i.e. 1-7-2006. Had the intention of the Legislature been to the contrary, appropriate words to such effect would have been employed.

Syed Arshad Hussain Shah, Advocate Supreme Court along with M.S. Khattak, Advocate-on-Record for Appellant.

Syed Naveed Andrabi, Advocate Supreme Court for Respondent.

Date of hearing: 6th November, 2015.

2016 S C M R 655

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

MAJEED AND SONS STEELS (PVT.) LTD. and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary M/o Economic Affairs, Islamabad and others---Respondents

Civil Petitions Nos. 2532 to 2549 and 2580 of 2015, 2594 to 2600 of 2015, 2602 to 2603 of 2015 and 2608 to 2633 of 2015, decided on 18th September, 2015.

(On appeal against the judgment dated 28-8-2015 and 8-9-2015 passed by the High Court of Sindh Karachi in Constitution Petitions Nos.D-1494, D-873, D-1581, D-1582, D-1583, D-1729, D-1730, 2442, D-2758, D-2759, D-2760, D-3541, D-4015, D-4016, D-4087, D-4187, D-4521, 4583, D-4561, D-4563, D-4381, D-4289, D-2414, D-4218, D-4562, D-4564, D-4380, D-4565, D-4767, D-2972, D-4289, D-4218, 4377-D, 2387, D-4218, D-4072, 4032-D, 4370-D, 4402-D, 4217-D, 4886-D, 4218-D, D-344, D-4768, D-4217, D-1877, D-2387, D-4370, D-4378, D-344, D-4796, D-4288 of 2015)

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

----S. 18(5), proviso---General Agreement on Tariffs and Trade (GATT), Art. XXIV, Clause 5(b)---Proviso to S. 18(5) of Customs Act, 1969, interpretation of---Scope and application of said Proviso had been expressly limited to multilateral trade agreements, thus bilateral trade agreements could not be read into the said Proviso.

Proviso to section 18(5) of Customs Act, 1969 ("Proviso") provided that "…the cumulative incidence of customs-duties leviable under subsections (1), (3) and (5) shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements". Absence of the word bilateral from the said Proviso was significant and self-speaking. Bilateral trade agreements could not be read into the said Proviso. When the provisions of the Customs Act, 1969 were clear and unambiguous, court should not supply (an) omission and read in the statute what had been deliberately omitted.

Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150 ref.

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

----S. 18(5), proviso---General Agreement on Tariffs and Trade (GATT), Art. XXIV, Cl. 5(b)---Regulatory duty/customs duty on imported goods---Cumulative incidence of customs duties leviable under S. 18(1), (3) & (5) of the Customs Act, 1969---Rate of such duties should not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements.

Munir A. Malik, Senior Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record, Shahbaz Butt, Advocate Supreme Court, Khurram Saeed, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Faiz-ur-Rehman, Advocate-on-Record for Petitioners.

Raja Muhammad Iqbal, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Khurram Raza, Advocate Supreme Court and Ali Waheed Khan, Dy. Director of Customs MCC-Appraisement (EAST) Karachi for Respondents.

Date of hearing: 15th September, 2015 (Judgment Reserved)

2016 S C M R 662

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

Mst. SAADIA---Appellant

Versus

Mst. GUL BIBI---Respondent

Civil Appeal No. 194-P of 2010, decided on 18th December, 2015.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 24-11-2008 passed in C.R. No. 1575 of 2004)

(a) Gift---

----Gift deed, authenticity of---Prerequisites for valid gift i.e. "offer", "acceptance" and "delivery of possession" not proved---Non-examination of attesting witnesses of gift deeds---Interested witnesses presented to prove execution of purported gift deeds---Non-production of original gift deeds along with the plaint---Evidence of Hand Writing Expert not helpful in circumstances where photostat copies of purported gift deeds were used for comparing signatures---Possibility of manipulation/substitution/subsequent addition of attesting witnesses could not be ruled out---Gift deeds could not be termed as valid in such circumstances

Three important prerequisites for valid gift i.e. "offer", "acceptance" and "delivery of possession" had not been proved by the plaintiff and her witnesses in the present case.

Before the institution of suit by the plaintiff, the two purported gift deeds in her favour had not seen the light of the day in any manner/government record. Had the present case been a case of genuine gift in favour of plaintiff then there was no justification for her to withhold production of purported gift deeds for such a long period before filing the suit when all the attesting witnesses except one, had expired. Marginal witness of one of the purported gift deeds affirmed the fact that it was not signed by donor in presence of any person. Further, defendant was the only surviving legal heir of donor. Defendant was a minor at the time of donor's death and when she became major and agitated her claim over the suit house, plaintiff came out with the story of two gift deeds to legitimize her exclusive claim over the suit house. Original gift deeds were not produced along with the plaint even at evidence stage. Attesting witnesses of the two gift deeds were not examined. Evidence of witnesses appearing for the plaintiff was also of no help to the case of plaintiff to prove the authenticity or genuineness of the purported gift deeds.

Evidence of certain witnesses appearing on behalf of plaintiff revealed that they were interested witnesses installed for the purpose of justifying the execution and genuineness of the purported gift deeds. However, they also failed as their evidence was not confidence inspiring enough to prove the execution of purported gift deeds. Evidence of Hand Writing Expert was of no avail as all the documents sent to him; firstly, came from the possession of the plaintiff; secondly, the comparison of photostat copies with the originals was not warranted by law; and lastly such exercise was not a conclusive proof about the genuineness of one of the purported gift deeds.

Instead of following usual practice of having two attesting witnesses of purported gift deeds, they contained attestation by four witnesses at a time. For such reason too possibility of manipulation/ substitution/subsequent addition of other two witnesses could not be ruled out. Purported gift deeds could not be held to be valid in such circumstances.

(b) Registration Act (XVI of 1908)---

----Ss. 17 & 49---Oral gift, authenticity of---Unregistered gift deed executed between the donor and donee as an acknowledgment of past transaction of oral gift---Non-registration of such gift deed would not have much bearing as regards its authenticity or validity, however three important prerequisites for valid gift i.e. "offer", "acceptance" and "delivery of possession", had to be proved for such transaction to be valid.

Abdul Sattar Khan, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for Appellant.

Muhammad Shoaib Khan, Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 15th December, 2015.

2016 S C M R 670

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Umar Ata Bandial, JJ

MUHAMMAD RAFIQUE BHATTI and others---Petitioners

Versus

The COOPERATIVE JUDGE, LAHORE HIGH COURT, LAHORE and others---Respondents

Civil Petition No. 1648-L of 2010, decided on 15th October, 2015.

(On appeal from the judgment/order dated 26-4-2010 of the Lahore High Court, Lahore in W.P. No. 14739 of 2003)

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7(b), (e), (h) & (p)---Provincial Insolvency Act (V of 1920), S. 61--- Land belonging to a defunct Cooperative Finance Corporation---Chairman of Cooperative Finance Corporation selling land without authorization from Board of directors---Unauthorized sale---Land sold to purchasers to secure their priority and advantage over other similarly placed depositors/creditors of defunct Cooperative Finance Corporations---Collusive and illegal transaction---No objection certificate issued by Chairman for sale of subject land was rightly cancelled in such circumstances.

Land belonging to Cooperative Finance Corporation was sold to petitioners in exchange for cash deposit receipts ("CDRs") held by petitioners that were issued to them by two defunct Cooperative Finance Corporations ("defunct Corporations"). No resolution of the Board of Directors or the General Body of the Cooperative Finance Corporation was passed to authorize the sale of its land, fix the sale price thereof or to authorize adjustment of its value against cash deposit receipts ("CDRs") issued by the two defunct Corporations. The agreement to sell was executed by the Chairman of Cooperative Finance Corporation without delegation of authority by its Board of Directors. Nothing had been brought on record to show that the said Chairman had authority to unilaterally or single handedly sell the immovable property of the Cooperative Finance Corporation. Consequently, the agreements to sell seemed to be collusive. This was concluded also for the reason that at least 23 unconnected persons holding CDRs in the two defunct Corporations had, without being members of a family or a legal entity or having any other mutual link, combined to purchase immovable property from the Cooperative Finance Corporation. This was done without even fixing their individual shares in the property agreed to be purchased, indicating the presence of benami interests. The enterprise undertaken by the petitioners ostensibly sought pre-emptive recovery of their blocked funds in the two defunct Corporations by the acquisition of an asset having readily realizable value. By this means, they purported to secure priority and advantage over other similarly placed depositors/creditors of the two defunct Corporations.

General powers of a liquidator/receiver, namely, to avoid voluntary transfers and make pro rata distribution meant to treat similarly placed creditors of an insolvent entity equally were encapsulated in the provisions of S. 7 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. All the creditors of equal standing, in the present case, the CDR holders of the defunct CFCs were to be put to equal risk/loss in case of non-realization of their respective debts in entirety, however by way of sale of land the petitioners were given preference/priority over other creditors. No Objection Certificate issued by Chairman for sale of subject land was rightly cancelled in such circumstances.

(b) Provincial Insolvency Act (V of 1920)---

----Ss. 53 & 54---Liquidator/receiver of an insolvent entity, powers of---Voluntary transfers---Fraudulent transactions---Liquidator/receiver of an insolvent entity was vested with the power to avoid voluntary transfers made by the insolvent---Likewise, a liquidator/receiver had the power to avoid transactions that may be deemed to constitute fraudulent preferences.

(c) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7(b), (e), (h) & (p)---Provincial Insolvency Act (V of 1920), S. 61---Creditors of defunct Cooperative Finance Corporations (CFC)---Priority of debts---Cooperative Board appointed as liquidator, powers of---Scope---Provisions of S. 7 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 that conferred power on Punjab Cooperative Board for Liquidation ("PCBL"), to cancel agreements was, inter alia, for the general creditors of a CFC to be treated fairly and equally---Any discrimination by the erstwhile management/ controllers of the entity under liquidation for benefiting some over its other creditors belonging to the same class must therefore be curtailed and prevented---However, this would be subject to any lawful scheme notified by the PCBL or the Provincial Government under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 for settlement or adjustment of claims by depositors---Otherwise the settled principle of law for distribution of assets among the same class of creditors of an insolvent was done 'pro rata' through proportionate abatement of claims as envisaged in S. 61 of the Provincial Insolvency Act, 1920---By such method, all the creditors of equal standing, were put to equal risk/loss in case of non- realization of their respective debts in entirety.

Muhammad Munir Piracha, Advocate Supreme Court for Petitioners.

Nadeem-ud-Din Malik, Advocate Supreme Court and Khushi Muhammad Nazir, Manager (Properties) for Respondent No.2.

Date of hearing: 15th October, 2015.

2016 S C M R 676

[Supreme Court of Pakistan]

Present Mian Saqib Nisar, Faisal Arab and Tariq Parvez, JJ

CHAIRMAN NAB through PGA NAB Islamabad---Petitioner

Versus

MUHAMMAD KHALID---Respondent

Civil Petition No. 3451 of 2015, decided on 11th January, 2016.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 22-9-2015 passed in W.P. No. 23025 of 2015)

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

----S. 497(5)---Cancellation of bail by Supreme Court---Scope and grounds---Considerations for grant of bail and its cancellation were different---Once a court of competent jurisdiction by exercising its powers which were discretionary in nature had issued a favourable order in respect of a person accused in an offence, the Supreme Court was always slow to interfere unless it found that the order granting bail was against the record, perverse or unreasonable.

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

----Ss. 497(5) & 497(2)---National Accountability Ordinance (XVIII of 1999), S. 9---Misappropriation of money---Petition for cancellation of bail, dismissal of---Allegation that co-accused had transferred misappropriated money into a loan account belonging to the accused---Main beneficiary of the offence had been acquitted---Co-accused who transferred the misappropriated money into account of accused had also been acquitted---Role of the accused as to whether he was a beneficiary of the misappropriation required recording of independent evidence--- Mere fact that co-accused had been acquitted may not be a sufficient ground for granting bail to accused but it had made a dent in the prosecution case requiring further inquiry into guilt of accused---Petition for cancellation of bail was dismissed accordingly.

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

----S. 497(5)---Cancellation of bail---Grounds---Abscondence of accused---Bail could not be cancelled merely on ground of abscondence---Abscondence by itself could not be a substitute of evidence; it was a circumstance which was always taken in a criminal case as corroboration towards the guilt and not as proof of the guilt.

Nasir Mehmood Mughal, Special Prosecutor, NAB with Tariq Aziz, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 11th January, 2016.

2016 S C M R 679

[Supreme Court of Pakistan]

Present Ejaz Afzal Khan and Umar Ata Bandial, JJ

KHURSHID AHMAD and others---Appellants

Versus

Rana MUMTAZ AHMAD and others---Respondents

Civil Appeals Nos. 1540 and 2106 of 2006, decided on 13th January, 2016.

(On appeal from the order dated 27-6-2006 by the Lahore High Court, Lahore passed in C.Rs. Nos. 1325 of 2005 and 782 of 1998)

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

----S. 8---Chairman Evacuee Trust Property, powers of---Whether an evacuee property was attached to charitable, religious or educational trust or institution---Ouster of jurisdiction of Civil Court---Under S. 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the Chairman Evacuee Trust Property alone was competent to decide whenever any question arose as to whether an evacuee property was attached to charitable, religious or educational trust or institution or otherwise---Any proceeding in such regard before the Civil Court shall be coram non judice.

Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1 and Evacuee Trust Property Board through Deputy/Assistant Administrator, Evacuee Trust Property, Peshawar v. Ali Bahadur PLD 2011 SC 126 ref.

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

----S. 8---Declaration of property as evacuee trust property---Proof---Plea that there was no document on record showing that suit property had been attached to a charitable, religious or educational purposes---Validity---When preponderance of documentary as well as oral evidence on the record and verdict of the Chairman Evacuee Trust Board proved that the property in dispute was an evacuee trust property, the purported claimants were left with no locus standi muchless a cause of action to lay their hand on its ownership in any form and before any forum---Suit property was evacuee trust property from whatever angle it was looked at.

Argument that an isolated entry in the revenue papers showing suit property to be 'Gaoshala Society Bar' could not make it charitable in the absence of any document showing its dedication to charitable, religious or educational purposes was not correct.

Evacuee Trust Property Board v. Rahim Khan and 3 others 1989 SCMR 1605 ref.

Suit property had been entered as 'Gaoshala Society Bar' ever since 1938-1939 to 1960-1961. Nothing had been brought on the record to show that suit property had ever been individual property. Suit property had never been in possession of the purported claimants ever since its allotment; and it had been under the control and management of the Auqaf Department ever since 1964-1965, which conclusively proved that the property being evacuee had been attached to charitable, religious and educational trust or institution. Above all else the declaration given by the Chairman Evacuee Trust Board which went unchallenged and thus attained finality proved that the property in dispute was evacuee trust property from whatever angle it was looked at.

Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 and Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1 distinguished.

Syed Zafar Ali, Senior Advocate Supreme Court for Appellants (in C.A. 1540 of 2006).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. 2106 of 2006).

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Hafiz S. A. Rehman, Senior Advocate Supreme Court, M. Munir Peracha, Advocate Supreme Court and Hafiz M. Yousaf, Advocate Supreme Court for Respondents (in C.A. 1540 of 2006).

M. Akram Sh., Senior Advocate Supreme Court, Hafiz M. Yousaf, Advocate Supreme Court, Malik M. Qayyum, Senior Advocate Supreme Court and Naveed Akhtar, Advocate Supreme Court for Respondents (in C.A. 2106 of 2006).

Date of hearing: 11th December, 2015 (Judgment Reserved).

2016 S C M R 690

[Supreme Court of Pakistan]

Present Mian Saqib Nisar, Faisal Arab and Tariq Pervez, JJ

ASGHAR ALI SHEIKH and another---Appellants

Versus

LIAQAT ALI JATOI and others---Respondents

Civil Appeals Nos. 1611 and 1612 of 2014, decided on 6th January, 2016.

(Against the judgment dated 19-11-2014 of the Election Tribunal, Karachi passed in E.P. No. 9 of 2014)

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

---S. 69---Ground for declaring a person other than a returned candidate, elected---Pre-requisites---Requirements of S. 69 of the Representation of the People Act, 1976---Claim to be declared as duly elected must be made either by the election petitioner or any of the respondents to the election petition, and that the person seeking such declaration should be able to substantiate and make out his case vis-a-vis his entitlement to the satisfaction of the Election Tribunal---Satisfaction should not be a subjective assessment of the Tribunal rather must be objective in manner based upon the evidence brought on the record by the candidate who claimed to be declared as duly elected, and justifiable reasons must be duly recorded and assigned in such behalf---Such declaration could not be made ipso facto or as a matter of right, rather, such person seeking a declaration would have to prove allegations made by him in the election petition on the strength of his own positive evidence.

To seek a declaration under section 69 of the Representation of the People Act, 1976, the runner-up candidate had to prove on the strength of his own evidence his entitlement to be declared as duly elected.

Syed Hafeezuddin v. Abdul Razzaq and others C.A. No. 1086 of 2014 ref.

Runner-up candidate himself appeared as a witness and he produced and got exhibited his election petition which was to form his examination in chief. The other documents tendered in evidence by him were a certified copy of a complaint regarding the conduct of elections filed by his counsel to the Election Commission, a certified copy of an FIR pertaining to allegations vis-a-vis the elections and a certificate issued by a courier service company regarding verification of a receipt. Witness for the runner-up candidate, produced three documents which were a letter from the Additional Session Judge/Returning Officer stating that said witness has been deputed to produce documents pertaining to the election petition, and two complaints from the runner-up candidate to District Returning Officer, and Returning Officer respectively regarding certain anomalies in the conduct of election.

Merely exhibiting an election petition (even if verified on oath) was not a substitute for an examination on oath, in the form of statement by a witness, therefore in such respect the runner-up candidate's evidence was completely inadequate and could not be taken into consideration for the purposes of proof of the his entitlement to be declared as duly elected. Further, the FIR and various complaints/letters per se could not be deemed to be adequate, satisfactory and positive proof of the allegations leveled in the election petition, which (allegations) must be proved through independent evidence.

Even if runner-up candidate's testimony was not subjected to cross-examination, and thus went un-rebutted, it did not mean that an automatic conclusion should be drawn that such evidence was sufficient to 'satisfy' the Election Tribunal that the runner-up candidate should be declared to be duly elected in terms of section 69 of the Representation of the People Act, 1976. Runner-up candidate, in the present case, had not been able to prove on the strength of his own evidence that he was entitled to be declared a duly elected in place of returned candidate.

Runner-up candidate was unable to prove through positive evidence his entitlement to the satisfaction of the Election Tribunal to be duly elected under section 69 of the Representation of the People Act, 1976. Supreme Court directed the Election Commission to hold fresh elections in the constituency in accordance with law.

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

----Ss. 68, 69 & 70---Election of returned candidate declared as void---Principle of 'throw away' votes---Scope---Where election of returned candidate was declared as void, the runner-up candidate could not automatically be declared as duly elected on basis of discarding/ throwing away votes secured by returned candidate unless it could be proved that the said voters cast their vote despite the fact that they were aware of returned candidate's negative conduct in the elections---Votes secured by runner-up candidate may not necessarily be the true representation of the will of the people---Where votes obtained by returned candidate through corrupt practices were greater than the differential of votes between returned candidate and runner-up candidate, the result of the election would be materially affected.

Runner up to an election was not to be automatically declared as duly elected simply by virtue of having secured the next highest number of votes after discarding or 'throwing away' the votes secured by a returned candidate whose election had been declared to be void under section 68 of the Representation of the People Act, 1976. Raison d'être against automatic 'throwing away' of the votes of a person whose election had been declared to be void, was that such would result in disenfranchisement of the voters who voted for the returned candidate unless it could be proved that the said voters casted their vote despite the fact that they were aware of such person's negative conduct in the elections.

Perusal of the record, in the present case, indicated that there was no proof whatsoever brought by the runner-up candidate that the 56,938 voters who voted for the returned candidate were aware of any negative conduct of the returned candidate that would hurl doubt upon the validity of the votes cast, thereby potentially warranting throwing away of such votes.

Runner-up candidate only procured 22,803 votes as opposed to 56,938 votes secured by returned candidate, out of a total of 81,738 votes cast in the constituency, which highlighted the fact that votes secured by runner-up candidate (approximately 28% of the total votes), may not necessarily be the true representation of the will of the people. Real concept of elections was that the true representative of the people should come forth, therefore, in order to uphold the mandate of representative democracy enshrined in the Constitution, present elections should be declared to be void as a whole and fresh elections should take place to ensure that the peoples' desired representative was elected.

Another important aspect of the present case was that Election Tribunal found that 56,938 votes cast in favour of returned candidate (approximately 70% of the total votes cast in the constituency) were obtained through corrupt practices. These 56,938 votes, if excluded from the count, were greater than the differential of 34,135 votes between the votes secured by returned candidate and the runner up candidate. Thus, it could be said that the election had been materially affected in terms of section 70(a) and/or (b) of the Representation of the People Act, 1976, and therefore should be declared to be void as a whole (as opposed to declaring runner-up candidate as duly elected). Supreme Court directed the Election Commission to hold fresh elections in the constituency in accordance with law.

Wasim Sajjad, Senior Advocate Supreme Court and Raja M. Shafqat Khan Abbasi, Advocate Supreme Court for Appellants (in C.A. No. 1611 of 2014).

Kamran Murtaza, Advocate Supreme Court for Respondents (in C.A. No. 1612 of 2014).

Afzaal Ahmed Siddiqui, Advocate Supreme Court for Respondent No.1.

Date of hearing: 6th January, 2016.

2016 S C M R 700

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Faisal Arab, JJ

FAHMIDA BEGUM---Appellant

Versus

MUHAMMAD HANIF SIDDIQ and others---Respondents

Civil Appeal No. 43 of 2008 and H.R.C. No. 30266-S of 2010, decided on 3rd February, 2016.

(On appeal against the judgment dated 12-11-2007 passed by the High Court of Sindh in R.A. No. 68 of 1996)

Allotment---

----Property, allotment of---Dispute between daughter and son (litigants) over ownership of two properties allotted to their father---Lease in favour of daughter in respect of one such property ("disputed property")---Authenticity---Son acquiescing to such grant of lease and also relinquishing his claim over disputed property---Parents of litigants also intended that their daughter should have exclusive possession of disputed property---Even under laws of inheritance daughter was entitled to 2/3rd share in disputed property---Daughter lived in disputed property with her children during her lifetime and also raised construction thereon with her own financial resources---Daughter was entitled to exclusive ownership of disputed property in such circumstances.

Father of litigants (son and daughter) applied for allotment of two properties on basis of his refugee status. One property was allotted to the father, while the other ("disputed property") was allotted to the son, who admittedly had not attained the age of majority at that time. In such circumstances, both properties were to be regarded as owned by the father. Daughter was divorced, therefore in order to secure her future and that of her children, the father asked his son to execute relinquishment deed relating to disputed property in favour of daughter, which he did. Relinquishment deed was delivered by father to his daughter. Such facts were not specifically refuted when daughter was being cross-examined during the trial. Subsequently Municipal Corporation granted a new lease to the daughter in respect of disputed property. Son filed suit against daughter challenging the new lease but with a delay of about three years. Explanation provided by the son for such delay was that their mother asked him not to file a suit against his sister. Such fact also showed that whatever claim son may have had on the disputed property, after the execution of lease in favour of daughter, he at his mother's direction gave it up and acquiesced to the grant of lease in favour of daughter. Admittedly disputed property remained in exclusive possession of daughter where she lived with her children until her death. Furthermore, the intention of the father to secure the future of his divorced daughter having children to support could not be ruled out. Fact that disputed property was allotted in the name of son, who was then a minor, was to be regarded under the ownership of the head of the family i.e. the deceased father. Such right of the father apparently prompted him to direct his son to execute relinquishment deed in favour of his sister. Furthermore, the fact that the mother also prevented the son from taking legal action against his sister to which he also agreed, albeit for the time being, also showed that the intention of the mother was also to provide security of home to the daughter and her children. Decision of the parents to provide exclusive home for their daughter also implied that the mother too would not claim any right over the property which was originally allotted to the father and now stood in the name of the mother.

Fact that both the properties were to be regarded as owned by late father, therefore, even from such perspective, after the death of the parents, the son would have got 2/3rd whereas the daughter 1/3rd share in both the properties. Thus 1/3rd share of daughter in both the properties would mean 2/3rd share in disputed property. Daughter claimed that she had raised construction on disputed property through her own resources. Such claim could not be ruled out as she was gainfully employed during her lifetime, and construction raised was over an area of only 90 square yards (size of disputed property). Therefore, it could be presumed that she had the financial capacity to raise the entire construction on disputed property. Decision of the parents and execution of relinquishment deed only gave the daughter 1/3rd more share in the properties, which otherwise would have gone to the son. In the circumstances of present case, the daughter had become entitled to exclusively own disputed property.

Imran Ahmed, Advocate Supreme Court for Appellant.

R.F. Virjee, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 15th January, 2016.

2016 S C M R 707

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Manzoor Ahmad Malik, JJ

ABDUL HAMEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 536 of 2010, decided on 21st January, 2016.

(Against the judgment dated 5-8-2010 passed by the Lahore High Court, Lahore in Criminal Appeal No.172 of 2008)

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

----Ss. 9(b) & 9(c)---Possession of narcotic---Reappraisal of evidence---Sentence, reduction in---Consolidated sample---Charas recovered from accused was packed in 44 packets weighing one kilogram each---Instead of taking 44 separate samples of the recovered substance only one consolidated sample weighing 200 grams was separated from the recovered substance---Only one kilogram of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence---Conviction of accused for an offence under S. 9(c), Control of Narcotic Substances Act, 1997 was converted into conviction for an offence under S. 9(b) of the said Act, and his sentence was reduced to imprisonment for one year and nine months along with a fine of Rs. 13,000.

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

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 21st January, 2016.

2016 S C M R 722

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Tariq Pervez, JJ

MUHAMMAD IBRAHIM JATOI---Appellant

Versus

AFTAB SHABAN MIRANI and others---Respondents

Civil Appeal No. 448 of 2014, decided on 4th January, 2016.

(Against the judgment dated 5-3-2014 of the Election Tribunal, Sukkur passed in E.P. No. 342 of 2013)

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

----S. 55---Civil Procedure Code (V of 1908), O. VI, R. 15---Sindh High Court Rules (Original Side)---Election petition, verification of---Objection was that the election petition was not supported by a full affidavit as per the requirement of the provisions of the Sindh Chief Court Rules---Under S. 55 of the Representation of the People Act, 1976, the only requirement of law was regarding verification as per the provisions of O. VI, R. 15 of the Code of Civil Procedure, 1908 and not vis-a-vis any affidavit required to be given in support of the election petition---Objection regarding furnishing of a full affidavit was rejected accordingly.

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

----S. 64---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 5(4)(h) & 7(1)(i) & Preamble---Qanun-e-Shahadat (10 of 1984), Art. 59---Election Tribunal, jurisdiction of---Verification of election material from National Database and Registration Authority (NADRA)---Election Tribunal had the jurisdiction to seek verification of election material from NADRA---Where a question of any voter's identity was involved the process of verification and authentication could be carried out by NADRA.

Election Tribunal had the jurisdiction to seek the assistance and expert opinion from any organization.

Section 7(1)(i) of the National Database and Registration Authority Ordinance, 2000 allowed for National Database and Registration Authority (NADRA) to provide the requisite access into the National Data Warehouse (i.e. the central data warehouse based on the data and information from the Citizens Database) to all Government, semi-Government and private institutions in such manner and for such fee as may be prescribed by regulations. Further section 5(4)(h) of the said Ordinance allowed NADRA to charge a prescribed fee for its services or for provision of any information or report to any Governmental, private entity etc. from its databases, and such services/ could always be received and resorted to by the Courts and the Tribunals of law and the skill and expertise of NADRA could be taken as an expert opinion in terms of Article 59 of the Qanun-e-Shahadat, 1984. National Database and Registration Authority (NADRA) was the only body vested with the authority by statute to issue National Identity Cards, the numbers of which were used as the primary method for identification of voters for the purposes of issuance of ballot papers and to cast their vote at an election. Thus, where a question of any voter's identity was involved the process of verification and authentication should obviously be carried out by NADRA.

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

----S. 70---Verification report of used counterfoils from disputed polling stations--- Votes containing illegalities greater in number than the difference between total votes obtained by returned candidate and runner-up candidate---Result of election was thus materially affected---Re-election in disputed polling stations was justified in circumstances.

Report prepared by National Database and Registration Authority (NADRA) showed that 2,283 used counterfoils contained invalid National Identity Card numbers, which also included such counterfoils that did not mention any Computerized National Identity Cards; that 1,098 used counterfoils contained duplicate voters; that 35 used counterfoils were without fingerprints, and 1133 used counterfoils contained fingerprints that failed authentication. Combined count of such votes containing illegalities was 4,549 votes, which was greater than the differential of 1252 votes between the returned candidate and runner-up candidate. Election result in the constituency was thus materially affected. Election Tribunal in such circumstances rightly held that the result of disputed polling stations declaring the appellant as a returned candidate was void and ordered for re-election in the said polling stations.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondent No.1.

Ex parte for other Respondents.

Date of hearing: 4th January, 2016.

2016 S C M R 733

[Supreme Court of Pakistan]

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

Sheikh MUHAMMAD AKRAM---Appellant

Versus

ABDUL GHAFOOR and 19 others---Respondents

Civil Appeals Nos.616 and 617 of 2014, decided on 3rd February, 2016.

(On appeal from the judgment dated 9-4-2014 of the Election Tribunal, Faisalabad passed in E.P. Nos.33 and 54 of 2013)

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

----Ss. 14 & 76A(1)---Penal Code (XLV of 1860), Ss. 279 & 337-F---Nomination papers---Returned candidate failing to disclose a pending case of rash driving in his nomination papers---Returned candidate could not be de-seated in terms of S. 76A of the Representation of the People Act, 1976 on account of such non-disclosure as the criminal case was not a very serious offence, being basically a traffic offence---Non-disclosure of a pending case could not be equated with the non-disclosure of a criminal case in which a person had been convicted and one which may entail his disqualification---Returned candidate, in the present case, was thus qualified to contest elections, and was not disqualified because of the pendency of the criminal case---Complainant of the case of rash driving had resiled from his complaint, consequently, the returned candidate was acquitted---At the stage of scrutiny of the returned candidate's Nomination Form no objection was taken regarding the non-disclosure of the said case, and if it had been taken, the returned candidate could have mentioned the same in paragraph 4 of the Nomination Form without any adverse consequences---Returned candidate was not provided with an opportunity to correct his Nomination Form---Pendency of the case in respect of a traffic offence may not be a sufficient reason to dissuade those who had voted for the returned candidate not to have done so---Election of returned candidate could not be declared to be void in such circumstances---Supreme Court declared returned candidate as the elected candidate from the constituency.

Sadiq Ali Memon v. Returning Officer, NA-237 2013 SCMR 1246 and Abdul Ghafoor Lehri v. Returning Officer, PB-29 2013 SCMR 1271 distinguished.

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

----Ss. 12(1) & 76A(1)---Representation of the People (Conduct of Election) Rules, 1977, R. 3---Nomination papers of returned candidate---Discrepancies/errors in particulars of the seconder---Incorrect Computerized National Identity Card Number (CNIC)---When discrepancies/errors in particulars of the seconder were not substantial in nature and correction of such errors was specifically permitted under the law, such discrepancies could not have been made a ground for unseating the returned candidate in a post-election dispute---Only requirement in the Representation of the People Act, 1976 and the Representation of the People (Conduct of Election) Rules, 1977 for a proposer and seconder was for them to be electors of the constituency from where the candidate was standing---In the present case, the seconder was a registered voter of the constituency from where the returned candidate contested the election---Nomination papers of returned candidate were held to be valid accordingly.

With regard to the discrepancies in the particulars of the seconder, it was not the case of other contesting candidates in the constituency, nor had it been so established, that the seconder was not a registered voter of the constituency, which may have been the only matter meriting consideration by the Election Tribunal.

Admittedly, the seconder's name was in the electoral roll of the electoral area from where the returned candidate was contesting elections. The seconder simply sought the correction in his CNIC because in the place provided for his father's name his own name had been repeated. Similarly, mentioning the incorrect number of the CNIC could hardly be categorized as being of a substantial nature. Second proviso to section 14(3) of the Representation of the People Act, 1976 specifically permitted the correction of such errors. The only requirement in the Representation of the People Act, 1976 and the Representation of the People (Conduct of Election) Rules, 1977 for a proposer and seconder was for them to be electors of the constituency from where the candidate was standing.

Since, the seconder was an elector of the constituency from where the returned candidate was contesting elections therefore in such regard the nomination paper submitted by the returned candidate was valid. Non-substantial discrepancies in some of the particulars of the seconder could not have been made a ground for unseating an elected candidate in a post-election dispute.

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

----Ss. 69 & 76A(1)---Ground for declaring a person other than a returned candidate elected---Under S. 69 of the Representation of the People Act, 1976, a runner up candidate or any other contesting candidate could be declared elected, but before declaring so such other candidate's entitlement must be established---Election Tribunal must therefore be "satisfied" that another candidate was "entitled" to be declared elected (in place of the returned candidate).

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

----Ss. 69 & 76A(1)---Ground for declaring a person other than a returned candidate elected---Concept of 'throw away votes'---Meaning and applicability---When the Election Tribunal was considering deseating a returned candidate and declaring the runner up or any other candidate as elected, it should determine whether the votes cast in favour of the returned candidate had been thrown away---Concept of thrown away votes meant that voters intentionally cast votes in favour of a candidate who was known to the voters to be manifestly disqualified, resultantly the votes so cast may be treated to have been thrown away---Where the returned candidate was not disqualified to contest elections, the votes polled by him/her, which would be the majority of the votes, could not be disregarded (under the concept of throw away votes) nor could it be presumed that the runner up would have got the returned candidate's votes.

Makhdoom Ali Khan, Senior Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant (in both cases).

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos.1-2 (in C.A. 616 of 2014 and C.A. 617 of 2014).

Babar Awan, Senior Advocate Supreme Court for Respondent No.1 (in C.A. 617 of 2014).

Date of hearing: 8th December, 2015.

2016 S C M R 748

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Umar Ata Bandial and Maqbool Baqar, JJ

ABDUL HAMEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 830-L of 2015, decided on 26th August, 2015.

(On appeal from the judgment/order dated 1-7-2015 passed by Lahore High Court, Multan Bench in Cr. Misc. No. 1870-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 462-B, 462-F, 379 & 411---Theft of oil by tampering with main petroleum pipeline---Bail, refusal of--- Accused caught red handed at the spot while in possession of 8000 liters of stolen crude oil, stolen from the main supply line by applying a clump---Sections 462-B & 462-F, P.P.C., with which accused was charged fell within prohibitory clause of S. 497, Cr.P.C.---Case for grant of bail was not made out---Bail was refused accordingly.

Ch. Nisar Ahmad Kausar, Advocate Supreme Court for Petitioner.

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

Hasnat Ahmed Khan, Advocate Supreme Court for the Complainant.

Date of hearing: 26th August, 2015.

2016 S C M R 750

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Tariq Parvez, JJ

FEROZE AHMED JAMALI---Appellant

Versus

MASROOR AHMAD KHAN JATOI and others---Respondents

Civil Appeal No. 301 of 2014, decided on 26th January, 2016.

(Against the judgment dated 10-1-2014 of the Election Tribunal, Sukkur passed in E.P. No.286/2013)

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

----S. 55--- Election petition, verification of--- Defect/lapse in verification---Petitioner had not specifically mentioned as to which paragraphs of the election petition were verified upon his own knowledge and which were upon information received and believed to be true---Such defect was not very material---Although the validity of the verification of election petition shall depend on the facts of each case, but in the present case, there was no lapse of any material consequence, warranting dismissal of the election petition on such ground simpliciter---Appeal was allowed accordingly.

Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others 2010 SCMR 1877 and Sardarzada Zafar Abbas and others v. Syed Hassan, Murtaza and others PLD 2005 SC 600 ref.

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

----S. 55---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Compliance with O. VI, R. 15, C.P.C.---Verification part of the election petition in the present case complied with the provisions of O. VI, R. 15 of C.P.C. in letter and spirit---Respondent argued that the election petition did not mention the date, day and place of the verification or the proper identification of the petitioner, suffice it to say that at the bottom of the petition (in the verification portion), though not in typed form the date had been clearly written by hand---Stamp of the Oath Commissioner appearing on the left of the verification portion of the election petition also mentioned the date (albeit also written by hand)---With respect to attestation, the Oath Commissioner in clear and unequivocal terms had stamped 'on S.A. before me' (i.e. on solemn affirmation before me), which clearly indicated that the petitioner was duly present before the Oath Commissioner at the time of attestation and was administered oath---As regards identification of the petitioner, he had been duly identified by an advocate who had mentioned that he knew the petitioner personally; thus there was no defect in the verification---Appeal was allowed accordingly.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 ref.

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

----S. 55---Annexures to an election petition requiring verification---Scope---Only those annexures required verification which either made additional allegations of a substantive character against the opposite-party, or at least furnished better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself.

Documents appended with election petition in the present case comprised of notification of the Election Commission, statements of count, various provisional results, applications for recounting of votes and complaints made by the petitioner regarding anomalies in the election process. Said documents were not documents propounding and setting out any independent or additional substantial grounds for challenging the election or furnishing at least better particulars of the allegations in the petition so as to give such documents the status of independent and substantial grounds of the petition itself challenging the election on the basis thereof. Documents in question could not be said to be annexures requiring verification.

S.M. Ayub v. (1) Syed Yusaf Shah, (2) Major Tilla Khan Sadozai and (3) Election Tribunal, West Pakistan, Lahore PLD 1967 SC 486 ref.

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

----Ss. 33 & 70---Verification of counterfoils of ballot papers---Counterfoils containing invalid National Identity Card (NIC) numbers or containing no fingerprints/thumb impressions---Effect---Such counterfoils did not comply with S. 33 of the Representation of the People Act, 1976, therefore ballot papers corresponding to such counterfoils had to be excluded from the vote count---In the present case, such counterfoils were greater in number than the difference between the number of votes secured by the returned and runner-up candidate, thus, the result of the election had been materially affected---Election in question was set aside with the direction to Election Commission to hold fresh election.

Verification of counterfoils from disputed polling stations was conducted by National Database and Registration Authority (NADRA) and the report prepared in such regard mentioned that 2,147 used counterfoils had invalid National Identity Card (NIC) numbers (meaning thereby that the said used counterfoils either contained NIC numbers that were never issued by NADRA or had no mention of NIC number thereupon). Mentioning of such number was a mandatory requirement under section 33 of the Representation of the People Act, 1976. Report prepared by NADRA also mentioned that 61 used counterfoils contained no fingerprints/thumb impressions on them, which again was non-compliance of section 33 of the Representation of the People Act, 1976. Thus the total votes which from the report of NADRA were not issued as per the used counterfoils came to 2,208 and thus the ballot papers corresponding thereto were liable to be excluded.

Requirement of law was that voter had to be properly identified and his correct NIC had to be noted on the counterfoils, however the same was not done in the present case with respect to the disputed counterfoils. Object of requiring affixation of thumb impressions and to record NIC numbers on the counterfoils was to ensure that the correct voter to whom a ballot paper had been issued cast his vote and subsequently to provide a reference point to find out if any bogus votes had been cast in the election. Votes in the present case that had to be excluded, i.e. 2,208 (2,147 plus 61 votes) were greater in number than the differential of 1,611 votes between the number of votes secured by the returned and runner-up candidate. Result of the election thus had been materially affected, bringing the present case within the purview of the provisions of section 70 of Representation of the People Act, 1976, warranting declaration of the election to be void as a whole. Supreme Court declared the election in question as void and directed the Election Commission to hold fresh elections in the said constituency in accordance with law.

Farooq H. Naek, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Agha Faisal, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No.1.

Ex parte for other Respondents.

Date of hearing: 11th January, 2016.

2016 S C M R 763

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Khilji Arif Hussain, JJ

MUHAMMAD AHMAD CHATTA---Appellant

Versus

IFTIKHAR AHMAD CHEEMA and others---Respondents

Civil Appeal No.1020 of 2014, decided on 25th January, 2016.

(On appeal from the judgment dated 20-5-2014 passed by the Election Tribunal, Lahore in Election Petition No.190 of 2013)

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

----Ss. 12(2)(f) & 76A---Nomination papers, rejection of---Non-disclosure of Bank account and properties belonging to spouse---When the case record established that returned candidate neither submitted statement regarding assets of his spouse nor disclosed one of his Bank accounts at the time of filing nomination papers, the Election Tribunal should not have dismissed the election petition on the grounds that mens rea was not proved and that Government exchequer had not suffered any loss on account of such non-disclosure---Supreme Court declared election of returned candidate as void.

From perusal of record, it transpired that at the time of submitting his nomination papers, an amount of Rs.25,28,893.90/-, was available in one of candidate's Bank accounts, which fact was not disclosed by him in his nomination papers. For all practicable purposes, the account was operative and the returned candidate, for reasons best known to him, deliberately did not mention the same in his nomination papers.

Malik Muhammad Sameen Khan v. Returning Officer 2012 CLC 820 and Hassan Nawaz v. Election Commission of Pakistan 2013 CLC 1101 distinguished.

Khaleefa Muhammad Munawar Butt v. Hafiz Muhammad Jamil Nasir 2008 SCMR 504 and Muhammad Jamil v. Munawar Khan PLD 2006 SC 24 ref.

While submitting the nomination papers, the returned candidate had not submitted statement regarding assets of his spouse as required under section 12 of the Representation of the People Act, 1976. Election Tribunal, without taking into consideration such aspect of the case, dismissed the election petition merely on the ground that mens rea was not proved and further the government exchequer had not suffered any loss on account of non-disclosure by the returned candidate. Such finding of the Election Tribunal was against the spirit of law and as such called for interference. Supreme Court declared election of returned candidate as void in circumstances.

(b) Islamic law---

----Inheritance---Custom of surrendering inherited share by female legal heirs in agricultural land to male legal heirs---Such custom was not only against injunctions of Islam but also violative of the Constitution and the law---Courts should not take notice/consider any such custom.

Syed Hamid Ali Shah, Advocate Supreme Court for Appellant.

Mubeenuddin Qazi, Advocate Supreme Court with Tariq Aziz, Advocate-on-Record for Respondent No.1.

Respondent No.10 in person.

Ex parte for Respondents Nos. 3 - 9, 11 - 16.

Date of hearing: 25th January, 2016.

2016 S C M R 769

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Tariq Pervez, JJ

Raja GHOUS BUX BIJARANI---Appellant

Versus

Sardar GHULAM ABID KHAN and others---Respondents

Civil Appeal No. 651 of 2014, decided on 7th January, 2016.

(Against the judgment dated 19-3-2014 of the Election Tribunal, Sukkur, passed in E.P. No. 271 of 2013)

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

----S. 70---Counterfoils verification report---Non-verified counterfoils/ votes--- Counterfoils verification report mentioning that certain counterfoils did not qualify for fingerprint matching, while others contained fingerprints of bad quality--- Such non-verified counterfoils/votes could not be declared to be bogus votes (simply) on account of their non-verification unless the verification report unequivocally and positively identified them to be bogus.

On request of runner-up candidate/appellant the National Database and Registration Authority (NADRA) examined counterfoils from disputed polling stations. Report prepared by NADRA in such regard stated that 2,415 counterfoils did not qualify for fingerprint matching, and 2,508 counterfoils contained fingerprints of bad quality. Election Tribunal came to the conclusion that on account of non-verification of 2,415 and 2,508 votes it could not be held that these votes were bogus. Runner-up candidate/appellant argued that at least the 2415 votes, which had not been verified on account that the "counterfoils did not qualify for fingerprint matching", should be excluded from the total count, and since such unverified votes (2415 in number) were greater than the differential of 1,680 votes between the runner-up candidate and the returned candidate, therefore, the election result had been materially affected in terms of Section 70(a) of the Representation of the People Act, 1976.

Runner-up candidate never contended that the thumb impressions on the disputed votes did not match the National Identify Card numbers of the voters or that more than one person had affixed their thumb impressions on the counterfoils to hold that the ballot papers were not validly issued to the voter. Rather runner-up candidate's case was restricted to the fact that as the verification could not be conducted by NADRA therefore the necessary conclusion be drawn that these votes were bogus.

Runner-up candidate might have had a case for excluding the disputed votes from the total count if the report prepared by NADRA was unequivocal and positive to the effect that there was no mention of the National Identity Card on the counterfoil; or that the thumb impression of the voters were not affixed thereto; or the National Identity Card mentioned on the counterfoil was bogus meaning thereby that such card had not been issued by NADRA; or that the National Identity Card numbers did not tally with the thumb impressions; or the thumb impressions did not correspond with the National Identity Card numbers; or that the counterfoils bore the thumb impression of one person; or more than one person had affixed his thumb impression on a number of counterfoils. However as this was not the position in the present case, thus such votes (i.e. non-verified) could not be declared to be bogus and excluded from the count altogether, so as to hold that the election result was procured by the returned candidate through illegal and corrupt practices or that there had been non-compliance of the provisions of the Representation of the People Act, 1976 or the Rules made thereunder, thereby bringing the case within the purview of Section 70(a) or (b) of the said Act. Election Tribunal came to the right conclusion that on account of non-verification of disputed votes it could not be held that these votes were bogus.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Appellant.

Farooq H. Naek, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shan, Advocate-on-Record for Respondent No.1.

Date of hearing: 7th January, 2016.

2016 S C M R 773

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Qazi Faez Isa, JJ

CHAIRMAN FEDERAL BOARD OF REVENUE and others---Petitioners

Versus

IQBAL HUSSAIN SHAIKH and others---Respondents

Civil Review Petitions Nos.43-K to 45-K of 2012 in Civil Appeals Nos.189-K to 191-K of 2011, Civil Review Petitions Nos.2-K, 3-K of 2013 in Civil Appeal No. 189-K of 2011, Civil Review Petitions Nos.4-K, 5-K of 2013 in Civil Appeals Nos.190-K, 191-K of 2011, Civil Review Petitions Nos.6-K, 7-K of 2014 in Civil Appeal No.189-K of 2011, C.M.A. No. 2238 of 2014 in Civil Review Petition No. Nil of 2014 in Civil Appeal No. 189-K of 2011, C.M.A. No.2242 of 2014 in Civil Review Petition Nil of 2014 in Civil Appeal No.190-K of 2011, C.M.A. No.2246 of 2014 in Civil Review Petition Nil of 2014 in Civil Appeal No.191-K of 2011, decided on 11th November, 2015.

(On review against the judgment dated 6-11-2012, passed by this Court in C.As. Nos.189-K to 191-K of 2011)

Civil Servants (Seniority) Rules, 1993---

----R. 4---Seniority in service---Deputationist---Seniority of persons on deputation was to be reckoned from the date of their regular appointment/permanent absorption in the transferee Group or Department and not from their posting or transfer (date) or any earlier date.

Respondents/civil servants were initially recruited and serving in different service groups. Pursuant to the decision of structural expansion of the Income Tax Group of the Federal Board of Revenue, it was decided to solicit options from the officers serving in various other Departments, for joining the Income Tax Group on deputation. Respondents expressed their willingness to join the Income Tax Group. Their case was considered by the Joint Committee constituted in such behalf and 72 Officers including the respondents were selected subject to, inter alia, the conditions that they would undergo training, pass the Departmental examination and would serve on deputation with the Income Tax Group for initial period of five years and were likely to be absorbed and inducted in the said Group. Consequently respondents were appointed on deputation in the Income Tax Group vide Notification dated 19.3.1994. After the lapse of the initial period of five years a formal decision was eventually taken to seek option from the said Officers serving on deputation in the Income Tax Group for their absorption and induction in the said Group. However, the said decision was not implemented, whereafter such officers including respondents initiated litigation which resulted in the Supreme Court declaring that respondents were inducted in the Income Tax Group of Central Board of Revenue (now Federal Board of Revenue) w.e.f. 01.1.2001, however their seniority was to be reckoned from 26.03.1994.

Seniority of respondents was to be determined in terms of Rule 4 of Civil Servants (Seniority) Rules, 1993, which provided that seniority of persons on deputation was to be reckoned from the date of their regular appointment/permanent absorption in the transferee Group or Department and not from their posting or transfer (date) or any earlier date. Seniority of respondents in the present case, therefore, was to be reckoned from the date of their induction and regular appointment in the transferee Department i.e. Income Tax Group, which had been settled by the Supreme Court to be 01.01.2001. It was obviously from such date that seniority of respondents in terms of Rule 4 of the Civil Servants (Seniority) Rules, 1993 must necessarily be reckoned. Review petition was allowed accordingly.

Muhammad Arshad Sultan, Section Officer Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 and Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185 distinguished.

S.M. Farooq and others v. Muhammad Yar Khan and others 1999 SCMR 1039; Hamid-ul-Hassain and others v. Federation of Pakistan through Secretary, Establishment and others 2006 SCMR 832 and Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others 2003 SCMR 333 ref.

Akhtar Ali Mahmud, Advocate Supreme Court for Petitioners (in C.R.Ps. 43-K to 45-K of 2012).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents (in C.R.Ps.43-K to 45-K of 2012).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 2-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 2-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Respondent No.2 (in C.R.P. 2-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 2-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court along with Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.R.P. 3-K of 2013).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court (FBR) for Respondent No.1 (in C.R.P. 3-K of 2013).

Nemo for Respondents Nos.2-3 (in C.R.P. 3-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P.4-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 4-K of 2013).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Respondent No.2 (in C.R.P. 4-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 4-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 5-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 5-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court along with M.A. Sheikh, Advocate-on-Record for Respondent No.2 (in C.R.P. 5-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 5-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 6-K of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.R.P. 6-K of 2014).

Nemo for Respondents Nos.2 and 3 (in C.R.P. 6-K of 2014).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 7-K of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.R.P. 7-K of 2014).

Nemo for Respondents Nos. 2 and 3 (in C.R.P. 7-K of 2014).

Tariq Mehmood, Senior Advocate Supreme Court for Applicants (in C.M.As. 2238, 2242 and 2246 of 2014 in C.R.Ps. Nil of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.M.As. 2238, 2242 and 2246 of 2014 in C.R.Ps. Nil of 2014).

Date of hearing: 11th November, 2015.

2016 S C M R 787

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mushir Alam and Umar Ata Bandial, JJ

JAVED IQBAL and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.24 and 25 of 2010, decided on 22nd February, 2016.

(On appeal from judgment of Lahore High Court, Lahore dated 26-5-2009, passed in Crl. A. No.123-J of 2006 and M.R. No. 4-T of 2006)

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

----S. 196---Anti-Terrorism Act (XXVII of 1997), Ss. 12, 19, 30 & 32---Penal Code (XLV of 1860), S. 295-A---Proceedings before the Anti-Terrorism Courts---Scope---Bar of taking cognizance provided under S.196, Cr.P.C. did not apply to proceedings before the Anti-Terrorism Court---Principles.

Section 196 of Cr.P.C barred the Court from taking cognizance of an offence under section 295-A of P.P.C., without requisite sanction/approval/permission (of the Government) and failure to obtain such mandatory permission rendered the proceedings to that extent a nullity in law. However, bar of taking cognizance provided under section 196, Cr.P.C would not apply to the proceedings before the Anti-Terrorism Courts in view of the combined effect of sections 12, 19, 30 and 32 and the overriding effect of section 32 of the Anti-Terrorism Act, 1997, being proceedings under a special statute, which provided exclusion of those provisions of Cr.P.C. and other laws which were inconsistent with the provisions of the said Act.

Nawaz Sharif v. The State 2000 MLD 946 ref.

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

----Ss. 295-A, 295-B, 302(b), 324, 337-L(2), 148, 149, 186 & 353---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 9---Cross-firing between police and participants of a procession---Reappraisal of evidence---Accused persons were part of a procession led by the co-accused who claimed to be the "Imam Mehdi"---Cross-firing between the procession and police resulted in death of one person and caused injuries to several others---Record showed that police party also fired upon the procession---No police official received any bullet injury, whereas three accused persons suffered bullet injuries---All crime empties were attributed to accused persons and no crime empty from bullets fired by police was shown during investigation---Parcels of crime empties and weapons were sent to the Forensic Science Laboratory after an unexplained delay of 11 days---Eye-witnesses did not attribute direct role of firing at deceased to any particular accused---Prosecution evidence lacked examination of any independent witness from the locality and many other material witnesses; contained vague/general allegations with material contradictions about the whole incident, and was not sufficient either to fix the responsibility of murder of deceased or injuries to some persons or to show any of the ingredients to justify their conviction under Ss. 7(a) & 9 of the Anti-Terrorism Act, 1997---Possibility that death of deceased and injuries to some persons might have been the result of police firing could not be ruled out---Accused persons had served their substantive sentences for over 9-years and 9-months---Conviction of accused persons under Ss.302(b), 324, 337L(2), P.P.C. and Ss. 7(a) & 9 of the Anti-Terrorism Act, 1997 were set aside, while their conviction and sentences awarded by Trial Court under Ss. 295-A, 295-B, 148, 149, 186 & 353, P.P.C. were maintained.

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

----Ss. 295-A, 295-B, 295-C, 302(b), 324, 337-L(2), 148, 149, 186 & 353---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 9---Cross-firing between police and participants of a procession---Reappraisal of evidence---Accused who claimed to be the "Imam Mehdi", led a procession of co-accused persons, who exchanged fire with the police resulting in death of one person and injuries to several others---Accused was convicted and sentenced to death under Ss. 295-A, 295-B, 295-C, 302(b), 324, 337-L(2), 148, 149, 186 & 353 & Ss. 7(a) & 9 of the Anti-Terrorism Act, 1997---High Court set-aside conviction of accused to the extent of S. 295-C, P.P.C and did not confirm death sentence awarded by Trial Court---Validity---Police had also fired upon the procession---Possibility that death of deceased and injuries to some persons might have been the result of police firing could not be ruled out---Conviction of accused under Ss. 302(b) & 324, P.P.C. was set aside, while sentences under other provisions of law awarded to him by the Trial Court, as modified by the High Court, were upheld in circumstances.

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Appellants (in Crl. A. 24 of 2010).

Mir Muhammad Ghurran Khurshid Imtiazi, Advocate Supreme Court for Appellants (in Crl. A. 25 of 2010).

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

Date of hearing: 2nd October, 2015.

2016 S C M R 800

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

Messrs WORLD TRANS LOGISTICS and others---Petitioners

Versus

SILK BANK LIMITED and others---Respondents

Civil Petition No. 3729 of 2015, decided on 29th January, 2016.

(On appeal against the judgment dated 27-10-2015 passed by the High Court of Sindh, Karachi in Ist Appeal No.79 of 2015)

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

----Ss. 172, 151 & 152---"Pledge of goods" in mercantile practice for obtaining finance facility---Pledge of raw materials or stock-in-trade by industrial or commercial enterprise---Pledge of goods created by giving pledgee-bank only constructive possession of goods and not actual possession---Pledgor retaining possession of pledged goods with the freedom to deal with them in the ordinary course of business---Pledgor holding the pledged goods on trust for the pledgee-bank---Principles.

Under the Contract Act, 1872 a pledge was ordinarily construed to mean delivery of an article to the pledgee by the pledgor as security for a debt or for carrying out some engagement that had been committed by the pledgor with the pledgee. An article owned by the pledgor was physically delivered to be kept by the pledgee as security until the commitment of the pledgor with the pledgee was honoured. However, in mercantile practice another form of pledge had also developed. Under this form, the actual delivery of goods was not entrusted to the pledgee as only constructive possession of the pledged goods was handed over. In this manner, the pledgor was allowed to utilize the pledged goods in his ordinary course of business. Examples of such form of pledge were pledge of raw materials and stocks-in-trade of an industrial or commercial enterprise which needed to be consumed on regular basis in the ordinary course of business. On account of such use continuous change took place in the inventory. The inventory was to be replenished by the pledgor. Hence entire current inventory stood covered under the contract of pledge on which the pledgee could exercise his right to take over in the event of breach of the contract by the pledgee. Such form of pledge attached certain conditions on the pledgor, for instance maintaining a register to record the particulars of the pledged goods and their time to time utilization and communicate to the pledgee changes in the level of inventory on weekly or fortnightly or monthly basis; or the value of the inventory of the pledged goods was to be maintained to a level which met the value of the security provided under the contract of pledge; or to hold the pledgee harmless against any loss, damage or deterioration caused to the pledged goods for any conceivable reason; or obtain insurance cover against any loss, damage or deterioration that may be caused to the pledged goods.

In the said form of pledge, the pledgor wore two hats, one that of a pledgor and the other that of a person authorized by the pledgee to hold the pledged goods on trust for the pledgee with the freedom to deal with them in the ordinary course of business. On account of enjoying such freedom, the pledgor was obligated to ensure that while dealing with the pledged goods, the security provided for the debt was not diluted or destroyed to the disadvantage of the pledgee. Furthermore, as the actual possession of the goods under pledge was entrusted to the pledgor, the standard of care in relation to pledged goods, as envisaged under sections 151 and 152 of the Contract Act, 1972 purely fell on the pledgor. If freedom to utilize the pledged goods was not made available to the pledgor engaged in some industrial or commercial enterprise and physical possession was retained by the pledgee then this would immobilize the pledgor from utilizing such goods in ordinary course of his business. The whole purpose of obtaining the finance under such type of pledge against raw materials or stocks-in-trade would thus stand frustrated.

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

----S. 172--- "Pledge of goods" for obtaining finance facility from bank---Pledgee-bank only having constructive possession of goods---Actual possession of goods with pledgor (loan defaulter) with permission to deal with them in ordinary course of business---Misappropriation of the pledged goods---Pledgee-bank not liable for such misappropriation as it only had constructive possession of goods---Pledgor (loan defaulter) was responsible for taking care of the pledged goods in such circumstances.

Valid pledge could be created not only by actual delivery of articles but also by handing over constructive possession only. Pledgee retained a mere right to take possession of the pledged goods in case the pledgor committed default in discharge of his obligation. The character of pledge was not lost merely because actual physical possession of the pledged goods was not delivered to the pledgee.

Pledgee-bank, in the present case, only had constructive possession over the pledged goods. Letter of pledge showed that pledgor (loan defaulter) was permitted by pledgee-bank to deal with the pledged goods. As pledgor (loan defaulter) was at liberty to deal with the pledged goods in his ordinary course of business, it was required under the letter of pledge that pledgor shall maintain a register for recording changes in the inventory of pledged goods that occurred on account of its consumption of the goods from time to time. Furthermore, the letter of pledge also provided that in case any loss or damage or deterioration in the value of goods was caused that shall be borne by the pledgor (loan defaulter) without any responsibility whatsoever on the pledgee-bank. So it was apparent that only constructive possession was delivered to the pledgee-bank and actual possession of the pledged goods was with pledgor (loan defaulter). Hence it was for the pledgor (loan defaulter) to take care of the goods as a man of ordinary prudence would take of his own goods and in case any loss, damage or deterioration was caused to the pledged goods, the pledgee-bank could not be held accountable. In the present case, as the pledgee-bank was only having constructive possession of the pledged goods, therefore, it was not liable to account for the alleged theft or misappropriation of the pledged goods.

Lallan Prasad v. Rahmat Ali and another AIR 1967 SC 1322; Messrs Ali Traders Rice Dealer Gujranwala through Sole Proprietor and another v. National Bank of Pakistan 2015 CLD 1; Askari Bank Limited v. Waleed Junaid Industries and others 2012 CLD 1681; Sardar Muhammad v. Muhammad Israr and others 1995 SCMR 1356; A. M. Burq and another v. Central Exchange Bank Ltd. and others PLD 1966 (W.P) Lah. 1 and Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. 2012 CLD 337 distinguished.

Syed Waqar Hussain Naqvi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 29th January, 2016.

2016 S C M R 806

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Manzoor Ahmad Malik, JJ

PARA DIN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.110 of 2010, decided on 19th January, 2016.

(Against the judgment dated 11-5-2009 passed by the High Court of Balochistan, Quetta in Criminal Appeal No.271 of 2005)

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

----S. 9(c)---Possession of narcotic---Re-appraisal of evidence---Sentence, reduction in---Consolidated sample---Accused was found in possession of 162 kilograms of charas pukhta contained in 162 packets weighing one kilogram each and charas kham weighing 34 kilograms contained in 34 packets weighing one kilogram each---One consolidated sample of 100 grams was separated from all packets containing charas pukhta and one consolidated sample weighing 50 grams had been separated from all the packets containing charas kham---Only the weight of two packets i.e. two kilograms of charas could be considered against the accused in such circumstances for the purpose of his conviction and sentence---Conviction of accused for an offence under S. 9(c), Control of Narcotic Substances Act, 1997, was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of Rs. 20,000.

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

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Noman Shafique, Special Prosecutor, Balochistan for the State.

Date of hearing: 19th January, 2016.

2016 S C M R 808

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Tariq Parvez, JJ

Messrs PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

Versus

The BOARD OF TRUSTEES, EOBI and others---Respondents

Civil Appeal No. 95 of 2005, decided on 9th February, 2016.

(Against the judgment dated 5-12-2003 passed by High Court of Sindh, Karachi passed in Cons. P. No. 1443 of 1996)

(a) Employees' Old-Age Benefits Act (XIV of 1976)---

----Ss. 1(4), 3 & 11---"Establishment"---Scope---Organization comprising of different sub-organisations/departments---Various departments of an organisation could be termed as "establishments" for the purposes of Employees' Old-Age Benefits Act, 1976---Certain organisations comprised of a vast array of sub-organisations wherein each sub-organisation carried out an activity that may be wholly or substantially different from that of another sub-organisation, rendering only one or some of the sub-organisations as "establishment(s)" under the Employees' Old-Age Benefits Act, 1976 and not the others---To hold that an "establishment" as provided for under the said Act only contemplated organisations as a whole/composite and not its individual departments/sub-organisations would mean to deprive the employees of insurance benefits who would otherwise be entitled as the sub-organisation they worked for may fall within the definition of "establishment" under the said Act.

(b) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 2(e)(iii)---Factories Act (XXV of 1934), Ss. 2(g)(i) & (j)---"Establishment"---Scope---Kitchen department of National Airlines---Said department was more akin to a food manufacturing plant where a "manufacturing process" was carried in terms of S. 2(g)(i) of Factories Act, 1934---Kitchen department of National Airlines was a "factory" in terms of the Factories Act, 1934, thus it would necessarily constitute an "establishment"---Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its kitchen department.

Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airline working in its kitchen department. Kitchen department of national Airline carried out a "manufacturing process" as defined under S. 2(g)(i) of the Factories Act, 1934. Flight kitchen production or flight catering consisted of mass scale food production, where food was prepared, cooked and arranged for final service for countless number of passengers and flight crew on numerous local and international fights round the clock every day. Kitchen department of National Airline was not a regular kitchen, but it was more akin to a food manufacturing plant, where finished dishes were made from the raw material (fresh food items, etc.) and finally packed and loaded onto flight catering carts for use on-board National Airlines' air carriers, thereby bringing such process within the "process for making…packing…any article or substance with a view to its use…" making it a "manufacturing process". Consequently the kitchen department of National Airline was a "factory" in terms of the Factories Act, 1934. Accordingly, kitchen department of National Airline would necessarily constitute an "establishment" for the purposes of the Employees' Old-Age Benefits Act, 1976.

(c) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 2(e)(iii)---Factories Act (XXV of 1934), Ss. 2(g)(i) & (j)---"Establishment"--- Scope--- Engineering department of National Airlines---Said department was an "establishment" falling within the definition of a factory as defined under the Factories Act, 1934---Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its engineering department.

Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its engineering department. Repairing and servicing of airplanes, carried out at the engineering department of National Airlines, would bring said department within the definition of "factory" since a "manufacturing process" was taking place, which encompassed "repairing" of the airplanes "with a view to its use" as per sections 2(g)(i) and 2(j) of the Factories Act, 1934. Consequently, the engineering department of National Airlines was an "establishment" under the Employees' Old-Age Benefits Act, 1976.

(d) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 47(f)---Factories Act (XXV of 1934), S. 2 (j)---Engineering department of National Airlines---Employees' Old-Age Benefits Act, 1976 applicability of---Exceptions---Proviso to S.47(f) of Employees' Old-Age Benefits Act, 1976 provided that said Act was not applicable to workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies---Engineering department of National Airlines (a statutory body) did not fall within the ambit of proviso to S. 47(f) of said Act as it also provided repair and maintenance services to airplanes of airlines other than that of the National Airlines, and also to Pakistan Navy and Air Force---Engineering department of National Airlines, therefore, did not come within the ambit of the proviso to S. 47(f) of the Employees' Old-Age Benefits Act, 1976, meaning that the Act was applicable to said department.

Anwar Mansoor Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Tariq Bilal, Advocate Supreme Court, Babar Bilal, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Noor Ahmed, Dy. Director, Law, EOBI for Respondents.

Abdul Rasheed Awan, D.A.-G. on Court's Notice.

Date of hearing: 20th January, 2016.

2016 S C M R 816

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX, PESHAWAR---Appellant

Versus

Messrs ISLAMIC INVESTMENT BANK LTD.---Respondent

Civil Appeal No. 1086 of 2009, decided on 16th December, 2015.

(On appeal against the order dated 29-1-2009 passed by the Peshawar High Court, Peshawar in T.R. No. 48 of 2007)

(a) Interpretation of statutes---

----Repealed statute---Provisions of a repealed statute preserved by a saving clause in the repealing statute---When a statute repeals an earlier statute and it was an unqualified repeal, then the effect of such repeal was that the earlier statute got repealed in its entirety---However, where the Legislature intended to preserve any power or inchoate right in relation to the repealed statute, then a saving clause was incorporated in the repealing statute whereby certain provisions were preserved from getting repealed to the extent and with regard to the subject mentioned in the saving clause---Provisions of the repealed law that were so preserved were to be regarded as if the repealed statute was still in operation.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 239(1)---Income Tax Ordinance (XXXI of 1979) [since repealed], Preamble---Section 239(1) of the Income Tax Ordinance, 2001 as a saving clause---Scope---Section 239 of the Income Tax Ordinance, 2001, by its very nature, being a saving clause, was intended to preserve certain powers and procedures contained in the repealed Income Tax Ordinance, 1979---Several procedures for the correct assessment of income and determination of tax liability were devised in the repealed Income Tax Ordinance, 1979---Section 239(1) of the Income Tax Ordinance, 2001, in fact saves the entire set of procedures prescribed under the repealed law [Income Tax Ordinance, 1979] through which the exercise of reaching at the correct calculation of total income and the tax payable thereon could be undertaken with regard to the periods covered under the repealed Income Tax Ordinance, 1979---Section 239(1) of the Income Tax Ordinance, 2001 encompassed within its ambit all types of assessments that could be made to a tax return---In simple terms, assessment was relatable to all stages of assessments that could be made to a tax return under the provisions of the repealed Income Tax Ordinance, 1979---Replacement of old law with a new one was never intended to affect the right of the department to revise an assessment order that had been made under the provisions of the repealed Income Tax Ordinance, 1979, but was intended only to devise a new method and mechanism to determine income and the tax payable for the post repeal era---Hence, the whole purpose of incorporating S. 239 of Income Tax Ordinance, 2001 was to preserve certain powers and procedures laid down in the repealed Income Tax Ordinance, 1979, so that it could be subsequently enforced in the post repeal era only in matters that related to the period covered under the repealed Income Tax Ordinance, 1979.

(c) Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(5A) & 239(1)---Income Tax Ordinance (XXXI of 1979), S.66A [since repealed]---General Clauses Act (X of 1897), S. 6---Original assessment order relating to period of repealed Income Tax Ordinance, 1979 i.e. on or before 30-06-2002---Commissioner serving notice to tax-payer under S. 122(5A) of Income Tax Ordinance 2001, to amend such original assessment order---Legality---Sending of such notice under the Income Tax Ordinance, 2001 was technical mistake as the repealed Income Tax Ordinance, 1979 was the applicable law for revising/amending such assessment---Section 239 of Income Tax Ordinance, 2001, had preserved the powers of the tax authorities to amend assessments orders pertaining to the period falling under the repealed Income Tax Ordinance, 1979---Notice for reopening/amending the assessment in the present case, thus, should have been issued under S. 66A of the repealed Income Tax Ordinance, 1979---Supreme Court treated notice under S. 122(5A) of Income Tax Ordinance, 2001 to be notice issued under S. 66A of the Income Tax Ordinance, 1979 and directed Commissioner, Income Tax (Appeals) to decide the appeal afresh.

Honda Shahrah-e-Faisal Association of Persons, Karachi v. Regional Commissioner of Income Tax, Karachi 2005 PTD 1316 not approved.

Income Tax Ordinance, 1979, stood repealed with effect from 30-06-2002 and was replaced by the Income Tax Ordinance, 2001, which came into operation immediately thereafter i.e. with effect from 01-07-2002. Section 239(1) of the Income Tax Ordinance, 2001, provided that any assessment that was to be made for the income years ending on or before 30-06-2002, the same had to be made under the provisions of the repealed Income Tax Ordinance, 1979, as if Income Tax Ordinance, 2001, had not come into force. The question that arose in the present case was whether the Commission Income Tax was justified in revising an assessment order relating to the period covered under the repealed Income Tax Ordinance, 1979, by invoking the provisions of section 122(5A) of the Income Tax Ordinance, 2001, that was inserted on 01.07.2003 i.e. one year after the Income Tax Ordinance, 2001, came into operation.

Provisions of Income Tax Ordinance, 2001, could not be interpreted in a manner so as to take away the powers of the Taxing Authority to revise, within the prescribed period of time, any assessment order that was passed under the provisions of the repealed Income Tax Ordinance, 1979.

Honda Shahrah-e-Faisal Association of Persons, Karachi v. Regional Commissioner of Income Tax, Karachi 2005 PTD 1316 not approved.

Income Tax Ordinance, 2001, had preserved the powers of the tax authorities to revise assessments orders pertaining to the period falling under the repealed Income Tax Ordinance, 1979, i.e. on or before 30-06-2002, and for such purpose Section 239(1) was incorporated in the Income Tax Ordinance, 2001 as a saving clause. Additionally, assessments from period of repealed Income Tax Ordinance, 1979 could also be revised/amended on the strength of the provisions of section 6 of the General Clauses Act, 1897 as the charge of tax stood created, in the present case on or before 30.06.2002 thus transforming the State's right to claim tax into a vested right. Had the Income Tax Ordinance, 2001, not come into existence, the assessment in the present case could have been amended under the repealed Income Tax Ordinance, 1979, within five years of its finalisation i.e. within five years from 14-5-2003, when the initial assessment order in the present case was passed. This right to revise the assessment in question could be exercised under the provisions of the repealed Income Tax Ordinance, 1979, uptill 13-05-2008 which right was never given up under any provision of the Income Tax Ordinance, 2001. In the present case, on the strength of section 239(1) of the Income Tax Ordinance, 2001 the machinery provided under section 122(5A) of the same Ordinance, was brought into play to send a notice for the assessment year in question. This was only a technical mistake because in terms of section 239 (1) of the Income Tax Ordinance, 2001, notice for reopening the assessment in question should have been issued under section 66A of the repealed Income Tax Ordinance, 1979. It thus did not follow that the notice was invalid under the law.

Supreme Court treated notice under section 122(5A) of Income Tax Ordinance, 2001 to be notice issued under section 66A of the Income Tax Ordinance, 1979 and directed Commissioner, Income Tax (Appeals) to decide the appeal afresh.

(d) Interpretation of statutes---

----Amendment---Provision incorporated in a statute through an amendment that was procedural in nature---Retrospective rule of construction was to be applied to such provision---Such a provision had to be construed as if it was incorporated on the date when the main enactment reached the statute book.

(e) Income Tax Ordinance (XLIX of 2001)---

----S. 239(1) [as amended by the Finance Act, 2002]---Income Tax Ordinance (XXXI of 1979), Preamble [since repealed]---Retrospective effect of amended S. 239(1) of Income Tax Ordinance, 2001---Merely because the amended S. 239(1) was inserted in the Income Tax Ordinance, 2001, on 01-07-2003 instead of 1-7-2002 when the parent statute i.e. Income Tax Ordinance, 2001 came into operation, it could not be said that a vacuum was created in giving effect to it from the date when the main enactment came into operation---By virtue of the amended S. 239(1), the powers or inchoate rights relating to income years covered under repealed Income Tax Ordinance, 1979, to the extent mentioned in S. 239 of the Income Tax Ordinance, 2001, were to continue to be exercised/enforced on the basis of the procedures prescribed in the repealed law as if the repealed Income Tax Ordinance, 1979 was still in operation---Provisions of S. 239(1) of Income Tax Ordinance, 2001 applied retrospectively.

Honda Shahrah-e-Faisal Association of Persons, Karachi v. Regional Commissioner of Income Tax, Karachi 2005 PTD 1316 not approved.

Commissioner of Income Tax v. Asbestos Cement Industries Ltd. 1993 SCMR 1276 and Fazal Dad v. Mst. Sakina Bibi and another 1997 MLD 2861 ref.

(f) Income Tax Ordinance (XLIX of 2001)---

----Preamble---General Clauses Act (X of 1897), S. 6---Liability to pay income tax---Accrued on the tax payer on the last day of the income year/accounting year creating a vested right in favour of the State---Provisions in income tax law relating to its assessment were thus machinery provisions only for the purpose of quantifying the liability to pay income tax, which liability had become absolute on completion of the income year/accounting year.

Liability to pay income tax accrues on the taxpayer on the last day of the income year/accounting year, though the tax became payable after it was quantified in accordance with the procedures laid down in the Income Tax law. Thus a vested right in favour of the State was created at the end of each accounting year, though the exercise of (i) making an assessment on the basis of ascertainable data of income and expenditure, or (ii) revising an assessment order where it was found that there was sufficient material to hold that the original assessment was prejudicial to the interest of the revenue, took place at some later stage. These procedural exercises were undertaken only with the object of reaching at the correct calculation of yearly income but the real liability to pay tax had already accrued on the last day of the income year i.e. on the last day of the accounting year thereby creating a vested right in favour of the State. It may be understood as an expense that has already accrued but was payable later. Thus provisions in income tax law relating to its assessment were machinery provisions only for the purpose of quantifying the liability. Seeking revision of a tax return at any subsequent stage had nothing to do with the creation of charge on the tax-payer that had become absolute on completion of the income year/accounting year.

Chatturam v. Commissioner of Income Tax AIR 1947 FC 32; Wallace Brothers and Co. Ltd. v. Commissioner of Income Tax AIR 1948 PC 118 = PLD 1948 PC 67 and Kalwa Devadattam v. Union of India AIR 1964 SC 880 ref.

(g) Companies Ordinance (XLVII of 1984)---

----S. 316---Suits stayed in winding up order---Scope---Section 316 of the Companies Ordinance, 1984, was attracted when winding up order was passed or provisional manager was appointed---Mere filing of winding up proceedings did not attract the provision of S. 316 of the Companies Ordinance, 1984.

Ghulam Shoaib Jalley, Advocate Supreme Court for Appellant.

Syed Mudassar Ameen, Advocate Supreme Court for Respondent.

Date of hearing: 16th December, 2015.

2016 S C M R 834

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Dost Muhammad Khan, JJ

MUHAMMAD IJAZ and another---Appellants

Versus

MUHAMMAD SHAFI through L.Rs.---Respondent

Civil Appeal No. 1207 of 2004 along with C.A. 1208 of 2004 and C.As. Nos.577-578 of 2006, decided on 6th January, 2016.

(On appeal from the judgment dated 17-4-2001, passed by the Lahore High Court, Lahore in C.Rs. Nos.376-377 of 1998)

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

----Ss. 21 & 30 [since repealed]---High Court (Lahore) Rules and Orders, Vol. 1, Chap. 1, Part B, R. 7(c)---Civil Courts Ordinance (II of 1962), S. 23---Limitation Act (IX of 1908), S. 28---Suit for pre-emption---Presentation of plaint---Limitation---Plaint filed before Tehsildar in absence of Civil Judge---Propriety---High Court (Lahore) had authorized the District and Sessions Judges to confer upon any officer, powers of receiving plaints, to sign and endorse forms for the deposit of rent and other amounts in temporary absence of Civil Judges from the Tehsil Headquarters---Accordingly the District Judge, in the present case, had issued a notification [notification No. 157/C-II-26 dates 10-02-1969] authorizing Tehsildars to receive plaints in absence of Civil Judges in the area---In the present case, pre-emptors filed their plaints before the Tehsildar as admittedly Civil Judge was absent---Even if it was assumed, albeit not correct, that filing of plaint before the Tehsildar was not valid, then S. 4 of Limitation Act, 1908 and rules of propriety would come into play and no limitation would run against the pre-emptors till the date, the competent court, i.e. the Civil Judge reopened for judicial work---Further filing of plaints before the Tehsildar in the absence of Civil Judge in the Tehsil/sub-division was a regular practice at the relevant time, which was evident from the fact that once the Civil Judge returned to his work, he received the plaints from the Tehsildar without any exception or reservation and registered the same in the relevant register---Suits for pre-emption had correctly been decreed in the present case---Appeal was dismissed accordingly.

Rashad Ehsan and others v. Bashir Ahmad PLD 1989 SC 146 and Muhammad Yar v. Muhammad 2003 SCMR 1772 ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 11---Punjab Tenancy Act (XVI of 1887), S. 77---Tehsildar---Two-fold jurisdiction---Under the Punjab Land Revenue Act, 1967, Tehsildar acted as a Revenue Officer which fell within the administrative province of the revenue authorities, however, the same Tehsildar was (also) graded as 1st Class or 2nd Class Magistrate/ Revenue Court under the provisions of Punjab Tenancy Act, 1887.

(c) Administration of justice---

----Maxim 'Actus Curiae Neminem Gravabit' (an act of court shall prejudice no man)---Scope---Where any court did not comply with a mandatory provision of law or omitted to pass an order required by law in the prescribed manner, then the litigant/parties could not be taxed, much less penalized for the act or commission of the court---Fault in such cases did lie with the court and not with the litigants and no litigant should suffer on such account unless he/they were contumaciously negligent and had deliberately not complied with a mandatory provision of law.

PLD 1972 SC 69 ref.

(d) Administration of justice---

----Technicalities of law---Depriving a party of substantive rights---Certain technicalities of law, where a right was vested in the opposite party by efflux of time or where public policy demanded so, may become relevant, however the same could not be given any preference by defeating the ends of justice, depriving a party of substantive rights, which accrued to it under the law and principles of justice.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ishfaq Qayyum Cheema, Advocate Supreme Court for Appellants (in C.As. 1207-1208 of 2004).

Muhammad Siddique Khan Baloch, Advocate Supreme Court for Appellants (in C.As. 577-578 of 2006).

Taki Ahmed Khan, Advocate Supreme Court for Respondents Nos.1 - 2 (C.As. Nos. 1207-1208 of 2004).

Ex parte for Respondent No.3 (in all cases).

Date of hearing: 6th January, 2016.

2016 S C M R 842

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Tariq Pervez, JJ

INDUS TRADING AND CONTRACTING COMPANY---Appellant

Versus

COLLECTOR OF CUSTOMS (PREVENTIVE) KARACHI and others---Respondents

Civil Appeal No. 1600 of 2006, decided on 4th January, 2016.

(On appeal against the judgment dated 8-3-2006 passed by the High Court of Sindh, Karachi in C.Ps. Nos. 223, 224, 225 and 226 of 2003)

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

----S. 18(3)--- Constitution of Pakistan, Art, 199--- Constitutional petition before High Court---Maintainability---Regulatory duty, levy of---Importer challenging levy of regulatory duty on an imported item---Forum---When a regulatory duty was charged, the importer ought to challenge the same before the forum provided under the Customs Act, 1969 instead of invoking the jurisdiction of the High Court under Art.199(1) of the Constitution.

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

----S. 18(3)---S.R.O. No.1050(I)/95, dated 29-10-1995---Regulatory duty, levy of---Import of items free from customs duty---Federal Government could impose regulatory duty on items which were free from customs duty by way of subordinate legislation [Statutory Regulatory Order (SRO)]---Statutory customs duty under S. 18(1) of Customs Act, 1969 were distinct from regulatory duty under S. 18(3) [previously S. 18(2)] of the same Act---Chargeability of regulatory duty had no nexus with the chargeability or grant of exemption with regard to the statutory customs duty falling under S. 18(1) of the Customs Act, 1969.

Appellant-company imported certain life saving drugs which were free from customs duty on the basis of concession granted under the Finance Act, 1995. However vide S.R.O. No. 1050(I)/95 dated 29th October, 1995, Federal Government imposed 5% ad valorem regulatory duty on such drugs. Appellant-company challenged levy of such regulatory duty on the basis that as long as import of life saving drugs was free from customs duty on the basis of the concession granted under the Finance Act, 1995, no duty, much less regulatory duty, could have been lawfully charged, and that the imposition of regulatory duty under the impugned S.R.O. No. 1050(1)/95 being based on subordinate legislation was therefore illegal.

Statutory customs duty under section 18(1) and regulatory duty under section 18(3) [previously section 18(2)] of the Customs Act, 1969 were two distinct categories of duties. One should not be taken to be the same as the other. Where import or export of any commodity enjoyed exemption from statutory customs duty, even then the Federal Government could impose regulatory duty, within the confines described in section 18(3) of Customs Act, 1969 through subordinate legislation. Where the legislature granted exemption from the payment of customs duty that fell under section 18(1) of the Customs Act, 1969 the same could not be made basis to avoid payment of regulatory duty imposed subsequently unless there was also a promise that such concession would also be applied to regulatory duty, in case it was levied in future. As the exemption from customs duty in the present case, did not contain such a promise it could not be applied to a regulatory duty, which was competently levied under a different nomenclature. Regulatory duty, in the present case, was, therefore, levied competently.

Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 ref.

(c) Constitution of Pakistan---

----Art. 199(1)---Constitutional jurisdiction of the High Court---Not to be invoked where alternative forum under a special law, duly empowered to decide the controversy was available and functioning---Invoking Constitutional jurisdiction of the High Court and by-passing the proper forum was contrary to the intention of the provisions of Art.199(1) of the Constitution and it also over-burdened the High Courts---High Courts must deprecate such tendency.

Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy was available and functioning. Where a special law provided legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy was that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum was that disputes should reach expeditious resolution headed by quasi-judicial or judicial officers who with their specific knowledge, expertise and experience were well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it also over-burdened the High Courts with a very large number of such cases. This in turn resulted in delay in the resolution of the dispute as a large number of cases got decided after several years. These cases ought to be been taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum was contrary to the intention of the provisions of Article 199(1) of the Constitution which conferred jurisdiction on the High Court only and only when there was no adequate remedy available under any law. Where adequate forum was fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy related.

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

----Ss. 18(3) & 25---Regulatory duty, calculation of---Regulatory duty on import of an item which is free from customs duty---Where import of an item was totally exempted from customs duty, the regulatory duty on such item, which was to be charged ad valorem, was computed on the basis of the value of the goods to be determined under the provisions of S. 25 of the Customs Act, 1969.

Yousuf Re-Rolling Mills v. Collector of Customs PLD 1989 SC 232 ref.

Issaq Ali Qazi, Advocate Supreme Court for Appellant.

Raja Muhammad Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No1.

Ex parte for Respondents Nos.2 - 3.

Date of hearing: 4th January, 2016.

2016 S C M R 849

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

Ch. MUHAMMAD AYAZ---Appellant

Versus

ASIF MEHMOOD and others---Respondents

Civil Appeal No.946 of 2014, decided on 7th December, 2015.

(On appeal against the judgment dated 3-6-2014 passed by the Election Tribunal, Rawalpindi, in E.P. No.188 of 2013/RWP/05/2013)

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---Election petition not verified in accordance with S. 55(3) of the Representation of the People Act, 1976---Application to rectify/amend election petition also filed with considerable delay after period of limitation to file such application had passed---Election petition being not maintainable merited dismissal in such circumstances.

Verification of the election petition was a mandatory requirement. Verification of election petition in accordance with section 55(3) of the Representation of the People Act, 1976 was to be made at the time of filing of the election petition and any default in such regard would be considered to be a significant omission and thereby fatal. Perusal of the election petition, in the present case, showed that the same had not been verified in accordance with section 55(3) of the Representation of the People Act, 1976 at the time of its filing. Neither the annexures along with schedule had been signed. Election-petitioner sought to rectify/amend the petition through an application, however said application was filed after a considerable delay when the period of limitation for filing such application had passed. In such circumstances the election petition could not have been considered and allowed and warranted dismissal being not maintainable.

Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362; Iqbal Zafar Jhagra v. Khalil-ur-Rehman 2000 SCMR 250; Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396 and Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 ref.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellant.

Dr. Babar Awan, Advocate Supreme Court and Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Date of hearing: 7th December, 2015.

2016 S C M R 859

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam JJ

REGIONAL COMMISSIONER INCOME TAX, NORTHERN REGION, ISLAMABAD and another---Appellants

Versus

Syed MUNAWAR ALI and others---Respondents

Civil Appeals Nos.101 and 102-P of 2011, decided on 17th February, 2016.

(On appeal from judgment dated 27-4-2010, of the Peshawar High Court, Peshawar, passed in Writ Petitions Nos.205 of 2010 and 33 of 2009)

(a) Civil service---

----"Upgradation" of post---"Promotion"---Issue of upgradation did not form part of terms and conditions of service of civil servants---"Upgradation" of a post was distinct, from "promotion".

(b) Civil service---

----"Upgradation" of post---Pre-conditions---Upgradation of post could not be made to benefit a particular individual in terms of promoting him to a higher post and further providing him with the avenues of lateral appointment or transfer or posting---In order to justify upgradation, the Government was required to establish that the department needed re-structuring, reform or to meet the exigency of service in the public interest---In the absence of such pre-conditions, upgradation was not permissible.

(c) Constitution of Pakistan---

----Arts. 199 & 212(3)---Civil Servants Act (LXXI of 1973), Preamble---'Upgradation' of post, issue of---Could be decided by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution.

Issue relating to upgradation of civil servants could be decided by High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. Policy of upgradation, notified by the Government, in no way, amended the terms and conditions of service of the civil servant or the Civil Servants Act, 1973 and or the Rules framed thereunder. Service Tribunal had no jurisdiction to entertain any appeal involving the issue of upgradation, as it did not form part of the terms and conditions of service of the civil servants.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Chief Commissioner Inland Revenue and another v. Muhammad Afzal Khan (Civil Appeal No.992 of 2014) ref.

Shahid Raza, Advocate Supreme Court for Appellants (in both appeals).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 8 (in C.A. No. 101-P of 2011).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 39 (in C.A. No. 102-P of 2011).

Date of hearing: 17th February, 2016.

2016 S C M R 862

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan and Manzoor Ahmad Malik, JJ

GHULAM FARID and another---Appellants

Versus

SHER REHMAN through LRs.---Respondent

Civil Appeal No. 525 of 2013, decided on 27th January, 2016.

(On appeal from the judgment dated 15-4-2013 passed by the Peshawar High Court, Abbottabad Bench in C.R. No. 315 of 2005)

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 39 & 42---Illiterate village lady---Sale of land---Proof---

Incorporation of mutation into the "Jamabandi" and its repetition periodically, relevance of --- Mere incorporation of mutation into the "Jamabandi" and its repetition periodically, would not confer title on the purchaser unless the transaction of sale was independently established, through cogent and convincing evidence---In the case of transaction with illiterate village lady such principle assumed the status of rule of law as in such a case the onus of the beneficiary became manifold---To discharge the burden of proof, beneficiary had to satisfy the court that the entire transaction was completed in a transparent manner and all the required precautions were faithfully and honestly observed before the attestation of mutation, dispelling every suspicion that it was tainted with fraud and misrepresentation.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Illiterate village lady---Sale of land---Proof---Mutation, attestation of---Fraud, misrepresentation and mala fides---None of the purported sellers including Illiterate village ladies had thumb impressed the disputed mutation---Daily diary maintained by the 'Patwari' was not produced as it was destroyed after 12 years, however, the purported purchaser did not obtain a certified copy of the same---Neither the two attesting witnesses to the mutation, nor the Halqa Patwari who made entries in the daily diary, were produced to substantiate the claim of the purported purchaser---Revenue Officer who attested the mutation was also not produced---Impugned mutation was attested in a "Mouza" situated 3/4 miles away from the "Mouza" where the property was actually situated---Evidence did not show that in whose presence, where, on what date and time the transaction of sale took place and how the sale consideration was paid to the vendors including the two illiterate village ladies---Impugned transaction of sale, in the present case, was not independently established through convincing, reliable and cogent evidence---Mala fide, misrepresentation and fraud, had been committed in the course of attestation of impugned mutation---Mere incorporation of such invalid mutation in the periodical record and its subsequent repetition, was of no legal benefit to the purported purchaser because the same was invalid for having no sanction of law--- Appeal was allowed accordingly.

(c) Pardanasheen lady---

----Transaction made by "Pardanasheen" lady---Authenticity---Proof---Conditions to be fulfilled to establish authenticity of a transaction made by/with a Pardanasheen" lady stated.

When any transaction was made by anyone where "Pardanasheen" lady's vital interest was involved then, the following conditions were to be invariably and essentially established through evidence:-

(i) that transaction was free from any influence, misrepresentation or fraud;

(ii) that amount of consideration equal to the value of the property was indeed paid to the ladies;

(iii) that in the case of "Pardanasheen" rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;

(iv) that at the time of transaction, the ladies had access to independent advice of their near and dear ones, who had no hostile interest.

(d) Mutation---

----Transaction of land made by "Pardanasheen" lady---Attestation of mutation---Local Commission and two attesting witnesses---Consistent practice for attestation of mutation involving "Pardanasheen" lady to dispel any apprehension of fraud or misrepresentation stated.

In the case of "Pardanasheen" ladies, under the rules it was a consistent practice that before the attestation of mutation by the Revenue Officer, a Local Commission was invariably appointed, accompanied by two attesting witnesses, preferably the close relatives of the ladies, to identify them before the Local Commission and also to become attesting witnesses to the statements, given to the Commission to dispel any apprehension of fraud or misrepresentation. "Pardanasheen" ladies, keeping in view the traditions and culture of the society, did not appear in the common assembly. Local Commission and the two witnesses must establish that the ladies gave statements with their free will; had full understanding about the nature of the transaction; admitted having received the sale consideration for the land sold and, at the relevant time, they had free and full advice of close relatives.

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

----Arts. 100 & 79---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 42---Mutation more than 30 years old but denied as fraud by the purported executant---Presumption under Art. 100 of Qanun-e-Shahadat, 1984 attached to a document more than 30 years old would not apply in case of such mutation.

When a registered document such as a mutation was subject to proof, and production of two attesting witnesses became essential when its execution was denied by the executants, then, presumption attached to 30 years old document under Article 100 of the Qanun-e-Shahadat, 1984, could not be placed on better pedestal than a registered document, which under the Registration Act, 1908 was considered to be a notice to the public at large and carried much more sanctity under the law. Where the mutation was not thumb impressed by the executants then, it was not protected under the provision of Article 100 of the Qanun-e-Shahadat, 1984, nor the relevant presumption was attached to it.

(f) Fraud---

----Fraud vitiated every solemn transaction---Court of law shall, in no eventuality, endorse and perpetuate a fraud once it was proved to have been committed.

(g) Limitation---

----Misrepresentation---Any transaction, which was the result of misrepresentation, was not protected on the ground of period of limitation.

Nazakat Baig, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Muhammad Afzal Janjua, Advocate Supreme Court for Respondent.

Date of hearing: 27th January, 2016.

2016 S C M R 871

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Gulzar Ahmed, JJ

ASKARI HASNAIN---Petitioner

Versus

SECRETARY ESTABLISHMENT and others---Respondents

C.P. No. 306-K of 2015, decided on 23rd September, 2015.

(Against the order dated 22-4-2015 passed by Federal Service Tribunal in Appeal No. 238(K)(CS/2004))

Civil service---

----Pro forma promotion after retirement---Eligibility for promotion---Minimum marks required for promotion to next scale---Rounding up of marks---Selection Board did not recommend petitioner-civil servant for promotion to BS-19 as he only secured 59.60% marks, whereas the threshold for qualifying for promotion was 60% marks---Propriety---Even if the 59.60 % marks obtained by the petitioner, were rounded up (to 60%), he became eligible for promotion on meeting the minimum threshold for promotion to BS-19---Besides proviso to R. 17 of Fundamental Rules, authorized the competent authority to give pro forma promotion to the petitioner after retirement, which order, in no way, would affect the serving officers, as petitioner had already attained the age of superannuation---Supreme Court directed the competent authority to issue the required notification of pro forma promotion of the petitioner.

Sanaullah Noor Ghouri, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Muhammad Aslam Butt, DAG and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 23rd September, 2015.

2016 S C M R 875

[Supreme Court of Pakistan]

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

MUHAMMAD NAWAZ CHANDIO---Appellant

Versus

MUHAMMAD ISMAIL RAHU and others---Respondents

Civil Appeal No. 294 of 2015, decided on 10th December, 2015.

(On appeal from judgment dated 10-4-2015, passed by the Election Tribunal, Hyderabad, in Election petition No. 341 of 2013)

Per Sh. Azmat Saeed, J; Mian Saqib Nisar, J agreeing; Qazi Faez Isa, J partially not concurring.

(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---Proof---Election petition, in the present case, bore verification on solemn affirmation that what had been stated therein was true to the best of knowledge and belief of the election petitioner---Election petition also bore the stamp and signature of the Oath Commissioner---Place where at the contents of the election petition were verified was also stated therein---Date was also mentioned by the Oath Commissioner---Election petitioner entered the witness box and owned the petition by identifying his signatures thereupon---Requirement of verification of election petition in accordance with O.VI, R. 15, C.P.C. had in essence been complied with in circumstances.

Lt. Col. (Retd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 distinguished.

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

----S. 55(3)---Civil Procedure Code (V of 1908), O. XIX, R. 1---Election petition---Pleadings---Not substitute of evidence---Election petitioner, in the present case, did not file a separate affidavit-in-evidence and while entering the witness box as a witness only tendered his election petition in evidence---Election Tribunal permitted election petitioner to produce his election petition as evidence---Legality---Procedure adopted by the Election Tribunal, in the present case, with respect to evidence was not strictly in accordance with law---Judgment of the Election Tribunal was primarily based on the statements of other petitioner's witnesses, more particularly, his election agents and the report of Manager, National Database and Registration Authority (NADRA) who appeared as a witness---Election petition had been rightly adjudicated upon by the Election Tribunal.

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

----S. 55---Election petition---Verification of thumb impressions on the counterfoils of ballot papers---Report prepared by National Database and Registration Authority (NADRA), reliance on---Scope---Cross-examination of Manager, NADRA revealed that the verification process was carried out in accordance with the predetermined Standard Operating Procedure (SOP) of NADRA and such report was in fact generated by the computers---No suggestion was given to Manager, NADRA that the entries in such computers were made incorrectly---Nothing had come on record to denude the NADRA report of its veracity or to persuade the court not to read it in evidence---Report prepared by NADRA was on record and therefore in evidence and could not be ignored by the Court.

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

----S. 70 & 83---Partial re-polling---Illegal practices---Election in some polling stations contaminated by bogus voting, double voting and by issuance and polling of ballot papers by persons not authorized to do so---Number of identified bogus votes more than the lead secured by returned candidate over runner-up candidate---Election Tribunal in such circumstances correctly ordered re-polling only in disputed polling stations rather than declaring election as a whole to be void and ordering re-polling in the entire constituency---No prejudice was caused to the returned candidate by order of partial re-polling.

Constituency in question had a total of 120 polling stations. There was no dispute between returned candidate and runner-up candidate with respect to conduct of elections in 83 polling stations. Runner-up candidate claimed that in the remaining 37 polling stations ("disputed polling stations") illegal practices were committed. Election Tribunal declared the election at 37 polling stations as void due to illegal practices having been committed and it was directed that the returned-candidate be de-notified and re-election be held in the said 37 polling stations.

With regard to the disputed 37 Polling Stations, according to the final tally, the returned candidate had received 16012 votes, while runner-up candidate received 8827 votes. National Database and Registration Authority (NADRA) carried out verification of thumb impressions on the counterfoils of ballot papers from disputed polling stations. Report prepared by NADRA showed that a total number of 26947 votes were polled at the disputed 37 polling stations, out of which 4979 counterfoils of ballot Papers contained thumb impressions which did not correspond to the CNIC numbers scribed thereupon or did not have any CNIC number; 132 counterfoils contained thumb impressions of persons who had voted more than once; 85 counterfoils of ballot papers did not bear any thumb impression of the voters. Thus, a total of 5196 votes, on the face of it, appeared to be bogus having not been polled by genuine voters. The thumb impressions on the remaining counterfoils were either found to be genuine or unverifiable due to defective ink used. It is also a matter of record that out of the said 37 Polling Stations the returned candidate had won in 34 Polling Stations.

Report prepared by NADRA established that in the disputed 37 polling stations illegal practices as defined by section 83 of the Representation of the People Act, 1976 were indulged in inasmuch as ballot papers were issued to and polled by persons not authorized or entitled under the law to do so. Double voting was also prevalent. However, it had not been proved that such illegal practices were conducted by the returned candidate.

In the present case, it was evident that the number of identified bogus votes (5196) was more than the lead (38315 - 36960 = 1355) of the returned candidate as per the disputed election results notified by the Election Commission. If the result of the 37 Polling Stations in dispute were to be excluded in their entirety from the final tally, it was the runner-up candidate who would have received more votes and would be entitled to be declared as a returned candidate. However, it was impossible to determine whether such bogus votes were in fact polled in favour of the returned candidate or the runner-up candidate, therefore, re-poll in the 37 disputed polling stations was the only logical way of determining the will of the people of the constituency in question.

Re-election in 37 disputed polling stations would cause no prejudice to the returned candidate. Election Tribunal had correctly ordered re-polling in the disputed polling stations only rather than declaring the election as a whole to be void and ordering a re-poll in the entire constituency.

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

----Preamble---Provisions of the Representation of the People Act, 1976, must be construed through a purposive rather than a literal interpretation.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 ref.

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

----Ss. 67 & 70--- Illegal practices/irregularities in some polling stations--- Election Tribunal, powers of--- Scope--- Principle of severability---Election Tribunal declaring the election at a few polling stations to be void and directing a re-poll only at such polling stations---Such (partial) relief could be granted by Election Tribunal---Election Tribunal could isolate the result in a few polling stations where poll was contaminated and direct a fresh poll thereat rather than declaring the election as a whole to be void.

Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303 dissented from.

In the eventuality of a failure to comply with the mandatory provisions of the Representation of the People Act, 1976 and the Rules or in the presence of illegal practices, an Election Tribunal in exercise of powers under section 70 of the said Act, may declare the election as a whole to be void. However, the Election Tribunal 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 to be followed would depend on the facts and circumstances of each case. The 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 given effect to through a free, fair and impartial election. It should be ensured that no prejudice was caused to any of the candidates.

Possibility of declaring a part of the election i.e. in some of the polling stations to be void appeared to have been catered for and flows from sections 67 and 70 of the Representation of the People Act, 1976 when interpreted in accordance with the settled rules of statutory construction especially as both the said provisions enumerated the reliefs that could possibly be granted by Election Tribunal upon an election petition.

Sindh Employees' Social Security Institution and another v. Admajee Cotton Mills Ltd. PLD 1975 SC 32; Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779; 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.

Holding of a re-poll in a few polling stations was not alien to Pakistan's electoral jurisprudence. To interpret sections 67 and 70 of Representation of the People Act, 1976 so as to limit the jurisdiction of the Election Tribunal in case of presence of illegal practices to declare the election as a whole void, would be too literal, rigid and ritualistic to be accepted in present times and age of purposive, realistic and beneficial interpretation.

Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303 dissented from.

Principle of severability was duly attracted to elections thereby Election Tribunal could isolate the result in a few polling stations where poll was contaminated and direct a fresh poll thereat.

Per Qazi Faez Isa, J [Minority view]

His Lordship observed that "he did not want to express any view on whether partial re-poll was permissible under section 70 of the Representation of the People Act, 1976 since the returned candidate did not raise such point and neither made any submission thereon; that in such circumstances His Lordship did not concur with the discussion and findings in the Majority opinion with respect to jurisdiction of Election Tribunal to order a partial re-poll in a constituency."

Per Sh. Azmat Saeed, J; Mian Saqib Nisar, J agreeing.

(g) Administration of justice---

----Partial relief---Scope---Court or Tribunal endowed with the jurisdiction to grant an entire relief was equally authorized to give partial relief.

Sindh Employees' Social Security Institution and another v. Admajee Cotton Mills Ltd. PLD 1975 SC 32 ref.

Farooq H. Naek, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Date of hearing: 10th December, 2015.

2016 S C M R 893

[Supreme Court of Pakistan]

Present: Mushir Alam and Umar Ata Bandial, JJ

MUHAMMAD MUJTABA ABDULLAH and another---Petitioners

Versus

APPELLATE AUTHORITY/ADDITIONAL SESSIONS JUDGE TEHSIL LIAQUATPUR DISTRICT RAHIM YAR KHAN and others---Respondents

Civil Petition No. 3475 of 2015, decided on 1st December, 2015.

(On appeal from the judgment dated 10-11-2015 of the Lahore High Court, Bahawalpur Bench, passed in W.P. No. 8331 of 2015)

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 27---Disqualifications for candidates and elected members, interpretation of---Election laws more particularly disqualification provisions to disenfranchising a candidate, thus depriving him of a valuable right of franchise guaranteed under the Constitution were to be strictly construed---Any ambiguity was to be resolved in favour of candidate who could be permitted to participate in the electoral process.

(b) Punjab Local Government (Conduct of Election) Rules, 2013---

----R. 14---Punjab Local Government Act (XVIII of 2013), S. 38---Local Government Elections---Eligibility and disqualification of candidate at pre-election and post-election stage---At pre-election stage Returning Officer and the Election Tribunal could summarily enquire into the eligibility and disqualification (of a candidate) without entering into an in-depth analysis---At post elections stage, candidature of person could be challenged by election petition before Election Tribunal, where thorough probe and inquiry could be undertaken.

To challenge the candidature of a person running for elections under the law governing local Government two stage mechanism to test the eligibility and disqualification was provided. First stage was at pre-election, where Returning Officer and Election Tribunal under Rule 14 of the Punjab Local Government (Conduct of Election) Rules, 2013 sifted the candidates through eligibility and disqualification test in a summary manner. Such pre-election challenge conferred summary jurisdiction both on the Returning Officer and the Election Appellate Tribunal to summarily enquire into the eligibility and disqualification (of a candidate) as may be evident from the material available on record without entering into in depth analysis into the allegation of disqualification. Second stage was to challenge the post-election candidature of returned candidate by way of Election petition under section 38 of the Punjab Local Government Act, 2013, before the Election Tribunal. Jurisdiction conferred on Election Tribunal in such regard was akin to the jurisdiction of the Civil Court where thorough probe and inquiry could be undertaken.

(c) Government servant---

---Employee of Government owned Bank---Termination of service---Retrospective effect---Principle that service could not be terminated with retrospective effect, not a principle of universal application---Service could be terminated with retrospective effect if the rules and regulations provided so---Termination notice could be given retrospective effect.

The Province of Punjab v. Khaliq Dad Khan PLD 1953 Lah. 295; Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Sikandar Ali Shah v. Auditor-General of Pakistan 2002 SCMR 1124 and Chief Secretary, Government of Punjab v. Asif Hayat 2011 SCMR 1220 ref.

(d) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(g) & (h)---Local Government Elections---Qualifications and disqualifications for candidates---Nomination papers, acceptance of---Employee of Government Bank---Unauthorized absence from work---Misconduct---Termination from service---Notification whereby services of employee were dispensed with mentioned that he was being terminated from service---Employee therefore was terminated from service (and not dismissed from service) attracting disqualification for a period of three years in terms of S. 27(2)(h) of Punjab Local Government Act, 2013 and not a period of five years in terms of S. 27(2)(g) of the said Act---Period of more than three years had already elapsed since termination of employee, thus objection against his nomination papers was rightly set aside.

(e) Punjab Local Government Act (XVIII of 2013)---

----S. 38---Constitution of Pakistan, Art. 199---Local Government Elections---Constitutional petition challenging the candidature of person contesting Local Government elections---Maintainability---Constitutional petition disfranchising a candidate could not be readily invoked when post-election challenge through election petition in terms of S. 38 of Punjab Local Government Act, 2013 was available.

Malik Muhammad Aslam, Advocate Supreme Court for Petitioners.

Syed Jamil Anwar Bukhari, Advocate Supreme Court for Respondents.

Date of hearing: 1st December, 2015.

2016 S C M R 900

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

KHALID HUSSAIN MAGSI---Appellant

Versus

Mir ABDUL RAHIM RIND and others---Respondents

Civil Appeal No. 1219 of 2014, decided on 2nd March, 2016.

(On appeal against the judgment dated 19-9-2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 178 of 2013)

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

----S. 70(b)---Illegal practices---Political influence exercised by candidates---Doubtful voting patterns---Zero vote count for returned and runner-up candidate in several polling stations---Average voter turnout at such polling stations almost three times more than the average voter turnout at other polling stations---Number of votes declared as doubtful in the counterfoils verification report greater than the lead secured by returned-candidate over runner-up candidate---Order for a fresh election in the constituency was justified in such circumstances.

In 21 polling stations the returned-candidate obtained not a single vote, whereas the runner-up candidate bagged 98.4% of the total votes that were cast. Similarly, in 33 polling stations where runner-up candidate had not obtained a single vote, the returned-candidate bagged 99.8% of the total votes cast. Question was as to why in 54 polling stations where one contesting candidate had not even bagged a single vote, the percentage of polled votes in favour of the other was phenomenally around 99%. Furthermore in the said 54 polling stations, in all 50,922 votes were polled, and the average vote count came to 943 votes per polling station (i.e. 96% voter turnout) whereas in the rest of 111 polling stations, where the remaining 37,358 votes were polled, this average stood at only 337 votes per polling station (i.e. 40% voter turnout). Question that arose was as to why in these 54 polling stations the turnout was almost triple in comparison to turnout on the rest of 111 polling stations. Such unimaginable differences in the voting pattern on 54 polling stations as against the remaining 111 polling stations could not be a simple case of mere coincidence, given the fact that both the returned-candidate and runner-up candidate had large following in the constituency. They were politically popular figures of the constituency as 92% of the total votes that were polled went to both of them only. Preponderance of probabilities led to the conclusion that both the candidates must have exerted their respective political clout in their respective areas of influence in order to bag maximum number of votes.

Moreover counterfoil verification report prepared by National Database and Registration Authority (NADRA) in respect of 39 polling stations showed that 7555 votes were doubtful, while returned candidate's winning margin was only 3325 votes.

Illegal practices were prevalent during the election, which was not conducted in a fair manner, therefore, the same was liable to be declared void as a whole in terms of section 70(b) of the Representation of the People Act, 1976. Election Tribunal had rightly ordered a fresh election in the constituency.

Kh. Saeed-uz-Zafar, Advocate Supreme Court and Muhammad Dawood Kasi, Advocate Supreme Court for Appellant.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondent No.1.

Date of hearing: 3rd February, 2016.

2016 S C M R 907

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

ABID---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 572-L of 2015, decided on 11th June, 2015.

(Against the order dated 8-4-2015 passed by the Lahore High Court, Lahore in Crl. Misc. No. 3164-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 337-A(i), 337-A(ii), 337-F(iii), 337-F(vi) & 337-L(2)---Qatl-i-amd, intention to commit qatl-i-amd---Allegation of firing at chest of deceased---Rule of consistency---Bailable offences---Injuries attributed to accused fell within the purview of Ss. 337-F(i) & 337-A(i), P.P.C., which were bailable offences---Co-accused who had also been attributed firearm injuries had already been allowed bail, therefore case of accused being at par with the said co-accused, also deserved the same treatment---Accused was released on bail in such circumstances.

Hammad Akbar Wallana, Senior Advocate Supreme Court for Petitioner.

Asjad Javaid Ghural, Additional P.-G. Punjab for the State.

Date of hearing: 11th June, 2015.

2016 S C M R 909

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Manzoor Ahmad Malik, JJ

ABDUL SATTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 108 of 2010, decided on 19th January, 2016.

(Against the judgment dated 18-6-2009 passed by the High Court of Balochistan, Quetta in Criminal Appeal No. 193 of 2008)

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

----S. 9(c)--- Possession of narcotic--- Reappraisal of evidence---Sentence, reduction in---Consolidated sample---Charas recovered from accused weighed 42 kilograms which was contained in 21 separate packets and the weight of each packet was two kilograms---Only one consolidated sample weighing 84 grams had been separated for chemical analysis---Weight of only one packet i.e. two kilograms of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence---Conviction of accused for an offence under S. 9(c) Control of Narcotic Substances Act, 1997 was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of Rs.20,000.

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

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Noman Shafique, Special Prosecutor, Balochistan for the State.

Date of hearing: 19th January, 2016.

2016 S C M R 910

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Gulzar Ahmed and Maqbool Baqar, JJ

Agha Syed MUSHTAQUE ALI SHAH---Appellant

Versus

Mst. BIBI GUL JAN and others---Respondents

Civil Appeal No. 13-K of 2015, decided on 7th March, 2016.

(Against the Judgment dated 15-10-2014 of High Court of Sindh, Hyderabad Bench passed in R.A. No. 293 of 2011)

(a) Gift---

----Mutation---Proof---Purported gift deed not in possession of purported donee---Purported donor and donee not appearing before revenue official for recording alleged gift in register of mutation---Circumstances under which alleged gift deed was lost and subsequently recovered not explained---Alleged arrangement/understanding between purported donee and other legal heirs whereby subject land was transferred to all legal heirs as an interim measure till the alleged gift deed was found was not supported either by documentary evidence or revenue record---Legal heirs were not obliged under law to accede to request of purported donee to transfer the entire subject land to him, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right of the purported donee---Plaint was rightly rejected in such circumstances.

No logic and reason was found for handing over the alleged gift deed to one of the defendants instead of the purported donee. There was no explanation as to who prevented the donor and purported donee from appearing before the Revenue Official within three months of the alleged gift, as essentially required in terms of section 42 of the Land Revenue Act 1967, so that factum of the alleged gift could have been recorded in the Roznamcha and the register of mutation, and attested by the Revenue Officer. Strangely the defendant who was in possession of the purported gift deed kept avoiding to proceed to have the necessary mutation effected, and/or hand over the gift deed to the purported donee over a long period of about eighteen years, though he had throughout this period claimed that it was in his power to have the mutation effected and never expressed any difficulty in such regard. Purported donee did not inform the purported donor, who was his father, about the reluctance of the defendant in such regard. It was also not explained as to how, where, under what circumstances and when the deed was lost/misplaced by the defendant. No explanation was given in respect of its recovery also.

Purported donee claimed that after the alleged gift deed was lost, he found out that some persons were trying to get the subject land transferred in their name through unscrupulous means, therefore, in order to secure the subject land he entered into an arrangement with other legal heirs to the effect that subject land should be transferred to all heirs as an interim arrangement with an understanding that the same shall be cancelled, and the entire land shall be transferred exclusively in favour of the purported donee as soon the lost gift deed was found. However had there been any such understanding/agreement, the purported donee would have had the same recorded in writing; he could have obtained affidavits from the other legal heirs to such effect, or at least could have had his statement recorded before the revenue authorities to such effect, and got the same incorporated in the relevant revenue record, but none of the above was done in the present case. In the present case there was not a single document/material, or circumstance in support of the contention that the mutation in question was merely a temporary device meant to be altered in favour of the purported donee upon a contingency. Purported donee thus having agreed to the transfer of the land by way of inheritance, without incorporating any conditionality and/or having even recorded the consent of the legal heirs for subsequent amendment in his favour, had in fact waived his purported right under the purported gift deed. Secondly, it was not explained as to how, when, through what means, purported donee came to know that some unscrupulous persons were trying to have the land transferred in their favour on the basis of some forged documents, and as to what was the nature of those forged documents.

Refusal of other legal heirs to accede to the purported donee's request for consenting to the transfer of the entire land in his favour did not provide any cause of action to the purported donee, as neither the legal heirs were under law obliged to accede to such request, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right to the purported donee, to entitle him to the relief sought. Plaint was rightly rejected in such circumstances.

(b) Sindh Land Revenue Act (XVII of 1967)---

----S. 41---Entry in record of rights---Interpretation and alteration of---Scope---Nothing could be read into, added or deleted to/from what was mentioned in a document, and more so when it was an entry in the record of rights, without their being an overriding, or a supplementary document, justifying such reading/interpretation.

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

----Ss. 39 & 42---Limitation Act (IX of 1908), Art. 120---Purported gift deed---Suit for declaration and cancellation of mutation---Barred by time---Declaration sought was with regard to a purported gift, allegedly made on 10-4-1971---Suit for declaration, in terms of Art. 120 of the Limitation Act, 1908, ought to have been filed within six years of the said gift deed, but was filed on 24-8-2010, after a lapse of more than, thirty eight years---Where the mutation sought to be cancelled had been effected on 11-4-1990, twenty years prior to the filing of the suit, although limitation for such relief was six years from the date of the cause of action, suit was rightly found to be patently barred by limitation.

Muhammad Afzal v. Muhammad Hayat 1994 SCMR 12; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Rehman v. Yara 2004 SCMR 1502; Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199; Wali v. Akbar 1995 SCMR 284 and Mst. Gul Nisa v. Muhammad Arif 1996 SCMR 1239 distinguished.

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

----Ss. 42, 53 & 54---Limitation Act (IX of 1908), S. 3---Possession of plaintiff over immovable property threatened by the defendants---Suit filed by plaintiff for declaration and injunction restraining the defendants from dispossessing him---Limitation---Date of accrual of cause of action---Principles---Where plaintiff's main claim was acceptance of his possession, and the effective relief prayed for was an injunction restraining the defendants from dispossessing him, and such relief was neither under or dependent on the deed/instrument, or the entry in question, and the declaration sought in relation thereto was merely of an ancillary nature, the plaintiff may seek protection of the Court whenever threat to his possession occurred, and the time in such circumstances, shall be computed from the date the possession was threatened.

Principle of law that the date of accrual of the cause of action for a suit for a declaration and injunction in respect of an immoveable property was not necessarily relatable to the date of the offending deed and/or the adverse entry, was not of universal application. Said principle could be pressed into service only in such cases where the plaintiff remained in possession of the property as its owner, and the document, (either it be a sale deed or a gift deed, or an adverse entry in the record of rights), on the basis whereof the defendant was threatening, and seeking to dispossess the plaintiff from the property, was ineffective on the rights of the plaintiff, and did not bind him in relation to the subject property, for such document being void ab initio, and thus a nullity, either for want of consideration, or on account of fraud and/or for lack of free, conscious and informed consent, and/or on account of the fact that the plaintiff was a minor when the purported document infringing his rights was allegedly prepared, or the adverse mutation was effected. Thus when the plaintiff's main grievance was that his possession was being threatened by the defendants, and his essential claim was acceptance of possession, and the effective relief prayed for was an injunction restraining the defendants from dispossessing him, and such relief was neither under or dependent on the deed/instrument, or the entry in question, and the declaration sought in relation thereto was merely of an ancillary nature, the plaintiff may seek protection of the Court whenever threat to his possession occurred, and the time in such circumstances, shall be computed from the date the possession was threatened. Plaintiff may in such a case seek protection of his right to continue to possess the property so long as such right of his was subsisting, as there was no compulsion to approach the Court with regard to an instrument which was void ab initio and a nullity.

Where the plaintiff was not bound by the document or if he was not claiming under, or on the basis thereof, the date of accrual of his right to sue shall not be relatable to the date of the document, or to the date when the existence and/or the nature of the document came to the knowledge of the plaintiff.

(e) Islamic Law---

----Inheritance---Co-sharer---Legal heir in exclusive possession of suit property had to be considered to be in constructive possession of the property on behalf of the other heirs.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

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

----O. VII, R. 11---Limitation Act (IX of 1908), S. 3---Question of limitation---Recording of evidence---Where suit was patently barred by limitation, no recording of evidence was required, and court could reject the plaint under O. VII, R. 11, C.P.C.---Principles.

Only in cases where determination as to when the cause of action for the suit arose, was dependent upon a certain factor, situation, happening or occurrence, existence, extent and the nature whereof could only be ascertained after recording evidence, that the question of limitation needed to be determined after recording such evidence. However, where on the plain reading of the plaint, it could be clearly seen that the suit was patently barred by limitation, no (recording of) evidence was required. In fact to plead that a plaint could not be rejected, for the suit being barred by limitation/law, without recording evidence, was to plead against the mandate of law as contained in Order VII, Rule 11, C.P.C., which essentially required the Court to reject the plaint which appeared from its contents to be barred by limitation.

Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Rehman v. Yara 2004 SCMR 1502; Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199; Wali v. Akbar 1995 SCMR 284; Mst. Gul Nisa v. Muhammad Arif 1996 SCMR 1239; Haji Abdul Sattar v. Farooq Inayat 2013 SCMR 1493; Irshad Ali v. Sajjad Ali PLD 1995 SC 629 and Muhammad Afzal v. Muhammad Hayat 1994 SCMR 12 ref.

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Respondents Nos.1 and 2 in person.

Date of hearing: 28th August, 2015.

2016 S C M R 931

[Supreme Court of Pakistan]

Present: Mushir Alam and Manzoor Ahmad Malik, JJ

HAROON-UR-RASHID---Appellant

Versus

LAHORE DEVELOPMENT AUTHORITY and others---Respondents

Civil Appeal No. 1519 of 2013, decided on 17th March, 2016.

(Against order dated 20-6-2013 of Lahore High Court, Lahore, passed in Writ Petition No.11584 of 2013)

(a) Interpretation of statutes---

----Rule of 'reading down'---Scope and principles---"Reading down" meant that a statutory provision was generally read and or toned or narrowed down, applying a restrictive meaning to its application---At the time of "reading down" of a statute two principles had to be kept in view; first that the object of "reading down" was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, could the statute remain functional; second, would the legislature have enacted the law if that issue had been brought to its notice which was being agitated before the Court.

Province of Sindh through Chief Secretary v. M.Q.M. through Deputy Convener PLD 2014 SC 531 ref.

(b) Interpretation of statutes---

----Rule of severance---Scope---Rule of severance meant to trim down or slice away invalid portion of a statute/provision which was otherwise generally considered to be part of statute or provision---Purpose was to save as much as (possible) to bring the statute or provision within the ambit of the Constitution and law declared by the superior Courts and to protect it from being declared ultra vires or unconstitutional as a whole---If such trimming or slicing away was possible then the Court declared such part to be beyond the legislative competence and left the remainder valid and operative.

(c) Interpretation of statutes---

----Courts had a duty to construe and apply laws to specific factual situations---Sometimes courts had to construe a particular law as meaning nothing and sometimes they had to construe the law as meaning something different from the letter of the law passed by the Parliament.

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

----Ss. 2(h)(i), 2(h)(ii) & 19--- Employees of a statutory corporation/authority/body proceeded against under statutory rules or any statutory dispensation (such as Punjab Employees Efficiency, Discipline and Accountability Act, 2006)---Appeal, remedy of---Scope---Remedy of appeal before the Punjab Service Tribunal against any order passed under Ss. 16 & 17 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 could only be invoked and availed by the employees falling within the ambit of S. 2(h)(ii) of the said Act and not by employees of statutory corporation/authority/body etc. falling under S. 2(h)(i) of the said Act.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 ref.

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

----Ss. 2(h)(i) & 19---Constitution of Pakistan, Art. 199---Employees of a statutory corporation/authority/body proceeded against under statutory rules or any statutory dispensation (such as Punjab Employees Efficiency, Discipline and Accountability Act, 2006)---Remedy of filing Constitutional petition before the High Court---Such employees could challenge action of the competent authority under Art. 199 of the Constitution of Pakistan.

Muhammad Amin and another v. Government of Punjab and others 2015 SCMR 706 = 2015 PLC (C.S.) 1082 ref.

Muhammad Masood v. Market Committee 2014 PLC (C.S.) 1080 declared as incorrect law.

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

----Ss. 2(h)(i) & 19---Lahore Development Authority Act (XXX of 1975), Ss. 4 & 45---Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978---Constitution of Pakistan, Art. 199---Employee of Lahore Development Authority proceeded against under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Remedy of filing Constitutional petition before the High Court---Lahore Development Authority ("the Authority") was a statutory authority created under S. 4 of Lahore Development Authority Act, 1975---Employee of the Authority, in the present case, was proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, which was a statutory intervention in a disciplinary matter, therefore, irrespective of the fact that the Service Regulations of the Authority were non-statutory, yet the employee was not proceeded under the Service Regulations but under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, which was a statutory enactment---High Court, therefore, had the jurisdiction under Art. 199 of the Constitution to examine the proprietary of the impugned action taken against the employee under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

Muhammad Amin and another v. Government of Punjab and others 2015 SCMR 706 = 2015 PLC (C.S.) 1082 ref.

Mehboob Azhar Sheikh, Advocate Supreme Court for Appellant.

Khurram Raza Ch., Advocate Supreme Court and Rana Umar Saeed, Dy. Dir (SEP) for Respondents.

Date of hearing: 26th February, 2016.

2016 S C M R 943

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Khilji Arif Hussain, JJ

ISHTIAQ AHMED---Petitioner

Versus

HON'BLE COMPETENT AUTHORITY through Registrar, Supreme Court of Pakistan---Respondent

Constitutional Petition No. 97 of 2014, decided on 13th January, 2016.

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

Per Khilji Arif Hussain, J.: Anwar Zaheer Jamali, C.J. and Umar Ata Bandial, J. agreeing.

(a) Constitution of Pakistan---

----Art. 9---'Access to justice'---Definition---Access to justice had been defined as an equal right to participate in every institution where law was debated, created, found, organized, administered interpreted and applied---Broadly it had been described as an integral part of the rule of law in constitutional democracies and was a hallmark of civilized society.

(b) Supreme Court Establishment Service Rules, 2015---

----R. 17---Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, Rr. 11 & 13 [since repealed]---Constitution of Pakistan, Arts. 9 & 10A---Officer/staff member of the Supreme Court---Appeal against dismissal from service---Bar against representation by a counsel before the Appellate Forum--- Constitutionality--- Rule 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 [since repealed] and R. 17 of the Supreme Court Establishment Service Rules, 2015, which barred an accused officer/staff member of the Supreme Court from being represented by a counsel before the Appellate Forum were not ultra vires the Constitution---Besides no allegation of bias, prejudice or partisanship was made against any member of the Bench (Appellate Forum) who heard the appeal in the present case---[Per Umar Ata Bandial, J.: Procedural statutes which regulated Court proceedings and granted the right of representation to an accused or a defendant, did not apply to the proceedings of a domestic appellate forum in disciplinary proceedings]---Constitutional petition was dismissed accordingly.

Petitioner, who served as a Private Secretary in the Supreme Court, was dismissed from service on orders of the Chief Justice of Pakistan. Petitioner filed an appeal against order of his dismissal before three most senior Judges of the Supreme Court contending that R. 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 [since repealed] and R. 17 of the Supreme Court Establishment Service Rules, 2015 were ultra vires the Constitution as they barred the petitioner from being represented by a counsel.

Petitioner had failed to address that how prejudice had been caused by the Appellate Forum constituting of three senior most available Judges of the Supreme Court merely because he had been denied the right of representation through a counsel. Issue before the Appellate Forum was whether there was any justification available for petitioner's long absence from the duty, against the documents produced by the parties and after taking into consideration the order of the dismissal passed by the Chief Justice of Pakistan imposing major penalty, the petitioner had not alleged any basis, prejudicial or partisan against any member of the Bench who heard the appeal.

Per Umar Ata Bandial, J.: Constitutional right of fair trial, due process and access to justice or inherent rights that predicated every proceeding that may conclude in a penalty being imposed on an accused person, did not lay down any requirement that an affected accused officer before any 'domestic fora' in disciplinary proceedings must be represented by counsel.

Constitutional right of consultation with and defence by a counsel under Article 10(1) of the Constitution, in other words the right of representation was limited to cases involving arrest, detention and confinement under the law of the land, whether it was criminal law, a detention law or any other law imposing penalty of confinement upon an offending person. None of the penalties that could be imposed under the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, [since repealed and replaced by the Supreme Court Establishment Service Rules 2015] inflicted the personal restraints on the liberty of an accused person that were envisaged by Article 10(1) of the Constitution. It was therefore clear that the express exclusion of the right of representation of an accused by counsel under Rule 13 of Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 (since repealed and now replaced by Rule 17 of the Supreme Court Establishment Service Rules 2015) did not violate any of his rights conferred by the Constitution or the law. Equally procedural statutes which regulated the Court proceedings and granted the right of representation to an accused or a defendant, did not apply to the proceedings of a domestic appellate forum in disciplinary proceedings. These statutes were the Code of Criminal Procedure, 1898 and the Code of Civil Procedure, 1908. Exclusion of said statutes did not offend or violate any higher right conferred on an accused person in disciplinary proceedings by the law or the Constitution.

Significant difference existed between the substantive nature of trial by a Court of law as against the proceedings in a domestic disciplinary forum. Consequently, the entitlement of representation of an accused by counsel before a trial Court could not by analogy be imported for the proceedings of a domestic appellate disciplinary forum constituted by Rule 11 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 (since repealed). The relief of representation through a counsel claimed by the petitioner in the present case was neither apt nor appropriate for the fora established under disciplinary laws governing the service rights of officers and staff (of the Supreme Court) that were governed by rules having the force of law. Constitutional petition was dismissed accordingly.

(c) Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982---

----Rr. 11 & 13---Supreme Court Establishment Service Rules, 2015, R. 17---Constitution of Pakistan, Art. 184(3)---Appeal against dismissal from service---Order passed by a three Member Bench of the Supreme Court, while exercising power under R. 11 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 and R. 17 of the Supreme Court Establishment Service Rules, 2015 as a domestic Tribunal, was not and could not be equated to an order passed by the Supreme Court under Art. 184 of the Constitution, and an aggrieved person, if so advised, could question the same before the competent forum.

Per Umar Ata Bandial, J; agreeing with Khilji Arif Hussain, J.

(d) Constitution of Pakistan---

----Art. 4---Right of due process---Requirements---Right of due process required that a person shall have notice of proceedings which affected his rights; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess competent jurisdiction.

New Jubilee Insurance Company v. National Bank of Pakistan PLD 1999 SC 1126 ref.

(e) Constitution of Pakistan---

----Art. 10-A---Right of fair trial---Scope---Right of fair trial meant grant of a proper hearing to an accused person by an unbiased competent forum, and that justice should not only be done but be seen to be done---Right of fair trial cast on an adjudicatory tribunal or forum a duty to treat a person in accordance with law, to grant him a fair hearing, and for itself to be an impartial and a fair tribunal.

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

(f) Civil service---

----'Disciplinary proceedings' and 'criminal proceedings' against an accused officer---Result of disciplinary proceedings was not bound by or dependent upon the outcome of criminal proceedings initiated for the same wrongful act against the same accused officer---Rationale for such rule was founded upon the subjective element present in disciplinary proceedings that concerned the suitability and the fitness of an accused officer to remain in government service when he had not been acquitted on the merits of the charge alleged against him.

Nawaz Khan v. Federal Government 1996 SCMR 315 and Arif Ghafoor v. Managing Director, HMC PLD 2002 SC 13 ref.

(g) Civil service---

----'Disciplinary proceedings' and 'criminal proceedings' against an accused officer---Burden of proof---Burden of proof in disciplinary proceedings was lighter than it was in criminal proceedings for the same wrong and against the same accused.

Hamid Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Sohail Mehmood, DAG for the Federation on Court's Notice.

Ayaz Khan Swati, Additional AG for the Balochistan on Court's Notice.

Abdul Latif Yousafzai, A.G. for Khyber Pakhtunkhwa on Court's Notice.

Muddassar Khalid Abbasi, Assistant A.G. for the Punjab on Court's Notice.

Sheryar Qazi, Additional A.G. for the Sindh on Court's Notice.

Date of hearing: 13th January, 2016.

2016 S C M R 958

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry, Gulzar Ahmed and Iqbal Hameedur Rahman, JJ

MUHAMMAD MANSHA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 615 of 2009, decided on 28th October, 2015.

(On appeal against the judgment dated 11-2-2009 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos. 2-J-03, 1197-02, 1624-02 and M.R. No. 683 of 2002)

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

----Ss. 302, 324, 34 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment--- Reappraisal of evidence--- Death sentence, confirmation of---Cold-blooded murder---Promptly lodged FIR with specific role of firing assigned to accused---Day time occurrence---Medical evidence corroborated ocular account given by eye-witnesses--- Weapon recovered from accused matched crime empties recovered from the scene of occurrence---Presence of eye-witnesses at the scene of occurrence was natural as they resided near the place of occurrence---Site plan showed there was no obstacle between the eyes-witnesses and accused, thus, no possibility existed of accused not being properly identified---Appeal was dismissed accordingly and death sentence awarded to accused was confirmed.

Ata Muhammad and another v. The State 1995 SCMR 599 and Sarfraz alias Sappi and 2 others v. State PLD 2000 SC 1505 distinguished.

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

----S. 302---Qatl-i-amd---Reappraisal of evidence---Brother of deceased as eye-witness of the occurrence---Evidence of such eye-witness, reliance on---Scope---Evidence of eye-witness (brother of deceased) corroborated by recovery and medical evidence, and also matching evidence of other independent eye-witness---Eye-witness account given by deceased's brother could be safely relied upon in such circumstances.

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

----S. 302--- Qatl-i-amd--- Death sentence, award of--- Mitigating circumstances for reducing death sentence to life imprisonment---Lengthy incarceration of a convict as a condemned prisoner on its own was not a ground for seeking mitigation for reducing death sentence to life imprisonment.

Dilawar Hussain v. The State 2013 SCMR 1582 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Pir S.A. Rashid, Advocate Supreme Court for the Complainant.

Date of hearing: 28th October, 2015.

2016 S C M R 986

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

ISLAM-UD-DIN through L.Rs and others---Appellants

Versus

Mst. NOOR JAHAN through L.Rs and others---Respondents

Civil Appeal No. 94-P of 2012 and Civil Appeal No. 1445 of 2013, decided on 2nd March, 2016.

(On appeal from the judgment dated 27-6-2012 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Civil Revision Nos. 470 and 604 of 2003)

(a) Inheritance---

----Daughters deprived of their share of inheritance---Agricultural land---Mutation entries in name of sons only---Patwari Halqa was not questioned about the validity of the said mutations---Tehsildar who attested the mutations was not produced and no explanation for his non-production was forthcoming---On all the three mutations against the name of the deceased a thumb impression was affixed, but no effort was made to confirm the authenticity thereof---Out of the two attesting witnesses of the mutations, only one was produced and no reason was given for the non-production of the other witness [Article 79 of the Qanun-e-Shahadat, 1984 stipulated that a document "shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution"]---Mutations entries in the present case had to be disregarded.

(b) Gift---

----Proof---Daughters deprived of their share of inheritance by alleged gift made in name of sons only---Purported gift document simply stated that the suit properties had been given by the deceased to his three sons---Said document was purportedly signed by the deceased in the presence of three persons, however only one such person appeared as a witness---Consequently, purported gift document failed to meet the requirement of two attesting witnesses (as prescribed in Art. 79 of the Qanun-e-Shahadat, 1984) and remained unproved---Purported gift document in the present case could not be categorized as a gift as the necessary ingredients of gift were not established, including the acceptance of the alleged gift of the suit properties---Purported gift document also could not be categorized as 'conveyance' or even as an 'agreement'---After the purported execution of the alleged gift document the same was not acted upon by the sons, in that the suit properties were not mutated/transferred in their names on the basis thereof---Purported gift document had to be disregarded in such circumstances.

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

----S. 115---Qanun-e-Shahadat (10 of 1984), Art. 79---Revisional jurisdiction---Power of High Court to set aside findings of courts below---Scope---High Court, in the present case, exercised its revisional jurisdiction to set-aside findings of the two courts below rather than remanding the matter---Propriety---Both the courts below had exercised jurisdiction vesting in them illegally or with material irregularity, as they disregarded Art. 79 of the Qanun-e-Shahadat, 1984 and misread or did not read the evidence---Since the parties had already led evidence and the material facts had clearly emerged the High Court had correctly exercised its revisional jurisdiction under the Civil Procedure Code, 1908 and set aside findings of both the courts below.

Nabi Baksh v. Fazal Hussain 2008 SCMR 1454 ref.

Gulzarin Kiani, Senior Advocate Supreme Court for Appellants (in both cases).

Zahoor-ul-Haq Chishti, Advocate Supreme Court for Respondents (in C.A. 94-P of 2012).

Sher Muhammad Khan, Advocate Supreme Court for Respondents (in C.A. 1445 of 2013).

Date of hearing: 11th January, 2016.

2016 S C M R 992

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Khilji Arif Hussain, JJ

Professor Dr. RAZIA SULTANA and others---Appellants

Versus

Professor Dr. GHAZALA YASMEEN NIZAM and others---Respondents

Civil Appeals Nos. 77 - 78 of 2015, decided on 3rd March, 2016.

(Against the judgment dated 16-12-2004 passed by the Peshawar High Court in W.P. No.1255-P of 2014)

(a) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----Ss. 12 (1) & (2)---Post of Vice Chancellor of University---Selection process---Names of three shortlisted candidates sent to Appointing authority for recommendation---Appointing authority exercising its discretion to recommend candidate appearing at serial No.3 on the said list---Legality---Policy making domain of the Executive---Scope---Absolute power of appointment was not given to authorities in the present case to appoint any person of their choice but the Search Committee consisting of eminent professionals was constituted which after detailed scrutiny of the credentials and interview of each candidate, recommended three names, without any preference---Section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012 gave discretion to the Chancellor/Governor to appoint anyone out of the three candidates recommended by the Search Committee on the advice of Chief Minister---No mala fides on part of Appointing authority were proved---Appeal was allowed accordingly.

Provincial Higher Education Department prepared a merit list of short listed candidates who were going to be interviewed by the Search Committee. According to merit list the respondent-candidate was awarded 52 marks whereas the appellant-candidate was awarded 38 marks. Search Committee interviewed the short listed candidates and finally three candidates including the appellant and respondent were unanimously recommended by the Search Committee and their names were forwarded to the Chief Minister. Respondent-candidate's name appeared at serial No.1 of the list whereas the name of appellant-candidate appeared at serial No.3. Chief Minister recommended the name of appellant-candidate to be appointed as Vice Chancellor and accordingly, after approval of the Governor/Chancellor, a notification was issued in such regard.

Marks were allocated to the candidates on the basis of evaluation proforma for the purpose of short listing the candidates who applied for the position of Vice Chancellor. On the basis of these marks, the Search Committee, constituted under section 12(2) of the Khyber Pakhtunkhwa Universities Act, 2012, interviewed all the fifteen (15) out of twenty (20) candidates. Search Committee, consisting of eminent professionals, had not allocated any marks to any candidate as was evident from the minutes of the said Committee. Search Committee, after a lengthy interview consisting of questions relating to University administration, professional and academic abilities etc. unanimously recommended three names out of which the Chancellor/Governor, in exercise of his powers under section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012, appointed the appellant-candidate as Vice Chancellor.

In the present matter, absolute power of appointment was not given to authorities i.e. the Chancellor/Governor to appoint any person of their choice but the Search Committee consisting of eminent professionals was constituted which after detailed scrutiny of the credentials and lengthy interview of each candidate, recommended three names, without any preference. Chancellor/Governor, on the advice of the Chief Minister, appointed one candidate out of the three candidates in exercise of his powers. Section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012 gave discretion to the Chancellor/Governor to appoint anyone out of the candidates recommended by the Search Committee on the advice of Chief Minister. Only allegation against the appellant-candidate was that she belonged to the constituency of the Chief Minister but without any supporting material, it could not be termed as an act of mala fide.

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Muhammad Yasin v. Federation of Pakistan PLD 2012 Sc 132 distinguished.

Dossani Travels Pvt. Ltd. v. Travels Shop Pvt. Ltd. PLD 2014 SC 1 and Executive District Officer (Revenue) v. Ijaz Hussain 2011 SCMR 1864 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Purpose---Purpose of judicial review were, first, to check abuse or detournement of power; second, to ensure to citizens an impartial determination of their disputes with officials; and third, to protect them from unauthorized encroachment on their rights and interests.

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. 77 of 2015).

Waqar Ahmed Khan, Additional A.G. Khyber Pakhtunkhwa for Appellants (in C.A. 78 of 2015).

Qazi Jawad Ehsanullah, Advocate Supreme Court for Respondent No.1 (in both cases).

Applicants in person (in C.M.A. 1009 of 2015).

Ms. Farah Hamid, Secretary, HED, Khyber Pakhtunkhwa and Hamid Ali, SO on Court's Notice.

Date of hearing: 3rd March, 2016.

2016 S C M R 998

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

Ch. MUHAMMAD ASHRAF WARRAICH and another---Appellants

Versus

MUHAMMAD NASIR CHEEMA and others---Respondents

Civil Appeals Nos. 1169 and 1192 of 2014, decided on 11th May, 2015.

(Against judgment dated 5-8-2014 of Election Tribunal, Lahore, passed in Election Petition No. 226 of 2013)

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

----S. 46---Election Tribunal, powers of---Scope---Appointment of a Commission to inspect the record of the certain polling stations---Election Tribunal enjoyed authority to carry out the exercise of examination of polled ballot either itself or through commission and may order inspection and or recount of the ballot papers---Such authority, however, was to be exercised with circumspection and care by application of mind on the strength of tangible and material evidence.

Returning Officer and the Election Commission rejected application of election petitioner for inspection of record. However Election Tribunal allowed application of election petitioner under section 46 of the Representation of the People Act, 1976 and appointed a Commission to inspect the record of the 33 challenged polling stations. Returned candidate raised the objection that once applications for inspection of record had been rejected by the Returning Officer and the Election Commission respectively, the Election Tribunal should not have appointed a Commission to inspect and examine the counted ballot papers.

Election Tribunals were bestowed power to inspect and examine the ballot papers of all sorts i.e. polled, rejected, or spoiled etc. Such powers could not be invoked by any party to the election petition on mere ipse dixit nor, could be exercised by the Election Tribunal on its own whims and fancy and or mechanically. Party seeking such recourse or inspection and examination of counted ballot papers had to demonstrate and show to the satisfaction of the Election Tribunal that there had been improper, reception, refusal, or rejection of votes which had affected the outcome of the election materially. Election Tribunal, enjoyed elaborate and extensive authority to carry out the exercise of examination of polled ballots either itself or through commission and may order inspection and or recount of the ballot papers, however, same were to be exercised with circumspection and care by application of mind on the strength of tangible and material evidence, prima facie establishing that there had been wrong inclusion or exclusion of the ballot papers in the course of ballot count that had direct and material bearing on the final outcome of the result of the election. Objection of returned candidate with respect to appointment of Commission was dismissed accordingly.

Ehsanullah Reki v. Abdul Qadir Baloch 2010 SCMR 1271 ref.

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

----S. 103AA---Power of the Election Commission to declare the poll in any constituency to be void---Such power included declaring and directing partial re-poll in some of the polling stations and not in the entire constituency.

Ghulam Ali v. Election Commission PLD 1991 Kar. 396; Salahuddin Tirmizi v. Election Commission of Pakistan 2008 YLR 1624; Wahid Bukhash Khan Bhayo v. Ghouse Bukhash Mahar 2012 CLC 39; Aftab Shaban Merani v. Muhammad Ibrahim PLD 2008 SC 779; Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352 and Manzoor Hussain v. Election Commission 2004 SCMR 672 ref.

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

----Ss. 67(1) & 70(a)---Election Tribunal, powers of---Scope---In terms of S. 67(1) of the Representation of the People Act, 1976 Election Tribunal had the power to order a partial re-poll in some of the polling stations rather than declaring election as a whole to be void and ordering re-poll in the entire constituency.

Election Tribunal had the power to grant all or any of the reliefs wholly or partly as set out in section 67(1) of the Representation of the People Act, 1976 and to direct the Election Commission to take such ancillary and incidental steps as may be necessary to ensure honest, just and fair election in accordance with law and further to ensure that corrupt practices were guarded against.

Where the result of few challenged polling stations did not materially affect the overall result of the election then an order of invalidating the election either as a whole or in part would not be justified or warranted. However, where the ultimate result of the election was dependent on the outcome of the ballot count of even one or few polling stations, then order "declaring the election of the returned candidate to be void" in terms of section 67(1)(b) read with section 70(a) of the Representation of the People Act, 1976 may be justified and ordering partial poll to the extent of such challenged polling station would only be necessitated, instead of declaring the election as a whole to be void.

Election Tribunal in consideration of ground realities and circumstances of each case may suitably mould the relief as may be appropriate, just, proper and fair.

(d) Administration of justice---

----Partial relief---Where a Court or Tribunal was conferred jurisdiction and power to grant large (whole) relief under the law, it also had jurisdiction to grant smaller (partial) relief.

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

----Ss. 67(1) & 70---Election Tribunal, powers of---Scope---Partial re-poll---Non-performance of statutory duties by the Returning and Presiding Officers in 33 polling stations---Vote count of disputed 33 polling stations materially affecting the overall result of the election---Election Tribunal in such circumstances had the power to declare the election of returned candidate as void and order a partial re-poll only in the disputed 33 polling stations instead of declaring the election as whole to be void and ordering a re-poll in the entire constituency.

On election day election staff committed omissions and illegalities in respect of 33 polling stations of the subject constituency, and the vote count of the said polling stations had material bearing on the eventual outcome of the result of the election. In the present case, the difference between the returned candidate and runner up candidate was only 5,885 votes and between the returned candidate and the election petitioner only 7,421 votes. Total number of votes casted in favour of all the contesting candidates in disputed 33 polling stations as per consolidated statement in Form XVI was 34,229 votes, whereas only 19,500 polled votes were recovered from the bags of said 33 polling stations. There was staggering difference of 14,929 votes which was more than double the difference between the contestant parties. Thus it could be seen that the total votes cast in the disputed 33 polling stations would in fact determine the fate of contesting candidates in accordance with the will of the people. It was established on record that only the result of 33 polling stations was stained and soiled by non-performance of statutory duties by the Returning and Presiding Officers.

Election Tribunal was justified to declare the election of the returned candidate as void, for the simple reason, that if the vote count of disputed 33 polling stations was excluded, overall result would not be reflective of the true will of electors of the constituency.

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

----Ss. 67(1) & 69---Election of returned candidate declared void---Not necessary that in such circumstances the election petitioner or another contesting candidate should automatically be declared as the returned candidate---Election Tribunal could declare the election petitioner or another contesting candidate as the winner instead of the returned candidate, only if it was prayed for and if the Tribunal was satisfied that the election petitioner or other contesting candidate was "entitled" to be declared elected.

Whenever the election of a returned candidate was declared "wholly void", the election petitioner would not as a matter of right be declared elected. No doubt section 67(1)(c) read with section 69 of the Representation of the People Act, 1976, did empower the Election Tribunal to declare the election petitioner or any of the contesting candidate to be declared as elected in event, the election of the returned candidate was annulled, and the election petitioner and or any of the respondents had so prayed; and secondly in cases where the Election Tribunal was satisfied that the election petitioner or such other contesting candidate was `entitled' to be declared elected. Thus it was clear that swapping of election petitioner and or any other contesting candidate was neither automatic nor a natural corollary to the invalidation of election of returned candidate, but was subject to two qualifying conditionalities as noted.

Questions as what constituted Election Tribunal being satisfied and when the election petitioner or other contesting candidate became "entitled" to be declared elected were neither elucidated nor any parameters were provided either under the Representation of the People Act, 1976 or Rules framed thereunder. However, satisfaction of the Election Tribunal to exercise power under section 67(1)(c) read with section 69 of the Representation of the People Act, 1976, was to be based on rational criteria, guided by good conscience. One of the rational considerations may be where on the basis of recount of total votes and or on re-examination of valid and invalid vote count, the election petitioner and or any other contesting candidate had secured highest number of total valid votes as against the returned candidate; or in a situation, where votes of certain polling stations for any reason had not been correctly added up in the total vote count. In such like situation the outcome, was clear leaving no doubt and ambiguity in determining as to who had emerged successful. Election Tribunal could declare the election petitioner or any other contesting candidate, having secured highest number of vote as duly elected.

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

----Ss. 67(1) & 69---Election of returned candidate declared void---Not necessary that in such circumstances the election petitioner or another contesting candidate should automatically be declared as the returned candidate---Election petitioner had to establish that he was "entitled to be declared elected" instead of the returned candidate---In the present case, difference of vote count between the returned candidate, the runner up candidate and the election petitioner was much less than the number of votes found to be missing from vote bags of disputed polling stations, thus it could not be determined as to which of the contesting candidate commanded the confidence of the majority of the electorate---Election petitioner could not be declared as 'elected' in such circumstances without a re-poll in the disputed polling stations.

Returned candidate, in the present case, was shown to have secured 7,421 votes more than the election petitioner, and his lead was even narrow i.e. merely 5,885 votes as against the runner-up candidate. Election of the returned candidate was not declared to be void as a "whole" in terms of section 67(1)(d) of the Representation of the People Act, 1976 rather on account of discrepancy or missing valid votes count of actual votes casted in 33 challenged polling station, the Election Tribunal was persuaded to declare the election of the returned candidate as void within the contemplation of section 67(1)(b) of the Representation of the People Act, 1976. Total number of votes casted in all 33 challenged polling station, as per consolidated statement of votes count in Form XVI came to 34,229 votes, whereas, only 19,500 polled votes were recovered from the bags of all such polling stations. There was no explanation as to where the 14,929 votes disappeared. Since difference of votes count between the returned candidate, the runner up candidate and the election petitioner was much less than the missing number of votes, none of the parties to dispute could claim nor it could be determined as to which of the contesting candidate commanded the confidence of the majority of the electorate in the subject constituency. Election petitioner, was not able to make out any case whereby he could become "entitled to be declared elected" within the contemplation of section 69 of the Representation of the People Act, 1976.

Ch. Aamir Rehman, Advocate Supreme Court for Appellants (in C.A. 1169 of 2014).

Ch. Khurshid Anwar Bhindar, Advocate Supreme Court for Appellants (in C.A. 1192 of 2014).

Ch. Khurshid Anwar Bhindar, Advocate Supreme Court for Respondent No.1 (in C.A. No. 1169 of 2014).

Ch. Aamir Rehman, Advocate Supreme Court for Respondent No.1 (in C.A. No. 1192 of 2014).

Date of hearing: 11th May, 2015.

2016 S C M R 1019

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Iqbal Hameedur Rahman, JJ

MUHAMMAD JAMSHAID and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 86 and 462 of 2012, decided on 26th November, 2015.

(Against the judgment dated 6-6-2011 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.233 and 124 of 2007 and Criminal Revision No.46 of 2007)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Dead body of deceased was found in the house of accused---Other members of accused's family also inhabited said house, thus it could not be concluded that it was definitely the accused who committed the murder---Murder was unwitnessed---Motive was disbelieved and ruled out of consideration by Trial Court---Role played by accused in the murder never became available on record---Prosecution did not disclose the circumstances under which deceased was done to death---Prosecution failed to prove its case beyond reasonable doubt---Conviction and sentence of accused under S. 302(b), P.P.C. was set aside in circumstances.

(b) Criminal trial---

----Proof---Standard of proof---Strong suspicion---Suspicion howsoever grave or strong could never be a proper substitute for proof beyond reasonable doubt required in a criminal case.

Shahid Azeem, Advocate Supreme Court for Appellants (in Cr. A. 86 of 2012).

Nemo for Appellants (in Cr. A. 462 of 2012).

Shahid Azeem, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No.1 (in Cr. A. 462 of 2012).

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

Date of hearing: 26th November, 2015.

2016 S C M R 1021

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

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

Versus

HAYAT HUSSAIN and others---Respondents

Civil Appeals Nos. 1213 and 1214 of 2015, decided on 25th February, 2016.

(On appeal against the judgment dated 28-5-2014 passed by the Peshawar High Court, Peshawar, in W.Ps. Nos. 3857 and 4423 of 2010)

(a) Civil service---

----Promotion---Policy matter---Non-interference by courts---Eligibility criteria of promotion was essentially an administrative matter falling within the exclusive domain and policy decision making of the government and interference in such matters by the Courts was not warranted.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Promotion---Ouster of jurisdiction of High Court---No vested right of a government employee was involved in the matter of promotion or the rules determining their eligibility or fitness---High Court had no jurisdiction by means of Constitutional petition to strike down such rules.

The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 and Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172 ref.

(c) Khyber Pakhtunkhwa Provincial Management Service Rules, 2007---

----Sched. 1, S. No. 1---Civil service---Advertised posts---10% reserved quota for employees of ministerial staff restricted to employees of Civil Secretariat only (through amendment in Khyber Pakhtunkhwa Provincial Management Service Rules, 2007)---Policy decision of the Government---No mala fides attributable to the Government---Interference by courts not warranted in such circumstances.

Provincial Government advertised 53 posts in BPS-17 in the Provincial Management Service. Respondents who were serving in attached departments/subordinate offices of Provincial Government applied for the said posts under the 10% reserved quota for ministerial staff as per the Khyber Pakhtunkhwa Provincial Management Service Rules, 2007. Subsequently the advertisement was withdrawn and the Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 were amended to the effect that 10% reserved quota was restricted only to persons serving in the Provincial Civil Secretariat. Grievance of respondents was that discriminatory treatment was being given to them, as they were performing the same functions as that of Secretariat employees as such they could not be excluded from the 10% reserved quota because they fulfilled the qualification and experience.

Advertisement earlier made had subsequently been withdrawn and thereafter an amendment was made in the Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 and as yet the employees had not appeared either in the examination or in any interview or selection, therefore, there appeared to be no vested right created in their favour, and accordingly any change made in the said Rules could not furnish a cause to the employees. Moreover, the amendment was made in the Rules in order to clarify certain anomalies, which had duly been taken care of, as such no mala fide could be attributed to the Government determination of eligibility of the employees through the amendment in question fully fell within the domain and policy decision of the Government which did not warrant interference by the Courts.

Waqar Ahmed Khan, Additional A.-G. for Appellants (in both cases).

Respondents in person.

Date of hearing: 25th February, 2016.

2016 S C M R 1030

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Qazi Faez Isa, JJ

Messrs X.E.N. SHAHPUR DIVISION (LJC) QUARRY SUB-DIVISION, SARGODHA---Appellant

Versus

The COLLECTOR SALES TAX (APPEALS) COLLECTORATE OF CUSTOMS FEDERAL EXCISE AND SALES TAX FAISALABAD and others---Respondents

Civil Appeal No. 493 of 2011, decided on 1st March, 2016.

(On appeal from the judgment dated 30-7-2008 in W.P. No.8532 of 2008 passed by the Lahore High Court, Lahore)

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

----Ss. 2(35) & 2(41)---Constitution of Pakistan, Arts. 165(1) & 260---Property of Provincial Government exempt from sales tax---Quarried stones/spawl utilized by the Executive Engineer of Provincial Irrigation Department or supplied by him to other departments of the Provincial Government for use in public works---Executive Engineer (XEN) of Provincial Irrigation Department was a civil servant who was performing duties for or on behalf of the Provincial Government---Sales tax could not be levied on the property of a Provincial Government as it was exempted under Art. 165(1) of the Constitution---Stones or spawl within the territory of the province was 'property' owned by the Provincial Government, therefore it was exempt from Sales tax as laid down in Art. 165(1) of the Constitution.

Executive Engineer was a civil servant and carried out the functions and duties of his office for and on behalf of the Provincial Government. Admittedly, the Executive Engineer was never in business for himself nor was he selling or supplying the quarried stones/spawl to private parties. The quarried stones/spawl were utilized by the Executive Engineer or supplied by him to other departments of the Provincial Government for use in public works. Under the Punjab Government Rules of Business, 2011 ("the Rules") the 'Irrigation Department' had the responsibility to construct and maintain " barrages, rivers, canals, tube-wells, drainage schemes, storage of water and construction of reservoirs, flood control and flood protection schemes". Provincial Government carried out its business some of which it did through the Executive Engineer, therefore, the Executive Engineer in respect thereof could not be viewed separately from the Government and came squarely within the terms of Article 165(1) of the Constitution.

Stones/spawl came within the term "property" as used in Article 165(1) of the Constitution. Article 260 of the Constitution defined property in wide terms, to include "any right, title or interest in property, movable or immovable, and any means and instruments of production". Stones/spawl could not be excluded from such definition of property. Stones/spawl within the territory of the province was owned by the Provincial Government, in respect whereof laws could only be made by the Provincial Assembly and the same being property of Provincial Government was exempted from Sales Tax (Federal Taxation) as laid down in Article 165(1) of the Constitution.

Union Council v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468; Zila Council Jhang v. Daewoo Corporation 2001 SCMR 1012; Collector of Sales Tax and Central Excise v. WAPDA 2007 SCMR 1736; WAPDA v. Administrator District Council 2005 SCMR 487; Province of N.-W.F.P. v. Pakistan Telecommunication Corporation PLD 2005 SC 670; Karachi Development Authority v. Central Board of Revenue 2005 PTD 2131; Pakistan Television Corporation Limited v. Capital Development Authority 2011 SCMR 1117 and Province of Punjab v. Federation of Pakistan 1998 SCMR 1342 distinguished.

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

----Ss. 2(35) & 2(41)---Constitution of Pakistan, Art. 165(1)---No estoppel against the Constitution---Principles---Sales tax, exemption from---Executive Engineer (XEN) of Provincial Irrigation Department, mistakenly continued paying sales tax on quarried stones/spawl, when the same was exempt from payment of sales tax under Art. 165(1) of the Constitution---Held, that where a person, albeit an officer of the Provincial Government, despite being exempted under the Constitution mistakenly paid sales tax, he could not be compelled to continue doing so---Exemption contained in the Constitution would prevail over any statute and it would be inconsequential that the tax was earlier paid---No estoppel existed against the Constitution.

Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab for Appellant.

Syed Arshad Hussain Shah, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos.1 and 2.

Muhammad Waqar Rana, Additional Attorney-General on Courts' Notice.

Date of hearing: 29th January, 2016.

2016 S C M R 1087

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman and Mushir Alam, JJ

MUNAWAR HUSSAIN BUKHARI---Petitioner

Versus

APPELLATE AUTHORITY/TRIBUNAL, ALIPUR DISTRICT MUZAFFARGARH and others---Respondents

Civil Petition No. 3460 of 2015, decided on 25th March, 2016.

(Against order dated 9-11-2015 of Lahore High Court, Multan Bench, passed in Writ Petition No. 16621 of 2015)

(a) Punjab Local Government Act (XVIII of 2013)---

----Ss. 27(2)(e), 27(2)(g) & 27(2)(h)--- Disqualifications for candidates---"Person in service of any 'statutory body' or a 'body' which was owned or controlled by the Provincial, Federal or Local Government or, in which any of such Government had a controlling share or interest"---Meaning---For the purposes of attracting disqualification under S. 27(2)(e) of the Punjab Local Government Act, 2013, it was to be seen that the candidate or the elected member of the local body was in the service of "statutory body" or "body", which was owned and controlled by or that controlling share or interest therein was of Federal, Provincial or Local Government---Service of a "statutory body" or "body" of the kind mentioned in S. 27(2)(e) was undoubtedly "public service" within the contemplation of S. 27(2)(g), (h) and (i) of the Punjab Local Government Act, 2013.

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

----S. 2(a)---Service Tribunals Act (LXX of 1973), S. 2(a)---Punjab Local Government Act (XVIII of 2013), S. 27(2)(e)---Local Government elections---Disqualifications for candidates---Person in service of any 'statutory body' or a 'body' which was owned or controlled by the Provincial, Federal or Local Government or, in which any of such Government had a controlling share or interest---Scope---Person in the service of "statutory body" or "body" of the kind mentioned in S. 27(2)(e) performed "public service" and despite falling within the class of employees in service of Pakistan was not a "civil servant" within the purview of S. 2(a) of Civil Servants Act, 1973 and or S. 2(a) of the Services Tribunals Act, 1973.

Muhammad Nasir Turyali v. Ghulam Sarwar Khan PLD 2005 SC 570 ref.

(c) Punjab Local Government Act (XVIII of 2013)---

----Ss. 27(2)(e) & 27(2)(g)---Local Government elections---Seat of General Councillor--- Disqualifications for candidates--- Contract employee of Utility Stores Corporation of Pakistan ['Corporation']---Misconduct---Dismissal from public service---'Corporation' was body corporate, which was owned and controlled by the Federal Government---Candidate in question was dismissed from service of the Corporation on 26-12-2013---Nomination papers were filed by candidate on 2.12.15, therefore on the date of filing nomination papers disqualification period of five years as mentioned under S. 27(2)(g) of the Punjab Local Government Act, 2013 had not lapsed from the date of his dismissal from public service--- Nomination papers filed by candidate in question were rejected and consequently his election was declared to be void ab-initio.

Candidate in question was employed in the Utility Stores Corporation of Pakistan ['Corporation'] as a Record Keeper (BS-9) on contract basis for a period of one year. Candidate was found guilty of "misconduct" (absent from duty, disobedience, wilful negligence, inefficiency, dereliction in duty) and the competent authority inflicted major penalty of dismissal from service upon him with immediate effect, vide order dated 26.12.2013.

Utility Stores Corporation of Pakistan ['Corporation'] was body corporate, which was owned and controlled by the Federal Government.

Any person, who was under the employment of a statutory body or body as mentioned under section 27(2)(e) of the Punjab Local Government Act, 2013 and who had been removed from "public service" on the ground of misconduct came within the mischief of section 27(2)(g) and was disqualified from being elected or chosen as member of local government unless a period of five years had lapsed from the date of such dismissal. Admittedly candidate in question was dismissed from service of the Corporation on 26.12.2013. He filed nomination papers for the general election of local body on 2.12.15. Thus, on the date of filing nomination papers, candidate was under a legal bar to contest election of Local Government as five years disqualification period had not elapsed from the date of his dismissal dated 26.12.2013 from public service of the Corporation.

Nomination papers filed by the candidate were rejected as he was not eligible to put up his candidature for the office of General Councilor, and consequently his election was declared to be void ab initio.

(d) Words and phrases---

----"Public service"--- Definition.

(e) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(e)---Disqualifications for candidates---Person in service of any 'statutory body' or a 'body' which was owned or controlled by the Provincial, Federal or Local Government or, in which any of such Government had a controlling share or interest---Regular and contractual employees---Disqualification under S. 27(2)(e) of the Punjab Local Government Act, 2013 did not make any distinction between the "regular" or "contractual employee" of the statutory body or the (type of) body mentioned under the said section.

Waqar Hussain Shah v. Returning Officer, Union Council No.31 2002 SCMR 404 ref.

Muhammad Iqbal v. District Returning Officer PLD 2006 Lah. 13 distinguished.

Syed Shabbar Raza Rizvi, Advocate Supreme Court for Petitioner.

Mian Ahmed Mehmood, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.3.

Date of hearing: 25th March, 2016.

2016 S C M R 1134

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

BASHIR AHMED SHAUK---Appellant

Versus

MUNICIPAL CORPORATION FAISALABAD---Respondent

Civil Appeal No. 248-L of 2009, decided on 10th March, 2016.

(On appeal against the judgment dated 20-3-2009 of the Lahore High Court, Lahore passed in C.R. No. 50 of 2008)

Damages---

----Demolition of house by Local Government---Damages, claim for---Illegal and unauthorized construction of house---House constructed in a housing society was demolished as it was constructed without approval from the Municipal Corporation---Contention of claimant (owner of demolished house) that the master plan of the housing society was approved by the Municipal Corporation, whereafter the construction plan for the house was approved by the housing society itself, which fact was also confirmed by the Vice-President of the society---Validity---Power to approve the housing society and construction plan of houses in the society both vested in the Municipal Corporation---Vice-President of the housing society did not have the authority to approve construction plans---By-laws of the housing society may be the internal regulations for purposes of relationship inter se between members of the society but it was the absolute authority of the Municipal Corporation to pass construction plans for houses, which approval had not been obtained by the claimant in the present case---Resultantly the construction raised by the claimant was illegal and unauthorized---Claimant could not rebut the claim of the Municipal Corporation that it had sent numerous notices to the claimant before demolishing the house---Other unauthorized constructions in the housing society which were made without approval of Municipal Corporation were also demolished, thus a case of mala fide was also not established---Claim of damages had been rightly rejected by court below---Appeal was dismissed accordingly.

Dilawar Mahmood, Senior Advocate Supreme Court for Appellant.

Hasnat Ahmed Khan, Advocate Supreme Court for Respondent.

Date of hearing: 10th March, 2016.

2016 S C M R 1136

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

SALEHA HASSAN---Petitioner

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and others---Respondents

Civil Petition No. 87 of 2016, decided on 7th March, 2016.

(Against the judgment dated 15-12-2015 of the Lahore High Court, Multan Bench passed in FAO No.118/15)

Rules for Competitive Examination (CSS), 2013---

----Rr. 4(ii)(c) & 3---Central Superior Services (CSS) Examination---Eligibility of candidates---Relaxation in upper age limit by 2 years for residents of Azad Kashmir---Candidate in the present case obtained domicile of Azad Kashmir on the strength of her husband's status as an inhabitant of Azad Kashmir---According to R. 3 of Rules for Competitive Examination (CSS), 2013 the cut off date for determining the eligibility of the candidate in terms of age, qualifications, domicile, etc., was 31st December, 2012, whereas the female-candidate in the present case acquired the domicile certificate on 1st December 2014, almost two years after the cut off date---Cause of action at the most accrued to the female-candidate when her domicile certificate was issued on 01-12-2014 and not earlier than that and when a period of about two years had already elapsed after cut-off-date of Competitive Examination, 2013---Even if the female-candidate was granted age relaxation of two years being a state subject, this ended on 31-12-2014---Though the candidate had applied twice for Competitive Examinations after her marriage but she did not apply for grant of age relaxation on any account including that of Azad Kashmir subject---Candidate for the first time applied for age relaxation of two years on 30-5-2015 on account of Azad Kashmir subject when such period had already elapsed---In such circumstances, there was no occasion for grant of age relaxation to the candidate---Even otherwise, the Competitive Examination, 2013 was held and in pursuance thereof, the appointments had already been made, as such, it had become past and closed transaction---Petition was dismissed accordingly.

Muhammad Munir Piracha, Advocate Supreme Court along with Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th March, 2016.

2016 S C M R 1141

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Tariq Parvez, JJ

GOVERNMENT OF PAKISTAN through Military Estate Officer, Abbottabad and another---Appellants

Versus

GHULAM MURTAZA and others---Respondents

Civil Appeal No. 897 of 2013, decided on 17th March, 2016.

(On appeal from the judgment dated 27-5-2013 passed by the Peshawar High Court, Abbottabad Bench in RFA No. 12 of 2007)

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

----S. 23---Compulsory acquisition of land for public purpose---Compensation---Present and future potential of the land---Suit land was acquired for the establishment of Army School of Water Sports---Collector fixed the compensation amount on the basis of one year average rate (of the land in the area) --- Referee Court enhanced the compensation to Rs. 100,000 per kanal with 15% compulsory acquisition charges---Propriety---Suit land was situated on the road side and close to a dam, prime tourists' resort, restaurants and commercial buildings, which were growing at a fast pace---Collector without constituting a Committee to re-assess the land again, and without any just cause and reason had relied on the one year average rate (of the land in the area)---Findings of Referee Court were correct in view of the present and future potential of the suit land---Appeal was dismissed accordingly.

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

----S. 23---Compulsory acquisition of land for a public purpose---Compensation---Practice adopted by Collector (Land Acquisition) in fixing the compensation amount on the basis of one year average rate (of the land in the area)---Propriety---Such practice was not the correct approach---In cases of compulsory acquisition of land for public purposes, the owners of the land were deprived of its utility, therefore, the Collector should not remain stuck to the one year average without taking into consideration the present and future potential of the land acquired.

Abdul Rashid Awan, DAG for Appellants.

Khalid Rehman Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 17th March, 2016.

2016 S C M R 1144

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Qazi Faez Isa and Maqbool Baqar, JJ

NASIR JAVAID and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 178-L of 2009, decided on 15th March, 2016.

(On appeal against the judgment dated 30-4-2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 739 of 2006 and M.R. No. 69-T of 2006)

(a) Criminal trial---

----Circumstantial evidence, reliance upon---Scope---Deduction about the guilt of the accused could well be drawn from the circumstances---Where however the circumstances so reported were tinkered and tampered with, or contrived and conjured up, they could not be accepted without careful and critical analysis---Circumstantial evidence could form basis of conviction if it was incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

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

----Ss. 302(b), 364-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Kidnapping and murder of a four year old child---Re-appraisal of evidence---Death sentence, setting aside of---Motive remained unproved---When, where and in whose presence the accused persons exchanged threatening words with the complainant prior to the incident remained unproved and unsubstantiated---Witnesses who had allegedly last seen the deceased child on a motorbike in the company of the accused persons remained silent for three days and did not inform anyone of such fact---Such evidence was doubtful and it was not understandable as to why the accused would carry the deceased child so openly on a motorbike and thereby expose their identity---Statement of witness who allegedly saw the accused persons disposing body of deceased child in a bag was not free from doubt and appeared to be unnatural---Alleged extra-judicial confessions of the accused persons neither rang true nor fit in with the surrounding circumstances of the case---Medical evidence did not support the prosecution version---Original report of chemical analysis was also withheld---Evidence of recoveries did not inspire confidence as the witnesses attesting them being closely related to the complainant were highly interested witnesses---Alleged recoveries also appeared to be contrived and conjured up when nothing incriminating came forth, pursuant to the first raid conducted at the house of accused persons soon after the occurrence and then everything incriminating was allegedly found from the same places of the house pursuant to another raid conducted 10/15 days later---Death sentence awarded to accused persons could not be maintained on basis of the evidence in the present case---Appeal was allowed and accused persons were acquitted of all charges.

(c) Criminal trial---

----Extra-judicial confession, reliance upon---Scope---Such confession could be concocted easily therefore, it was always looked at with doubt and suspicion---Extra-judicial confession could be taken as corroborative of the charge if it, in the first instance, rang true and then found support from other evidence of unimpeachable character---If the other evidence lacked such attribute, such confession had to be excluded from consideration.

(d) Criminal trial---

----Recovery evidence, reliance upon---Scope---Recovery evidence at its best could be taken as corroborative rather than evidence of the charge---Such evidence per se did not name or nominate any accused, nor did it prove or point to his guilt; it simply supplemented the other evidence on the record, if it in its own right, inspired confidence.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellant No.1.

Jalees Ahmed Meer, Advocate Supreme Court for Appellant No.2.

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

Date of hearing: 15th March, 2016 (Judgment Reserved)

2016 S C M R 1190

[Supreme Court of Pakistan]

Present Gulzar Ahmed, Dost Muhammad Khan and Qazi Faez Isa, JJ

IRFAN and another---Appellants

Versus

MUHAMMAD YOUSAF and another---Respondents

Criminal Appeal No. 6-P of 2015, decided on 6th April, 2016.

(On appeal from the judgment dated 19.12.2013 passed by the Peshawar High Court, Peshawar in Cr. R. 42-M of 2013)

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

----S. 367(2) & (3)---Penal Code (XLV of 1860), Ss.302(b), 34 & 404---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Conviction and sentence, recording of---Under the provisions of S. 367(2) & (3), Cr.P.C. it was mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted---Under the law it could neither be construed nor was it permissible to hold that the accused was impliedly sentenced under a provision of law---Where a specific sentence for a distinct offence was not awarded, it could not be construed that same was impliedly awarded as the very judgment to that extent became illegal and violative of the mandatory provisions of S. 367(2) & (3), Cr.P.C.

In the present case, Trial Court, upon conviction, awarded death sentence on one count to the accused persons although it was stated in the judgment that the conviction so awarded under section 302(b), P.P.C. shall be read with section 7(a), Anti-Terrorism Act, 1997. High Court, however, while partly allowing the appeal, reduced the sentence to life imprisonment but only under section 302, P.P.C. and nothing was said in the judgment or in the Reference sent by the Trial Court that the death sentence under section 7(a), Anti-Terrorism Act, 1997 was confirmed or not. Similarly, the Supreme Court while dismissing leave petition of the accused persons, did not take notice of such omission, made by the Trial Court and then by the High Court because in the judgment of the Supreme Court too, the sentence of life imprisonment under section 302(b)/34, P.P.C. and the imprisonment of three years with fine under section 404, P.P.C. alone was maintained with further modification.

Under the provisions of section 367(2) and (3), Cr.P.C. it was mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions. Law provided the passing of specific sentence for a distinct offence and if it was not awarded, it could not be construed that same was impliedly awarded as the very judgment to that extent became illegal and violative of the mandatory provisions of section 367(2) & (3), Cr.P.C. In the present case, no separate sentence was awarded to the accused persons under section 7(a), Anti-Terrorism Act, 1997 by the Trial Court or the High Court. Such legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the High Court in the second round of the present case when the accused persons were seeking acquittal on the basis of compromise under section 302(b), P.P.C. alone. It could not be construed nor was it permissible under the law to hold that the accused persons were impliedly sentenced to imprisonment for life under section 7(a), Anti-Terrorism Act, 1997 as well by applying the rule of implication.

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

----Ss. 345, 367(2) & (3)---Penal Code (XLV of 1860), Ss. 302(b), 34 & 404---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Accused charged with both compoundable and non-compoundable offences---Legal error committed by Trial Court in not recording separate conviction and sentence for the non-compoundable offence---High Court also failing to notice such error---Compromise between parties for the compoundable offence---Effect---Conviction and sentence for the non-compoundable offence had to be recorded separately and could not be implied---Matter of conviction and sentence for the non-compoundable offence had become a past and closed transaction---Compromise between the parties for the compoundable offence should not have been rejected in such circumstances.

Trial Court convicted in the present case and sentenced accused persons under sections 302(b), 34 and 404 P.P.C but did not record any specific conviction and sentence under section 7(a) Anti-Terrorism Act, 1997. High Court also failed to notice such legal infirmity. Accused persons sought acquittal on the basis of compromise under section 302(b), P.P.C. alone. Trial Court and High Court rejected the compromise on the basis that accused persons were also charged and convicted under section 7(a) of Anti-Terrorism Act, 1997.

In terms of section 367, Cr.P.C. it was mandatory for the Court to record separate conviction and sentence for each offence. It could neither be construed nor was it permissible to hold that the accused persons were impliedly sentenced under section 7(a) of Anti-Terrorism Act, 1997. Such legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the High Court. Both the offences under sections 302 and 404, P.P.C. were compoundable and when the State/prosecution had not taken any exception to the legal error, so committed by the Trial Court and thereafter by the High Court in the first round of litigation then, at present belated stage of compromise before the Supreme Court, it could not agitate that the necessary modification be made in the conviction and sentences of the accused persons and they be further convicted and sentenced under section 7(a), Anti-Terrorism Act, 1997, as well, because the matter was now past and closed transaction and could not be re-opened. Supreme Court sent the case back to the Trial Court with the direction that the court, after verifying the genuineness of the compromise to its satisfaction shall accept the same and acquit the accused persons on the basis thereof.

Altaf Samad, Advocate Supreme Court for Appellants.

Aslam Ghumman, Advocate Supreme Court for A.G. Khyber Pakhtunkhwa for the State.

Date of hearing: 6th April, 2016.

2016 S C M R 1195

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Mst. NOOR BIBI and another---Appellants

Versus

GHULAM QAMAR and another---Respondents

Civil Appeal No. 2133 of 2006, decided on 17th March, 2016.

(On appeal from the judgment of the Lahore High Court, Lahore dated 24-10-2001 passed in C.R. No.2239 of 2000)

Per Anwar Zaheer Jamali, CJ

(a) Islamic law---

----Inheritance---Shia law---Widow with children---Under the Shia law, a widow with a child from her deceased husband was entitled to a share in both movable and immovable property of her (deceased) husband---Widow with child would be entitled to inherit 1/8 share from the legacy of her deceased husband.

Syed Muhammad Munir v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab Lahore and 7 others PLD 1972 SC 346 distinguished.

Mohammedan Law by Sir D.F. Mulla (17th Edition) and Syid Murtaza Husain v. Musammat Alhan Bibi 1909 IC (Vol.2) 671 ref.

(b) Islamic law---

----Inheritance---Shia law---Childless widow---Under Shia law childless widow was disqualified from claiming share from the estate of her deceased husband, but only to the extent of lands (immoveable property) left behind by her husband---Childless widow took no share in her husband's land, but she was entitled to her one forth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise.

Mohammedan Law by Sir D.F. Mulla (17th Edition) ref.

Per Mian Saqib Nisar, J; agreeing with Anwar Zaheer Jamali, CJ

(c) Islamic law---

----Inheritance---Shia law---Childless widow---Where a widow never gave birth to a child from the propositus, she will not be entitled to inherit from the propositus' immovable property---Childless widow would also encompass those widows who, though had children with the propositus, but did not survive the propositus---Even if a widow has given birth to a child out of her wedlock with the propositus, but such child died prior to the death of the propositus, the widow would not be entitled to inherit the immovable property of the propositus as she was a 'childless widow' under Shia personal law.

Asaf A.A. Fyzee in his book titled Outlines of Muhammadan Law (4th Ed.); Digest of Moohummudan Law (2nd Ed.) (Part Second) by Neil B.E. Baillie; Succession in the Muslim Family (1971) by N.J. Coulson; Muhammad Law (Volume II) by Syed Ameer Ali; Principles of Muhammadan Law (2004) by D.F. Mulla; Umardaraz Ali Khan and others v. Wilayat Ali Khan and another (1896) ILR 19 All 169; Mir Alli Hussain and another v. Sajuda Begum and others (1897) ILR 21 Mad 27; Aga Mahomed Jaffer Bindanim v. Koolsom Beebee and others (1897) 25 Cal. 9; Muzaffar Ali Khan and others v. Parbati and another (1907) 29 All 640; Durga Das and others v. Muhammad Nawab Ali Khan and others (1926) ILR 48 All 557; Syed Ali Zamin and another v. Syed Muhammad Akbar Ali Khan and others 116 IC 525 and Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346 ref.

Iftikhar Hussain Shah, Advocate Supreme Court and Salim Khan Chechi, Advocate Supreme Court for Appellants.

Nemo for Respondents.

Date of hearing: 17th March, 2016.

2016 S C M R 1206

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Tariq Parvez, JJ

KHAN TOTI and others---Petitioners

Versus

GOVERNMENT OF NWFP through Secretary Finance and others---Respondents

Civil Petition No.2167 of 2014, decided on 16th March, 2016.

(On appeal from the judgment dated 22-9-2014 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R. No.1141-P of 2007)

(a) Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S. 3(2)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), Ss. 2(a) & 3(2)---Staff of District judiciary---Moharars, Readers and Examiners---Not "civil servants"---Not amenable to jurisdiction of the Provincial Service Tribunal---Ministerial or menial staff of the District Judiciary could not be made subject to jurisdiction of the Provincial Service Tribunal, holding them civil servants as the same would amount to reverse all the efforts made so far in securing independence and separation of the judiciary from the executive.

(b) Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----Preamble---Constitution of Pakistan, Art. 25---Staff of District judiciary---Moharars, Readers and Examiners---Discrimination---Notification issued by Provincial Government extending financial and other benefits of service to all the employees/civil servants in BPS-5, 6, 7 and 9---Provincial Finance department also extending same financial benefits to Moharars, Readers and Examiners attached to district judiciary---Objection by Accountant General---Validity---Moharars, Readers and Examiners attached to the District Judiciary were holding similar grades/BPS scales like senior and junior clerks serving in the executive department, therefore they were entitled to the same benefit like others--- Objection of the Accountant General in such circumstances was thus of no legal effect as it would be hit by the prohibition (against discrimination) contained in Art. 25 of the Constitution - Appeal was allowed accordingly with the direction that all benefits accrued to the staff of district judiciary shall be returned to them within two months.

Syed Safdar Hussain, Advocate Supreme Court for Petitioners.

Waqar Ahmed Khan, Additional A.-G. Khyber Pakhtunkhwa.

Syed Nayyab Hassan Gardezi, Advocate Supreme Court Standing Counsel for Attorney General for the Federation.

Date of hearing: 16th March, 2016.

2016 S C M R 1215

[Supreme Court of Pakistan]

Present: Mushir Alam and Umar Ata Bandial, JJ

ABDUL RASHEED and another---Petitioners

Versus

ELECTION APPELLATE AUTHORITY and others---Respondents

Civil Petition No. 3488 of 2015, decided on 3rd December, 2015.

(On appeal from the judgment dated 28-10-2015 of the Lahore High Court, Multan Bench, Multan passed in W.P. No. 15901 of 2015)

Punjab Local Governments (Conduct of Elections) Rules, 2013---

----Rr. 12(4) & 14(3)(c)---Punjab Local Government Act (XVIII of 2013), S. 38---Constitution of Pakistan, Art. 199---Local Government elections---Alleged concealment of assets and liabilities by candidate---High Court rejecting nomination papers of candidate in its Constitutional jurisdiction---Propriety---Where the concerned authority under the Punjab Local Government Act, 2013 allowed a candidate to contest the election, the same could not be challenged in writ jurisdiction of the High Court for the reason that such challenge could be thrown in post-election proceedings through an election petition under S. 38 of the Punjab Local Government Act, 2013---Order of High Court rejecting nomination papers of candidate was set aside so as to facilitate him to contest the elections, however Supreme Court observed that the same was without prejudice to the right of the respondents to agitate such controversy, if any, in post-election proceedings.

Darya Khan v. Mehran Khan PLD 1974 Kar. 209 ref.

Malik Javed Akhtar Wains, Advocate Supreme Court for Petitioners.

Syed Iqbal Gillani, Advocate Supreme Court and Zafarullah Asim, R.O. for Respondents Nos.3, 4 and 5.

Date of hearing: 3rd December, 2015.

2016 S C M R 1217

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Qazi Faez Isa, JJ

IRSALAN ZOHAIB---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 219 of 2015, decided on 11th May, 2015.

(Against the order dated 2-4-2015 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No. 545-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 392, 411 & 109---Qatl-i-amd, robbery, dishonestly receiving stolen property, abetment---Bail, grant of---Further inquiry---Night occurrence---Case based on a witness overhearing conversation between accused and co-accused at a hotel regarding the occurrence---Name of accused connected with the offence about six days after the occurrence through statement made by said witness---Two eye-witnesses attributing fatal firearm injury to co-accused and not accused---Cash, weapon and motorcycle recovered from accused not connected with the occurrence---Accused not having credentials of a thief, robber or dacoit---Investigation of case completed and challan already submitted before Trial Court---Case was one of further inquiry into guilt of accused---Accused was admitted to bail in circumstances.

Khalid Ibn-i-Aziz, Advocate Supreme Court for Petitioner.

Complainant in person.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Ayaz, I.O. for the State.

Date of hearing: 11th May, 2015.

2016 S C M R 1220

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Faisal Arab, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED---Appellant

Versus

EMPLOYEES OLD AGE BENEFIT INSTITUTION and another---Respondents

Civil Appeal No. 908 of 2012, decided on 25th March, 2016.

(On appeal against the judgment dated 17-5-2012 passed by the Islamabad High Court, Islamabad in Writ Petition No.622 of 2007)

(a) Employees' Old-Age Benefits Act (XIV of 1976)---

----Ss. 9, 9-B & 47(f)---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S. 34---Pakistan Telecommunication Company Limited ("Company")---Not a statutory body but a distinct and separate entity limited by shares formed under the Companies Ordinance, 1984---'Company' was liable to pay contributions under the provisions of Employees' Old-Age Benefits Act, 1976 from the date of its incorporation.

Pakistan Telecommunication Company Limited ("Company") was incorporated as a limited company under the provisions of the Companies Ordinance, 1984. It did not come into existence under the Pakistan Telecommunication (Re-organization) Act, 1996, which Act only provided that a company limited by shares shall be incorporated under the provisions of the Companies Ordinance, 1984.

By virtue of section 47(f) of the Employees' Old-Age Benefits Act, 1976, the said Act did not apply to persons in service of a 'statutory body'. For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute. Such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute. In the case of Pakistan Telecommunication Company Limited ("Company"), it came into existence under the provisions of the Companies Ordinance, 1984, an already existing statute, and not under Pakistan Telecommunication (Re-Organization) Act, 1996. As the 'Company' was incorporated under an existing law, it could not be regarded as a 'statutory body'. From the date of incorporation of the 'Company' none of its employees could be regarded as employees of a statutory body so as to enjoy the benefit of the provisions of section 47(f) of Employees' Old-Age Benefits Act, 1976.

Since Pakistan Telecommunication Company Limited could not be regarded as a statutory body, it was liable to pay contributions under the provisions of Employees' Old-Age Benefits Act, 1976 from the date of its in-corporation.

(b) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 47(f)---Employees' Old-Age Benefits Act, 1976 not to apply to persons in service of a 'statutory body'--- 'Statutory body'--- Scope---For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute---Such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute---Where the legislature had not brought into existence an entity through a special law but the same had been incorporated under some existing statute then such entity could not be assigned the status of a statutory body.

Hamid Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Tariq Bilal, Advocate Supreme Court for Respondents.

Date of hearing: 1st March, 2016.

2016 S C M R 1225

[Supreme Court of Pakistan]

Present Mushir Alam and Dost Muhammad Khan, JJ

PHUL PEER SHAH---Appellant

Versus

HAFEEZ FATIMA---Respondent

Civil Appeal No. 774 of 2013, decided on 19th April, 2016.

(On appeal from the judgment dated 16-5-2013 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No.100 of 2005)

(a) Pardanasheen lady---

----Property transaction undertaken by an old, illiterate, village 'Pardanasheen' lady---Onus to prove---Mandatory conditions to be fulfilled so as to prove such a transaction to be legitimate, stated.

In case of a (property) transaction with an old, illiterate/rustic village 'Pardanasheen' lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as prove the transaction as legitimate and dispel all suspicions and doubts surrounding it;

(i) that the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;

(ii) that she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction;

(iii) that witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her;

(iv) that the sale consideration was duly paid and received by the lady in the same manner; and

(v) that the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/receipt, as the case may be.

(b) Pardanasheen lady---

----Property transaction undertaken by an old, illiterate, village 'Pardanasheen' lady---Fraud and deception---Connivance of defendant and revenue staff in destroying the original mutation---Nature of the transaction, payment of sale consideration, presence of the witnesses attesting the same not proved through evidence---Attesting witnesses giving conflicting statements---Pardanasheen lady not given independent advice---Impugned transaction was set aside in circumstances with the observation that principle of caution in protecting the legitimate rights of the illiterate/rustic village 'Pardanasheen'lady, must be applied vigorously and rigidly.

Plaintiff, who was an illiterate, village 'Pardanasheen' lady, also had an aged mother, who was dependent upon her and was having no male blood relative to give proper advice, protecting her rights at the time of the disputed transaction thus, she was vulnerable and fully exposed to any fraud. Defendant was a distant collateral who exploiting the ignorance of a defenceless lady, conveniently deceived her and self-assumed that she would not be able to bring a law suit against him. Defendant managed to get things done in quick succession and then with his connivance the revenue staff destroyed the original mutation because the plaintiff-lady has clearly denied that she had appeared before the Revenue Officer at the time of attestation of the questioned mutation. Impugned transaction was the only transaction in the 'Patwar Circle' of which the original mutation was intriguingly missing as no evidence had been brought on record that any other mutation relating to any other transaction in the Circle also went missing. Only inference in such circumstances would be that it was deliberately destroyed so as to cause disappearance of evidence because in case the original mutation was brought on record then, the question of identification of thumb impression through fingerprints expert would have become essential and in that case no one else but the defendant would have been the loser.

Original mutation containing the final order of attestation of the mutation by the Circle Revenue Officer was never deposited in the central office of 'Qanoongo' nor it was received because there was no entry made in the register, maintained for that purpose in the Central Office of the District or Saddar 'Qanoon-go'. Only 'Partt Patwar' was produced at the trial containing no details about the nature of the transaction, payment of sale consideration, presence of the witnesses attesting the same and also no order of the Revenue Officer of the Circle, attesting the mutation was present on the same.

Without the permission of the Trial Court, secondary evidence i.e. "Partt Patwar" of the mutation was brought on record, which was inadmissible and of no help whatsoever to prove the transaction.

Even the witnesses produced, had given conflicting statements about the place and time of the transaction. It was not clarified as to who was the scribe of the receipt obtained from the plaintiff-lady.

Impugned transaction with the plaintiff-lady could be safely held to be the result of fraud and deception, practiced upon her to exploit her defenceless and illiterate status.

Supreme Court observed that "in our male dominated society where the female legal heirs, like sisters and mothers, were consistently deprived even of their 'sharai' shares in inheritance matters, the principle of caution in protecting the legitimate rights of the illiterate/rustic village lady, must be applied vigorously and rigidly."

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(c) Pardanasheen lady---

----Property transaction undertaken by an old, illiterate, village 'Pardanasheen' lady--- Onus of proof---Transaction denied by the lady---Burden would shift to the beneficiary of the transaction to prove the same.

In the present case, the Trial Court committed illegality by placing the onus of proof on the old, illiterate Pardanasheen lady with regard to the transaction because after clear denial by her and because the defendant was the beneficiary of the mutation/transaction, heavy burden of proof was on him and the same should have been placed on him instead of the lady. In a transaction of such nature a mere denial by the old, illiterate 'Pardanasheen' lady would shift the burden to the male beneficiary of the transaction. By framing of wrong issues and shifting onus of proof to the lady, the Trial Court and the First Appellate Court committed illegalities. Impugned transaction was set-aside accordingly.

(d) Mutation---

----Mutation by itself was not sufficient to prove the transaction but it must be independently proved through cogent, reliable and convincing evidence.

Syed Qalb-e-Hassan Shah Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Barrister Imran Hassan Ali Ch., Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record for Respondent.

Date of hearing: 19th April, 2016.

2016 S C M R 1233

[Supreme Court of Pakistan]

Present Asif Saeed Khan Khosa, Qazi Faez Isa and Tariq Pervez, JJ

MUHAMMAD AMEER and another---Appellants

Versus

RIYAT KHAN and others---Respondents

Criminal Appeals Nos. 235 and 236 of 2010, decided on 26th April, 2016.

(Against the judgment dated 8-4-2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.158 of 2006 and Murder Reference No. 486 of 2006)

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Reappraisal of evidence---Dying declaration of deceased, reliance on---Doubts with regard to the recording and truthfulness of the dying declaration---FIR lodged two days after the purported dying declaration---Doctor in-charge of deceased not supporting the factum of recording of dying declaration---Contradictory statements as to who brought the deceased to the hospital---Dying declaration could not be relied upon in such circumstances---Accused was acquitted accordingly.

Deceased purportedly made the dying declaration before the local police in an injured condition in a hospital on 24.03.2004 and this was subsequently made the basis of an FIR two days later, i.e. on 26.03.2004. Question was that if the dying declaration had actually been made by the deceased on 24.03.2004 before the police itself then why an FIR had not been chalked out on the basis of the same during the next two days. Another factor sufficient to raise an eyebrow in the context of the dying declaration was that the doctor, under whose medical care the deceased was when alive, had categorically stated before the trial court that the police had not recorded any statement of the deceased in his presence, and that the deceased had never made any statement before him about the alleged occurrence.

Deceased had categorically stated in the purported dying declaration that he was taken to the hospital in an injured condition by two prosecution witnesses but the doctor had contradicted the deceased by stating that the deceased had been brought to the hospital in an injured condition by a police constable and on that occasion no private person was accompanying the deceased.

Either the deceased in the present case had economized with the truth while making his dying declaration or the dying declaration itself was a fabricated document which had been manufactured at some subsequent stage for the purposes of implication of the present accused and to justify availability of the so-called eye-witnesses. In such peculiar circumstances no reliance could be placed upon the dying declaration.

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Witness furnishing the ocular account related to the deceased and also a chance witness---Availability of said witness near the place of occurrence not established through any independent evidence---Alleged motive for the crime not proved---Memorandum of alleged recovery of the weapon signed by witness at police station instead of the place of recovery---Accused was acquitted in circumstances.

Ocular account was furnished by a witness, who was a first cousin of the deceased and was admittedly a chance witness who ordinarily resided about one kilometer away from the place of occurrence. The stated reason for availability of this witness near the place of occurrence had never been established through any independent evidence at all. Apart from that the said witness had demonstrated an unusual conduct because according to him he had found the deceased in an injured condition, had shifted the deceased to the deceased's house and had then gone to attend a marriage ceremony rather than taking the injured close relative to a hospital or informing the police about the incident. The said purported eye-witness had not received any independent corroboration from the motive or from the alleged recovery of the weapon of offence. No witness had been produced by the prosecution to prove the alleged motive and the memorandum of the alleged recovery of the weapon of offence had admittedly been signed by the recovery witnesses at the police station and not at the place of recovery whereat such memorandum had allegedly been prepared. Accused was acquitted of the charge of murder in such circumstances by extending him benefit of doubt.

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

----Art. 46---Dying declaration, reliance on---Scope---Dying declaration was an exception to the hearsay rule and, thus, the same was to be scrutinized with due care and caution.

Bakhshish Singh alias Bakhshi and others v. Emperor AIR 1925 Lahore 549; Tawaib Khan and another v. The State PLD 1970 SC 13 and Usman Shah and others v. The State 1969 PCr.LJ 317 ref.

Sana Ullah Zahid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (late) for Appellants (in Cr. A. No.235 of 2010).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record (absent) for Appellants (in Cr. A. No.236 of 2010).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record (absent) for Respondent No.1 (in Cr. A. No.235 of 2010).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State (in both cases).

Date of hearing: 26th April, 2016.

2016 S C M R 1238

[Supreme Court of Pakistan]

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

COMMISSIONER OF INCOME TAX, PESHAWAR and others---Appellants

Versus

Messrs PAKISTAN ELECTRIC FITTINGS MANUFACTURING COMPANY LIMITED---Respondent

Civil Appeal No. 761 of 2000, decided on 20th January, 2016.

(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 3-1-2000 passed in ITA No.158 of 1998)

Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 136 & 137---Constitution of Pakistan, Art. 185(3)---Judgment of High Court---Scope---Tax authority impugning judgment of High Court by filing 'petition for leave to appeal' before the Supreme Court instead of an 'appeal'(under S. 137 of the Income Tax Ordinance, 1979)---Maintainability---Contention of tax-payer was that under S. 137 of the Income Tax Ordinance, 1979, an 'appeal' had to be filed before the Supreme Court against the judgment of the High Court delivered under S.136 of the said Ordinance, whereas the tax authority in the present case filed a 'petition for leave' to appeal before the Supreme Court---Contention of tax authority that since the High Court had entertained an appeal against the order of the Tribunal, when only a reference was maintainable, thus the judgment of the High Court could not be treated as having been delivered in a reference filed under S. 136 of the Income Tax Ordinance, 1979; and in such circumstances a petition for leave to appeal was maintainable---Validity---Whether the High Court was possessed with powers or not to entertain the appeal under S. 136 of the Income Tax Ordinance, 1979, the impugned order in the present case was passed under that provision of law and thus appeal under S. 137 of the said Ordinance and not a petition for leave to appeal was maintainable---Even otherwise time limitation for filing the appeal was 30 days while petition for leave to appeal impugning judgment of High Court was filed with a delay of about 2 months---Petition for leave to appeal was thus barred by time even if treated as an appeal.

Akhtar Ali Mehmood, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Abdul Qadir Khan, Advocate Supreme Court for Respondent.

Sohail Mahmood, DAG on Court's Notice.

Date of hearing: 20th January, 2015.

2016 S C M R 1241

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Umar Ata Bandial and Maqbool Baqar, JJ

JAVAID AKBAR---Appellant

Versus

MUHAMMAD AMJAD AND JAMEEL @ JEELA and another---Respondents

Criminal Appeal No. 880 of 2006, decided on 18th February, 2016.

(On appeal against the Judgment dated 3-5-2006 passed by the Lahore High Court, Lahore, in Criminal Appeal No.1744 of 2000 and M. Ref. No. 715 of 2000)

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

----S. 302---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---FIR was lodged with a delay and that too after consultation and deliberations---Both eye-witnesses being closely related to one of the deceased, were inimical and interested witnesses---Said eye-witnesses were residents of areas which were far from the scene of occurrence, and their presence at the spot was also doubtful---Eye-witnesses made certain improvements to their statements during trial on material points, and there were also contradictions between their statements---Another alleged eye-witness of the incident was not produced either during investigation or trial---Investigating Officer made no efforts to record statement of one of the deceased while he was alive and being treated in a hospital---Contradictions were also found between the ocular account furnished by alleged eye-witnesses and medical evidence---Medico Legal Report of one of the deceased was not brought on record and even the doctor was not cited as a witness or produced during trial---Weapons allegedly recovered from accused persons were not sent to Forensic Science Laboratory for comparison with empties allegedly recovered from the spot---High Court had rightly acquitted the accused persons---Appeal against acquittal was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 185---Appeal against acquittal---Reappraisal of evidence by the Supreme Court---Setting aside order of acquittal passed by Court below---Grounds---(Supreme) Court on reappraisal of evidence should not give the conclusion different from the one given by the court below acquitting the accused for the reason that different conclusion could be drawn, provided the conclusion drawn by the court below acquitting the accused was reasonably possible---However, where the court below reached a conclusion (acquitting the accused) which no reasonable person would conceivably reach and was impossible then the Supreme Court would interfere but in exceptional cases on overwhelming proof with a view to avoid grave miscarriage of justice, and further if conclusion of court below was found to be artificial, shocking and ridiculous.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Mian Muhammad Shafique, Advocate Supreme Court for Appellant.

Hasnat Ahmed Khan, Advocate Supreme Court for Respondents.

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

Date of hearing: 18th February, 2016.

2016 S C M R 1246

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MUHAMMAD ZAHID UMAR---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 355-L of 2016, decided on 18th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 24-2-2016 passed in Crl. Misc. No.25221-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 324, 34, 337-A(i), 337-F(i) & 337-D---Attempt to commit qatl-i-amd causing firearm injury---Bail, grant of---Further inquiry---Cross-version FIRs---Incident occurred at the spur of moment after hot words were exchanged between parties in the course of a discussion---Regarding the same incident, a cross version FIR was also registered wherein it had been alleged that complainant side, while armed with deadly weapons entered the house of the accused party, attacked a woman and also caused firearm injuries to another person---Doctor had observed seven injuries on the woman allegedly attacked by the complainant side---Prima facie, both the parties had given their own version qua the manner in which the incident took place---Chances of suppression of real facts by both the parties could not be ruled out---Trial Court had to determine, after elaborate evaluation of the evidence, as to which party was the aggressor and who was aggressed upon---Challan in both the cases/FIRs had already been submitted in the Trial Court---Case of the accused in such circumstances, became one of further inquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Ch. Nawab Ali Mayo, Advocate Supreme Court and Hashim Sabir Raja, Advocate Supreme Court for Petitioner.

Tahir Aslam Qureshi, Advocate Supreme Court for Respondent No.2.

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

Date of hearing: 18th May, 2016.

2016 S C M R 1248

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

MUHAMMAD ASHIQ KHAN---Petitioner

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Petition No. 842-L of 2013, decided on 24th May, 2016.

(On appeal against the Judgment dated 22-4-2013 passed by the Lahore High Court, Multan Bench, Multan, in R.F.A. No.132 of 2007)

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Escalation in price of suit property during pendency of litigation---Whether such escalation should be considered as a factor to deny the plaintiff a decree of specific performance---Rise in the price of immovable property by itself was not a ground for refusal to enforce a lawful agreement to sell---Court should consider as to who was the defaulting party and whether a party was trying to take undue advantage over the other and also the hardship that may be caused to the defendant---Totality of the circumstances was required to be seen in this regard---Principles.

Ordinarily the plaintiff was not to be denied the relief of specific performance only on account of escalation of price during pendency of litigation. As a general rule it could not be held that the plaintiff cannot be allowed to have the entire benefit of escalation of price of the suit property during pendency of litigation. On balancing equities one of the considerations to be kept in view was as to who was the defaulting party and whether a party was trying to take undue advantage over the other and also the hardship that may be caused to the defendant. Totality of the circumstances was required to be seen in this regard.

Nirmala Anand v. Advent Corporation Pvt. Ltd. and others AIR 2002 SC 2290 and P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and another AIR 2007 SC 1256 ref.

Facts of present case showed that the plaintiff who had entered into an agreement to purchase the suit property had proved the agreement and thereafter had established, as a fact, that he had not defaulted in complying with any of his obligations under the said agreement, and that it was the defendant alone who had backed out and breached his obligation under the agreement on account of which the plaintiff immediately filed a suit. On direction of the High Court the plaintiff also deposited in court whole of the balance consideration for purchasing the suit property. Thus, apparently there was no default on the part of plaintiff in making compliance of his obligations under the agreement and as such, he could not be blamed for non-performance of the agreement and thus saddled with liability of escalation in price of the suit property during pendency of litigation.

Mian Allah Nawaz, Senior Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th May, 2016.

2016 S C M R 1254

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Umar Ata Bandial, JJ

GUL HASSAN JATOI and others---Petitioners

Versus

FAQIR MUHAMMAD JATOI and others---Respondents

Civil Petitions Nos.493, 494, 505 to 508, 529 to 533, 601, 906 and 911 to 917 of 2015, decided on 4th November, 2015.

(On appeal against the judgment dated 13-3-2015 passed by the Sindh Service Tribunal, Karachi, in Appeals Nos.130 to 134 of 2014, 2, 237 and 238 of 2015)

(a) Police Act (V of 1861)---

----S. 2---Police Rules, 1934, Chapts. XII & XIX---(Sindh) Police Force---Independent units within the police force---Horizontal appointments---Sindh Police force had three independent units i.e. Executive, Technical District and Prosecution (Legal)---Police personnel appointed in a unit in terms of its recruitment (and training) process could not horizontally travel to any other unit either by way of transfer or otherwise.

(b) Police Act (V of 1861)---

----S. 12---Police Rules, 1934---Inspector General (IG) Police, powers of---Scope---Police Rules, 1934 did not confer upon the Inspector General (IG) Police any powers to alter the terms and conditions of any of the establishment within the Police Force.

(c) Police Rules, 1934---

----Rr. 1.3 & 1.4---Sindh Civil Servants Act (XIV of 1973), Preamble---Non-uniformed employees in the (Sindh) Police Department---Ministerial staff and/or staff of I.T. Department---Such employees were recruited and regulated by the Sindh Civil Servants Act, 1973 and the Rules framed thereunder.

(d) Police Rules, 1934---

----R. 1.5 & Chapt. XII---Police personnel in the 'Executive unit' of the police force---Transfer from one establishment to another within the Executive unit---Permissibility---Entry point of all the police personnel in Executive unit was common; they had common recruitment process, police training and practical training as prescribed under the Police Rules, 1934 and once their training after appointment was completed, they were transferred to the different establishments under the said Rules---Posting and transfer to an establishment of a member of police force was permissible under R. 1.5 of the Police Rules, 1934 and it would not change the 'cadre' of a police personnel---Rule 1.5 of the Police Rules, 1934 allowed the police personnel to progress vertically by the rules prescribed and they could be transferred to any of the establishment---No restriction was placed on a police official for his transfer from one establishment to another.

(e) Police Act (V of 1861)---

----S. 2---Police Rules, 1934, R. 1.4---Different establishments created under R. 1.4 of Police Rules, 1934---Cadres, classification of---Overall scheme of Police Act, 1861 and the Police Rules 1934 envisaged the police forces as one indivisible body possessing various establishments performing the assigned functions such as District Police, Police Training Center, Crime Branch, Special Branch, Reserve Police and so on---Each of these establishments were in fact integral parts of the police force, and under no rules of construction they could be construed as separate or independent cadres.

(f) Police Rules, 1934---

----Chapt. XIII---Police officers serving in different establishments---Common seniority list---Common seniority of police personnel serving in all the establishments should be maintained by District Police, the Range DIG and Central Police Office (C.P.O.) strictly as provided under Chapt. XIII of Police Rules, 1934---Supreme Court directed that the Provincial Government and the competent authority under the Police Rules, 1934 shall prepare the common seniority list of the police personnel serving in different establishments in terms of Police Rules, 1934--- Appeal was allowed accordingly.

(g) Police Rules, 1934---

----R. 1.4 & Chapts. XII & XIII---In-charge District Police/Range DIG---Barred from making direct or indirect recruitment or promotion.

(h) Police Rules, 1934---

----R. 1.4 & Chapt. XIX---Range DIG, powers of---Scope---Selection of police personnel for training---Being the custodian of the service record etc. of the police personnel, the Range DIG, should make selection for police personnel for police training and practical training, and no other establishment was authorized to make such selection.

(i) Police Rules, 1934---

----Chapts. XIII & XIX---Matters relating to seniority, promotion or trainings of 'Police Inspectors'---Competent authority for such matters was the Inspector General of Police.

(j) Police Rules, 1934---

----Chapt. XII---Officers on probation, confirmation of---Police personnel who had completed their statutory period of probation but were not confirmed for want of notification---Negligence and abuse of power on the part of the competent authorities---Such police officers suffered in terms of delayed promotion or loss of seniority---Supreme Court directed that in future those police personnel who had completed their statutory period of probation, whether it was three years or two years, they shall stand confirmed whether or not a notification to that effect was issued (by the competent authority)---Appeal was allowed accordingly.

(k) Police Rules, 1934---

----Chapt. XIX---Selection of police personnel for police or practical training---Favouritism in selection---Practice of cherry picking in case of selection of police personnel for police or practical training despite the fact that they had completed their required period to be eligible for such trainings, amounted to denying them of timely promotion for the next scale---Supreme Court directed that in future, competent authority shall ensure that the police personnel who had completed their required period to be eligible for trainings shall be forthwith sent for the training; and in case such police officials were bypassed for such trainings on account of default by the department, or to extend a favour to the junior, or negligence by the authority concerned, their inter se seniority and the accompanying financial entitlements shall not be effected on account of their late joining or completion of training---Appeal was allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court, Zulfiqar Khalid Maluka, Advocate Supreme Court, M. Munir Peracha, Advocate Supreme Court, Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. Nos. 493, 494, 505-506, 906 and 911-917 of 2015).

M.M. Aqil Awan, Advocate Supreme Court for Respondents Nos.1 - 4 (in C.P. No. 494 of 2015).

M.M. Aqil Awan, Advocate Supreme Court for Respondents Nos.1 - 22 (in C.P. No. 506 of 2015).

Abdul Fateh Malik, A.G. Sindh, Adnan Karim, Additional A.G. Sindh, Ghulam Ali Barhman, Additional Secy. (Services), Dr. Amin Yousafzai, DIG, Naeem Ahmed Shaikh, AIG (Establishment), Dr. Mazhar Ali Shah, AIG (Legal) and Aman Ullah Zardai, Focal Person, HD for the Government of Sindh.

Nemo for other Respondents (in all cases).

Dates of hearing: 29th October, 3rd and 4th November, 2015.

2016 S C M R 1282

[Supreme Court of Pakistan]

Present: Mushir Alam and Manzoor Ahmad Malik, JJ

WASEEM ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 81 of 2016, decided on 15th March, 2016.

(On appeal against the judgment dated 29-1-2016 passed by Peshawar High Court, Peshawar in B.A. No. 158-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 462-C---Tampering with auxiliary or distribution pipelines of gas---Bail, grant of---Further inquiry---Lack of evidence---Investigating Officer had stated that no evidence so far had been collected in connection with the premises from where alleged extraction of the gas was being carried out---Guilt of the accused in such circumstances required further inquiry---Accused was granted bail accordingly.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Sajid Ilyas Bhatti, DAG and Asfandyar, I.O. for the State.

Date of hearing: 15th March, 2016.

2016 S C M R 1283

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

NASIR ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.306-L of 2016, decided on 23rd May, 2016.

(Against the order of the Lahore High Court, Lahore dated 17-2-2016 passed in Crl. Misc. No.1 of 2015 in Crl. Appeal No.3913 of 2015)

Criminal Procedure Code (V of 1898)---

----S. 426--- Penal Code (XLV of 1860), Ss. 302(b), 337-A(i) & 337-F(i)--- Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah---Suspension of sentence---Delay in disposal of appeal---As per the allegations contained in the FIR, no injury on the person of deceased had been attributed to the present accused and the only allegation against him was of giving butt blows of Kalashnikov on the head of injured prosecution witness---In view of the postmortem report of the deceased, it was yet to be seen by the Appellate (High) Court, whether the Trial Court was justified in convicting the accused under S. 302(b), P.P.C.---Appeal filed by the accused before the High Court against his conviction/sentence was pending and the final adjudication of his appeal was still not in sight---Sentence of life imprisonment awarded to accused by Trial Court was suspended in circumstances.

Ch. Abdul Rashid, Advocate Supreme Court for Petitioner.

Naseer ud Din Nayyar, Advocate Supreme Court for Respondent No.2.

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

Date of hearing: 23rd May, 2016.

2016 S C M R 1286

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

GHULAM MUHAMMAD---Petitioner

Versus

RIZWANA YASMEEN and others---Respondents

Civil Petition No. 2550-L of 2015, decided on 18th May, 2016.

(On appeal from the judgment/order dated 28-10-2015 passed by the Lahore High Court, Lahore in Review Petition No.105 of 2015)

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Suit for recovery of dowry articles---Jurisdiction of High Court to increase the quantum/value of financial award (with regard to dowry articles) was not barred by any law.

Saiful Haq Ziay, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th May, 2016.

2016 S C M R 1287

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

Mst. TANVEER BIBI---Petitioner

Versus

SHO POLICE STATION MANDI BAHAUDDIN and others---Respondents

Crl. Petition No. 549-L of 2016, decided on 26th May, 2016.

(On appeal against the order dated 12-4-2016 passed by the Lahore High Court, Lahore in Crl. Misc. No. 690-H of 2016)

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Recovery and custody of minor children---Mother of minors alleged that their father was working abroad, and in his absence her in-laws turned her out of the house and also snatched the minors---Minors looked happy and content when they met their mother in court---Nothing had been stated by the in-laws as to why the mother had to leave the house---Minors were of tender age and in the absence of their father, who had gone abroad, the mother was legally entitled to their custody, who was living with her father and brother---Keeping in view the welfare and best interest of the minors their custody was delivered to their mother.

Mian Muhammad Arif, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record (Absent) for Petitioner.

Malik Amjad Parvez, Senior Advocate Supreme Court along with minors for Respondents Nos.2 - 3.

Date of hearing: 26th May, 2016.

2016 S C M R 1288

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

DCO/CHAIRMAN DISTRICT RECRUITMENT COMMITTEE, KHANEWAL and others---Appellants/Petitioners

Versus

KISHWAR SULTANA and others---Respondents

Civil Appeals Nos.843 to 863, 969 to 970 of 2012, Civil Appeals Nos.263-L to 265-L of 2013, 984, 127-P, 129-P to 134-P, 136-P to 141-P, 143-P to 148-P of 2014, Civil Petitions Nos.1353-L of 2012, 3474 of 2015, C.M.As. Nos.1378 and 6497 of 2014, decided on 28th April, 2016.

(On appeal against the judgments dated 23-4-2012, 2-4-2014, 29-5-2012, 12-6-2012, 15-5-2012, 25-4-2013, 30-5-2013, 11-9-2013, 16-9-2013, 27-6-2013, 14-5-2014, 10-6-2014, 15-5-2014, 3-6-2014 and 23-9-2015 of the Lahore High Court, Lahore, Lahore High Court, Rawalpindi bench, Peshawar High Court, Peshawar and High Court of Balochistan Quetta in W.Ps. Nos. 3002, 3519 of 2010, 256 of 2011, I.C.A. 87 of 2010, W.P. 4208/10, 5468/10, I.C.As. 232/11, 258/10, W.Ps. 1229/09, 23067/09, 2130/10, 15724/10, 3751/10, 3752/10, 21755/10, 23465/10, I.C.As. 87/2010, 248/10, 249/10, 257/10, W.Ps.9878/10, 15813/10, 15918/10, 16844/10, 15638/11, I.C.As.233/11, 234/11, W.Ps. 4146/10, 3173-P/12, 3172-P/12, 3174-P/12, 3239-P/12, 3240-P/12, 1297-P/12, 3032-P/12, 3283-P/13, 3321-P/12, 3362-P/12, 3378-P/12, 122-P/13, 1279-P/12, 1499-P/12, 1349-P/14, 1746-P/14, 207-M-P/14, 1393/14 and C.P. 811/2015)

National Training Ordinance (IX of 1980)---

----S. 4---Rules of Business of Skill Development Council, 2013, Rr. 6 & 7---Skill Development Council ("Council")---Diplomas or certificates awarded by the Council in the fields of art, craft, education or physical education---Legality---Said fields were beyond the domain of the Council, and thus it could not launch any programmes in respect of such fields or award diplomas or certificates---Appointment made on the basis of such certificate or diploma in different educational institutions were liable to be annulled, however the Supreme Court directed that such appointees could continue their jobs provided they met certain conditions.

Skill Development Council focused on labour, market, information and launched technical education and vocational training in any physical and professional skill, trade, calling or occupation so that the people who could not acquire higher or specialized education may get opportunities of employment, according to the needs and requirements of the market. However art, craft, education and physical education were well beyond the domain of the Council and capacity of its faculty. Council thus could not launch programmes in any of these fields. National Training Board and the Council travelled beyond what they were established for by launching programmes falling exclusively in the domain of art, craft, education or physical education.

Appointments were made on the basis of such diplomas and certificates in educational institutions without caring to know that the Council did not have the power and competence to launch such programmes, courses and curriculums and issue certificates and diplomas in such behalf.

Supreme Court directed that present appointees could continue their jobs, if they besides the certificates or diplomas, issued by the Council, possessed the requisite or equivalent qualifications or if they had improved their qualifications thereafter; that those appointees who could not improve their qualification up till now should improve it within a period of one year.

Mudassar Khalid Abbasi, AAG, Punjab, Waqar Ahmed Khan, Additional A.-G., Khyber Pakhtunkhwa, Majeedullah, Legal Representative DE(E&SE), Peshawar and Fazl-e-Khaliq, Legal Representative DEO (Male) Sawabi for Appellants.

Ijaz Anwar, Advocate Supreme Court for Respondents (in C.As.145-P to 147-P and 128-P of 2014).

Molvi Ejaz-ul-Haq, Advocate Supreme Court for Respondents (in C.As. 843, 844, 850, 854, 969, 856 and 859 of 2012).

Syed Wasat-ul-Hassan Shah, Advocate Supreme Court for Respondents (in C.A. 843 of 2012).

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.M.As. 1490 and 6497 of 2014).

M. Siddique Khan Baloch, Advocate Supreme Court for Respondents (in C.M.As. 2366 - 2367 of 2016).

Rehmanullah, Farooq Ahmed, Musharaf Shah, M. Ishaq and Zia-ul-Haq in person (in C.A. 145-P of 2014).

Sohail Ahmed, DAG on Court's Notice.

Date of hearing: 8th April, 2016 (Judgment Reserved)

2016 S C M R 1299

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Sardar Tariq Masood, JJ

NEMAT ULLAH and others---Appellants

Versus

CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT and others---Respondents

Civil Appeal No. 1109 of 2013 and Civil Appeals Nos. 1424 to 1428 of 2014, decided on 14th April, 2016.

(On appeal from the judgment dated 17-6-2013 and 20-6-2013 passed by the Peshawar High Court in W.P. No. 1392-P, 929, 2729, 3218, 3298, 910, 2062, 2383, 2384, 3111, 2475/13 and W.P. 1651-P, 1652-P, 1653, 1739, 1753, 1703, 1890, 1832, 1030, 1895, 1868, 3298, 766, 1445, 1484, 150, 680, 1029, 1031, 424, 587, 243, 1751, 1569, 1577, 1702, 1241, 1486, 1493 and 1447 of 2014)

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

----S. 8(3)---Workers' Welfare Fund (Employees Service) Rules, 1997---Constitution of Pakistan, Art. 199---Employees of Khyber Pakhtunkhwa Workers Welfare Board ("Employees")---Statutory rules of service---Workers' Welfare Fund (Employees Service) Rules, 1997 were applicable with full statutory force to the service of the employees of the Workers' Welfare Board of the Province of Khyber Pakhtunkhwa---Moreover after the Eighteenth Amendment to the Constitution, said Rules enacted by the Federal Government were exclusively within the domain of the Provincial Government/Provincial Workers' Welfare Board---Employees could file a Constitutional petition before the High Court if there was any invasion on their service benefits and rights by the authorities.

Workers' Welfare Fund (Employees Service) Rules, 1997 enacted by the Federal Government were adopted and made applicable to the Province of Khyber Pakhtunkhwa with clear directions and express approval of the Federal Government. For all intents and purposes said Rules had become applicable with full statutory force to the service and terms and conditions of service etc. of the employees of the Workers Welfare Board of the Province of Khyber Pakhtunkhwa.

Before the Eighteenth Amendment to the Constitution, Ministry of Labour was within the domain of the Federal Government and once under its approval and direction the Workers Welfare Board has adopted the Workers' Welfare Fund (Employees Service) Rules, 1997, regulating the terms and conditions of service of its employees. After the Eighteenth Amendment, said Rules were exclusively within the domain of the Provincial Government/Workers' Welfare Board and unless the same was amended, repealed, modified or re-enacted under the changed Constitutional scenario, the same had a binding statutory force and the services of the employees of the Workers' Welfare Board of the Province of Khyber Pakhtunkhwa, were squarely and undoubtedly regulated by the said Rules. Till date said Rules had neither been repealed nor amended in any manner by the Provincial Government or for that matter by the Provincial Assembly of the Province.

Services of the employees of Khyber Pakhtunkhwa Workers' Welfare Board were fully protected by the statutory rules, and any invasion on their service benefits and rights by the authorities entitled them to approach the High Court through a Constitutional petition.

(b) Employer and employee---

----Permanent post having statutory rules---Probationary/contractual period--- Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post---Such practice was deprecated by the Supreme Court.

(c) Employer and employee---

----Sanctioned post having statutory rules---Such post could not be kept vacant unless abolished by the competent authority.

(d) Constitution of Pakistan---

----Art. 224(1A)---Caretaker Government/Cabinet, functions of---Scope--- Except for extraordinary circumstances, the Caretaker Government/Cabinet had to confine itself to running day to day administration of the State and to take decisions, required for orderly running of the affairs of the State but the decisions, having far reaching effects should only be taken by the elected government, having the mandate to perform extraordinary functions for the welfare of the people, for which purpose it was being chosen.

Mazullah Barkandi, Advocate Supreme Court for Appellants (in C.As. 1109 to 1111 of 2013).

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.As. 1424 to 1428 of 2014).

Syed Arshad Ali Shah, Advocate Supreme Court for Respondents.

Date of hearing: 14th April, 2016.

2016 S C M R 1311

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

SAJJAD HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 471-L of 2016, decided on 25th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 21-3-2006 passed in Crl. Misc. No.1132-CB of 2011)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 334, 354 148 & 149---Biting off victim's ear---Bail, grant of---Further inquiry---Co-accused, who had been assigned specific roles of injuring the complainant with, different weapons, had already been enlarged on bail---Role assigned to the accused , in the FIR was of biting the ear of the complainant---Accused was not shown to be armed with any weapon nor he used any weapon during the occurrence---Case of the accused in such circumstances, became one of further inquiry falling with the purview of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Ch. Humayoun Rasheed, Advocate Supreme Court for Petitioner.

Complainant in person.

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

Date of hearing: 25th May, 2016.

2016 S C M R 1312

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

SULTAN MAHMOOD HINJRA---Appellant

Versus

Malik GHULAM MUSTAFA KHAR and others---Respondents

Civil Appeal No. 1002 of 2014, decided on 20th April, 2016.

(On appeal against the judgment dated 18-7-2014 passed by the Election Tribunal Bahawalpur and D.G. Khan Divisions, Bahawalpur in E.P. No. 13 of 2013)

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

----S. 55(3)---Civil Procedure Code (V of 1908), O. VI, R. 15---High Courts (Lahore) Rules and Orders, Vol. IV, Chapt. 12, Rr. 11, 12, 14, 15 & 16---Election petition, verification of---Verification by affidavit, pre-requisites for---Election petition had to be verified in the manner prescribed under S. 55(3) of the Representation of the People Act, 1976---Petitioner, in the present case, submitted an affidavit purportedly to verify the election petition---Said affidavit contained the entire contents of the election petition---Affidavit in question did not fulfil all the pre-requites/criteria for a valid affidavit as laid down in the case of Lt. Col. (R) Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585)---Election petition in the present case had not been duly verified in accordance with law and even the affidavit annexed thereto could not be considered as verification of the petition as the affidavit failed to meet the criteria laid down by the Supreme Court, therefore, the election petition merited outright dismissal by the Election Tribunal.

Verification of an election petition in the manner prescribed under section 55(3) of the Representation of the People Act, 1976 was a mandatory requirement and that too in accordance with the provisions of Order VI, Rule 15, C.P.C.

Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 and Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 ref.

Record of the present case showed that the petitioner while filing his election petition did not comply with the mandatory requirements with regard to the verification of the election petition and to cure such defect subsequently submitted an affidavit in this regard, wherein the entire contents of his election petition were reproduced.

When the affidavit was examined in the light of the pre-requisites for a valid affidavit laid down in the case of Lt. Col. (R) Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585), it transpired that certain essential requirements were missing. Firstly, it had not been mentioned whether the petitioner was administered oath by the Oath Commissioner before the attestation was made. Secondly, it had not been specified whether the petitioner was duly identified before the Oath Commissioner. In this regard, it had simply been stated at the foot of the affidavit that the petitioner was present before the Oath Commissioner in person, however, the details of the person identifying the petitioner had not been mentioned whereas according to pre-requisites in Lt. Col. (R) Ghazanfar Abbas Shah case (2015 SCMR 1585), the Oath Commissioner was bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate had to be appended. Furthermore, it was also not clear from the affidavit that the petitioner was identified with reference to his Identity card and in this regard, no Identity card number was given, as such the identification did not seem to have been made. Further the affidavit in question did not make any reference to the numbered paragraphs contained therein which the petitioner verified of his own knowledge and what he verified upon information received and believed to be true. Moreover, the affidavit in question also did not make any reference to the verification of the annexures appended along with the petition, which although had been mentioned in the said affidavit.

Lt. Col. (R) Ghazanfar Abbas Shah v. Khalid Mehmood Sargana 2015 SCMR 1585 ref.

Election petition, in the present case, had not been duly verified in accordance with law and even the affidavit annexed thereto could also not be considered to be proper verification of the petition as the affidavit failed to meet the criteria mentioned in the Lt. Col. (R) Ghazanfar Abbas Shah case (2015 SCMR 1585). Election petition merited outright dismissal by the Election Tribunal in such circumstances.

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

----S. 52---Election petition---Objection with regard to maintainability of an election petition for non-compliance of a mandatory provision---Election Tribunal should decide such an objection first because if such objection sustained then the Tribunal was left with no option but to dismiss the election petition.

Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 ref.

Muhammad Shahzad Shoukat, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Wasi Zafar, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

Sardar Muhammad Aslam, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5.

Date of hearing: 20th April, 2016.

2016 S C M R 1325

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Faisal Arab, JJ

SOBA KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.634 of 2015, decided on 4th March, 2016.

(On appeal from the judgment dated 8-7-2015 passed by the Lahore High Court, Multan Bench in Crl. A. No.8 of 2015)

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

----Ss. 173 & 426---Suspension of sentence---Police report/opinion, relevance of---Police opinion, even if conclusive in nature, was not binding on the Court and it may disagree with the same but after recording cogent reasons.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302 & 149---Qatl-i-amd, unlawful assembly---Suspension of sentence and grant of bail---Accused and co-accused charged similarly and attributed the same role in the crime---Conviction and sentence of the accused was awarded by relying on evidence, on the basis of which the co-accused persons, attributed similar role, had been acquitted---Accused was convicted alone because the injury assigned to him was found to be one of the fatal injuries in the autopsy report, ignoring the fact that for said injury three persons had been charged including the accused---Evidence furnished by the prosecution, in the present case, with respect to accused and co-accused persons appeared to be indivisible and in absence of additional corroboration, accused was entitled to the concession of bail---Sentence of accused was suspended in such circumstances and he was granted bail.

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

----Ss. 426 & 497---Provision of S. 426, Cr.P.C. were considered to be pari materia with S. 497, Cr.P.C.

(d) Criminal trial---

----Testimony of witness, reliance upon---Scope---Accused and co-accused charged similarly and attributed the same role in a crime---Testimony of witness disregarded with respect to accused---Such testimony, ordinarily, should not be relied upon with regard to the co-accused, unless it was strongly corroborated by independent cogent and convincing evidence.

Sardar Khurram Latif Khosa, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Asjad Javed Goral, APG, Punjab for the State.

Nemo for the Complainant.

Date of hearing: 4th March, 2016.

2016 S C M R 1332

[Supreme Court of Pakistan]

Present Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

MUHAMMAD ARIF MUHAMMAD HASSANI---Appellant

Versus

AMANULLAH and others---Respondents

Civil Appeal No. 1033 of 2014, decided on 28th April, 2016.

(On appeal against the judgment dated 20-6-2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 28 of 2013)

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

----S. 70(b)---Ground for declaring election as a whole void---Allegation of corrupt and illegal practices---'Voting pattern' and 'voter turnout' in disputed and undisputed polling stations not phenomenally different---Principle laid down in the case of Khalid Hussain Magsi v. Mir Abdul Rahim Rind (2016 SCMR 900) would not apply in such circumstances to nullify the entire election result.

In the present case, there were 21899 registered votes in the disputed 25 polling stations and a total of 11570 votes were cast in these polling stations. The turnout at 25 disputed polling stations was 53% as against the turnout of 55% on the rest of the undisputed 48 polling stations. Thus it was apparent that on both the sets of polling stations no phenomenal difference in the polling pattern or the voters' turnout was noticeable.

If the voting pattern and the turnout of voters, on 25 disputed polling stations was compared with the voting pattern and the turnout on rest of the 48 polling stations, nothing phenomenal was noticeable to hold prevalence of corrupt practices so as to nullify the entire election result. Appeal was dismissed accordingly.

Khalid Hussain Magsi v. Mir Abdul Rahim Rind 2016 SCMR 900 distinguished.

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

----S. 70(b)---Ground for declaring election as a whole void---Votes from disputed polling stations sent to National Database and Registration Authority (NADRA) for counterfoil verification report---Report showing unauthenticated / invalid / duplicate / bogus votes---Such votes should not be deducted from the tally of returned candidate's vote count as a principle without any substantial evidence available on record.

Deducting disputed votes mentioned in NADRA's counterfoil verification report from the tally of the votes cast in favour of returned candidate would mean laying down a principle that all disputed votes on a certain set of polling stations should be deducted from the vote-count of such candidate who had secured the highest number of votes in such polling stations, in absence of the evidence as to which of the contesting party was involved in corrupt practices. One could not rule out the possibility that a candidate may still loose though he may have himself indulged in rigging practices. Without any substantial material coming on record it should not be assumed that the winning candidate had indulged in rigging. Winning candidate may also come up with his own list of selected polling stations of the constituency where the runner-up candidate (or election petitioner) had secured the highest number of votes in order to seek verification and then get all the disputed votes, in case such were pointed out by NADRA, deducted from the tally of votes bagged by the runner-up candidate (or election petitioner).

NADRA's verification report, in the present case, relating to election material of only 25 polling stations could not be made basis for nullifying the entire election result of the constituency. There had to be some convincing material on record to reach the conclusion that the election as a whole needed to be declared void. Appeal was dismissed accordingly.

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

----S. 70(b)---Ground for declaring election as a whole void---Invalid votes---Counterfoil verification report prepared by National Database and Registration Authority (NADRA)---Counterfoils having invalid Computerized National Identity Card (CNIC) numbers---NADRA's report, in the present case, stated that 748 used counterfoils had invalid CNIC numbers---Said report described invalid CNIC numbers to mean such counterfoils on which either CNIC numbers did not relate to the voters of the constituency or on which CNIC numbers were missing---NADRA's report did not say that on the 748 counterfoils thumb impressions were missing or that the thumb impressions were not verifiable---Whether thumb impressions on all or some of these 748 counterfoils were found to be correct was not known---If thumb impressions on any of the 748 counterfoils had matched with that of the voters of the constituency then such votes could not be described as invalid votes, irrespective of the fact that they contained incorrect CNIC numbers or CNIC numbers were altogether missing---Reason being that the possibility that the polling staff may have incorrectly written or omitted to write CNIC numbers on these 748 counterfoils could not be ruled out---Returned candidate could not be penalized for such an error or omission---Figure of 748 votes, as contained in NADRA's report, could not be treated as invalid votes that were cast at the behest of returned candidate---Appeal was dismissed accordingly.

Kamran Murtaza, Advocate Supreme Court and Qahir Shah, Advocate-on-Record for Appellant.

Shakeel Ahmed, Senior Advocate Supreme Court and Abdul Sattar, Advocate Supreme Court for Respondent No.1.

Date of hearing: 6th April, 2016.

2016 S C M R 1360

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

JAMIL RAZA @ JEELU---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.418-L of 2016, decided on 23rd May, 2016.

(Against the order of the Lahore High Court, Lahore dated 7-3-2016 passed in Criminal Miscellaneous No.721-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-i-amd, common intention, abetment---Delay in conclusion of trial---High Court while dismissing the bail petition filed by the accused on ground of statutory delay in conclusion of trial had not given any observation/finding to the effect as to who, either the accused or the prosecution, was responsible for the delay in conclusion of trial---Both parties before the Supreme Court consented to the fact that it would be reasonable if the impugned order of High Court was set aside and the case was remanded to the High Court---Supreme Court set aside the impugned order of High Court accordingly and directed that the bail application shall be deemed to be pending before the High Court for decision afresh.

Malik Asif Ahmad Nasuana, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. for Respondents.

Mian Parvez, Advocate Supreme Court for the Complainant.

Date of hearing: 23rd May, 2016.

2016 S C M R 1362

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ

CIVIL REVIEW PETITIONS NOS.247 TO 249 OF 2011 IN CIVIL APPEALS NOS. 239 TO 241 OF 2011

(Review of the judgment of this Court dated 7-10-2011 passed in C.As. Nos.239 to 241 of 2011)

AND

CIVIL PETITION NO. 423 OF 2011

(On appeal from the judgment of Islamabad High Court, Islamabad Dated 15-3-2011 passed in W.P. No.4853 of 2010)

AND

CRL. MISC. AS. NOS. 871 TO 873 OF 2014 IN CRL. MISC. A. NO.533 OF 2012

(Impleadment applications)

P.T.C.L. and others---Petitioners

Versus

MASOOD AHMED BHATTI and others---Respondents

Civil Review Petitions Nos.247 to 249 of 2011 in Civil Appeals Nos.239 to 241 of 2011, Civil Petition No. 423 of 2011 and Criminal Miscellaneous As. Nos. 871 to 873 of 2014 in Crl. Misc. A. No. 533 of 2012, decided on 19th February, 2016.

(a) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 35(2), 36(1) & (2)---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9(2) [since repealed]---Civil Servants Act (LXXI of 1973), Ss. 3 to 22---Constitution of Pakistan, Art. 199 ---Employees of Pakistan Telegraph and Telephone Department (Department) who were subsequently transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)---Terms and conditions of service---Constitutional jurisdiction of the High Court---Scope---Such employees did not remain civil servant upon their transfer to the Corporation in the first instance and then the Company, however their terms and conditions of service were statutorily protected---Violation of any term or condition of service of such employees would thus be amenable to the constitutional jurisdiction of the High Court Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 incorrectly decided.

Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 incorrectly decided.

Employees of Pakistan Telegraph and Telephone Department (Department) on their transfer to the Pakistan Telecommunication Corporation (the Corporation) became employees of the Corporation under section 9 of the Pakistan Telecommunication Corporation Act, 1991 and then of the Pakistan Telecommunication Company Limited (Company) under section 35 of the Pakistan Telecommunication (Re-Organization) Act, 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage. Legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since such employees became employees of the Corporation in the first instance and then the Company, they did not remain 'civil servants' any more. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act, 1973 and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 were essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court.

Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 incorrectly decided.

Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 distinguished.

(b) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)--

----S. 34--- Constitution of Pakistan, Art. 199(5)--- Pakistan Telecommunication Company Ltd. ('Company")---'Company' was a 'person' performing functions in connection with the affairs of the Federation within the contemplation of Art. 199(5) of the Constitution.

Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan Telecommunication Company Limited through General Manger and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Principal Cadet College, Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Pakistan Red Crescent Society v. Syed Nazir Gillani PLD 2005 SC 806; Executive Council Allama Iqbal Open University, Islamabad through Chairman and another v. Muhammad Tufail Hashmi 2010 SCMR 1484; Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Oil and Gas Development Company and others v. Nazar Hussain and others 2010 SCMR 1060; Syed Tahir Abbas Shah v. OGDCL through M.D. Head Office, Islamabad and another 2011 SCMR 1912; Muhammad Tariq Badar and another v. National Bank of Pakistan and others 2013 SCMR 314; Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472; Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 and Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526 ref.

Khalid Anwar, Senior Advocate Supreme Court, Shahid Anwar Bajwa, Advocate Supreme Court, Ms. Zahida Awan, EVP (Legal Affairs), PTCL, Syed Irfan Ali Shah, GM (Legal), Affan Ehsan, Manager (Legal), Rasheed Zafar, Manager (Legal) and Javaid Mukhtar, Senior Manager (L) for Petitioners (in Civil Review Petitions Nos. 247 to 249 of 2011 and C.P. No. 423 of 2011).

G.M. Chaudhry, Advocate Supreme Court for Applicants (in Crl. Misc. 871 to 873 and C.M.A. 723-725 of 2016).

Waqar Ahmed Rana, Additional AGP for the Federation.

Abdul Rahim Bhatti, Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court for Respondent No.1 (in CRP 247 of 2011 and CRP 248 of 2011).

Respondent No.1 in person (in CRP 249 of 2011).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents Nos. 1 and 6 (in C.P. 423 of 2011).

Date of hearing: 19th February, 2016.

2016 S C M R 1375

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

CIVIL APPEAL NO.134-P OF 2013

(On appeal against the judgment dated 24-03-2011 passed by the Peshawar High Court, Peshawar, in Review Petition No.103/2009 in W.P. No.59/2009)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture and others---Appellants

Versus

ADNANULLAH---Respondent

CIVIL APPEAL NO.135-P OF 2013

(On appeal against the judgment dated 22-09-2011 passed by the Peshawar High Court, Peshawar, in Writ Petition No.2170/2011)

CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA and others- -Appellants

Versus

AMIR HUSSAIN and others---Respondents

CIVIL APPEAL NO.136-P OF 2013

(On appeal against the judgment dated 07-03-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1897/2011)

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Appellants

Versus

MUHAMMAD YOUNAS and others---Respondents

CIVIL APPEAL NO.137-P OF 2013

(On appeal against the judgment dated 13-03-2012 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.200-A/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Appellants

Versus

ATTAULLAH KHAN and others---Respondents

CIVIL APPEAL NO.138-P OF 2013

(On appeal against the judgment dated 20-06-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.189-M/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture Livestock Peshawar and others---Appellants

Versus

MUHAMMAD AYUB KHAN---Respondent

CIVIL APPEAL NO.52-P OF 2015

(On appeal against the judgment dated 5-12-2012 passed by the Peshawar High Court, Peshawar in Writ Petition No.3087/2011)

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

Versus

QALBE ABBAS and another---Respondents

CIVIL APPEAL NO.1-P/2013

(On appeal against the judgment dated 10-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Writ Petition No.2474/2011)

DISTRICT OFFICER COMMUNITY DEVELOPMENT DEPARTMENT (SOCIAL WELFARE) and others---Appellants

Versus

GHANI REHMAN and others---Respondents

CIVIL APPEAL NO.133-P OF 2013

(On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in Writ Petition No.2001/2009)

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

Versus

IFTIKHAR HUSSAIN and others---Respondents

CIVIL APPEAL NO.113-P OF 2013

(On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.2380/2009)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary I.T., Peshawar and others---Appellants

Versus

MUHAMMAD AZHAR and others---Respondents

CIVIL APPEAL NO.231 OF 2015

(On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I.Khan Bench, in Writ Petition No.37-D/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture, Livestock, Peshawar and another---Appellants

Versus

SAFDAR ZAMAN and others---Respondents

CIVIL APPEAL NO.232 OF 2015

(On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I. Khan Bench, in Writ Petition No.97-D/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture, Livestock, Peshawar and another---Appellants

Versus

INNAYATULLAH and others---Respondents

CIVIL PETITION NO.600-P OF 2013

(On appeal against the judgment dated 06-06-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1818/2011)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. and others---Petitioners

Versus

NOMAN ADIL and others---Respondents

CIVIL PETITION NO.496-P OF 2014

(On appeal against the judgment dated 26-06-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1730-P/2014)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Peshawar and others---Petitioners

Versus

MUHAMMAD NADEEM JAN and others---Respondents

CIVIL PETITION NO.34-P OF 2015

(On appeal against the judgment dated 23-09-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.141-P/2014)

DEAN, PAKISTAN INSTITUTE OF COMMUNITY OPHTHALMOLOGY (PICO), HMC and another---Petitioners

Versus

MUHAMMAD IMRAN and others---Respondents

CIVIL PETITION NO.526-P OF 2013

(On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.376-P/12)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Peshawar and others---Petitioners

Versus

Mst. SAFIA---Respondent

CIVIL PETITION NO.527-P OF 2013

(On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.377-P/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

Mst. REHAB KHATTAK---Respondent

CIVIL PETITION NO.528-P OF 2013

(On appeal against the judgment dated 12-03-2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.378-P/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

FAISAL KHAN---Respondent

CIVIL PETITION NO.28-P OF 2014

(On appeal against the judgment dated 19-09-2013 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.4335-P/2010)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

RAHIMULLAH and others---Respondents

CIVIL PETITION NO.214-P OF 2014

(On appeal against the judgment dated 30-01-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2131-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

Mst. FAUZIA AZIZ---Respondent

CIVIL PETITION NO.621-P OF 2015

(On appeal against the judgment dated 08-10-2015 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.55-A/2015)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

Mst. MALIKA HIJAB CHISHTI---Respondent

CIVIL PETITION NO.368-P OF 2014

(On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.351-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

IMTIAZ KHAN---Respondent

CIVIL PETITION NO.369-P OF 2014

(On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.352-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

WAQAR AHMED---Respondent

CIVIL PETITION NO.370-P OF 2014

(On appeal against the judgment dated 1-4-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.353-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

Mst. NAFEESA BIBI---Respondent

CIVIL PETITION NO.371-P OF 2014

(On appeal against the judgment dated 1-4-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2454-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

Mst. NAIMA---Respondent

CIVIL PETITION NO.619-P OF 2014

(On appeal against the judgment dated 18-09-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2428-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others---Petitioners

Versus

MUHAMMAD AZAM and others---Respondents

Civil Appeals Nos. 134-P, 135-P, 136-P, 137-P, 138-P, 1-P, 133-P, 113-P of 2013, 52-P, 231, 232 of 2015, Civil Petitions Nos. 600-P, 526-P, 527-P, 528-P of 2013, 496-P, 28-P, 214-P, 368-P, 369-P, 370-P, 371-P, 619-P of 2014, 34-P and 621-P of 2015, decided on 24th February, 2016.

Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----S. 19(2)---Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009), S. 3---Constitution of Pakistan, Art. 25---Project employees---Contract appointment---Regularization in service---Discrimination---Section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 provided for the regularization of employees who were appointed either on contract basis or ad hoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of the Act---Admittedly the project/contract employees, in the present case, fulfilled such criteria---Projects were brought under the regular Provincial Budget Schemes and the Chief Minister had given approval for operating the projects on permanent basis---Status of project employees ended once their services were transferred to the different attached Government departments---Provincial Government could not adopt a policy of cherry picking to regularize the employees of certain projects while terminating the services of other similarly placed employees.

Respondents were appointed on various posts on contract basis, and their contract was extended from time to time. Summary was prepared for the Provincial Chief Minister, for creation of regular vacancies, recommending that eligible temporary/contract employees who, at that time, were working on different projects may be accommodated against regular posts on the basis of seniority. Chief Minister approved the proposed summary. Services of the respondents were, however, not regularized. Contention of respondents was that other employees placed in similar posts had been granted relief of regularization, therefore, they were also entitled to the same treatment.

Cases of the respondents squarely fell within the ambit of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 and their services were mandated to be regulated by the provisions of the said Act. Section 3 of the said Act clearly provided for the regularization of employees who were appointed either on contract basis or ad hoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of the Act. Admittedly, the respondents were appointed on one year contract basis, which period was extended from time to time and they were holding their respective posts on the cut-off date provided in section 3 of the Act.

Respondents were appointed on contract basis on different project posts but the projects were funded by the Provincial Government by allocating regular Provincial Budget prior to the promulgation of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Almost all the projects were brought under the regular Provincial Budget Schemes by the Provincial Government and summaries were approved by the Chief Minster for operating the projects on permanent basis.

Record further revealed that the respondents were appointed on contract basis and were in employment/service for several years and projects on which they were appointed had also been taken on the regular budget of the Government, therefore, their status as project employees had ended once their services were transferred to the different attached Government departments, in terms of section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Provincial Government was also obliged to treat the respondents at par, as it could not adopt a policy of cherry picking to regularize the employees of certain projects while terminating the services of other similarly placed employees.

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa, Syed Masood Shah, SO Litigation, Hafiz Attaul Memeen, SO. Litigation (Fin), Muhammad Khalid, AD (Litigation) and Abdul Hadi, SO (Litigation) for Appellants (in C.A. 134-P of 2013).

Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A. 134-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents Nos. 186, 188 and 191 (in C.A. 134-P of 2013).

Ayub Khan, Advocate Supreme Court for Respondents (in C.M.A. 496-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 135-P of 2013).

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A. 135-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 136-P of 2013).

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A. 136-P of 2013)

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 137-P of 2013).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos. 2 to 6 (in C.A. 137-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 138-P of 2013).

Nemo for Respondents (in C.A. 138-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 52-P of 2013).

Respondent No.1 in person (Absent) (in C.A. 52-P of 2013).

Nemo for Respondent No.2. (in C.A. 52-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 1-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court and Khushdil Khan, Advocate Supreme Court for Respondents Nos.1-4, 7, 8 and 10-13 (in C.A. 1-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 133-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents Nos. 1-3, 5 and 7 (in C.A. 133-P of 2013).

Nemo for Respondents Nos.4, 8, 9 and 10 (in C.A. 133-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 113-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents (in C.A. 113-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 231-P of 2015).

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.1 - 3 (in C.A. 231-P of 2015).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. 232-P of 2015).

Shoaib Shaheen, Advocate Supreme Court for Respondent No.1 (in C.A. 232-P of 2015).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.P. 600-P of 2014).

Mst. Sadia Rehim, Respondent (in person) (in C.P. 600-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa and Noor Afzal, Director, Population Welfare Department for Petitioners (in C.P. 496-P of 2014).

Khushdil Khan, Advocate Supreme Court for Respondents (in C.P. 496-P of 2014).

Shakeel Ahmed, Advocate Supreme Court for Petitioners (in C.P. 34-P of 2014).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.P. 34-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.Ps. 526 to 528-P of 2013).

Ijaz Anwar, Advocate Supreme Court for Respondents (in C.Ps. 526 to 528-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.P. 28-P of 2014).

Ghulam Nabi Khan, Advocate Supreme Court and Khushdil Khan, Advocate Supreme Court for Respondents (in C.P. 28-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.Ps. 214-P, 368-371-P, 619-P of 2014 and 621-P of 2015).

Nemo for Respondents (in C.Ps. 214-P, 368-371-P, 619-P of 2014 and 621-P of 2015).

Date of hearing: 24th February, 2016.

2016 S C M R 1399

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

MUHAMMAD NAUMAN HANIF---Petitioner

Versus

The STATE and another---Respondents

Crl. Petition No. 456-L of 2016, decided on 25th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 10-3-2016 passed in Crl. Misc. No.15009-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 377---Sodomy---Bail, grant of---Further inquiry---According to doctor there was no injury sign around the anus or in the anal canal---Doctor had furnished his final opinion to the effect that DNA report was in the negative---Prima facie, there was delay of eight days in lodging of the FIR---Case of the accused in such circumstances became one of further enquiry falling within the purview of S. 497(2), Cr.P.C.---Accused was behind bars for the last 9-1/2 months---No useful purpose shall be served by keeping accused behind the bars for an indefinite period---Accused was granted bail accordingly.

Ch. Riyasat Ali, Advocate Supreme Court for Petitioner.

Syed Iqbal Hussain Gillani, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for the Complainant.

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

Date of hearing: 25th May, 2016.

2016 S C M R 1401

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Umar Ata Bandial, JJ

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1391-L of 2015, decided on 26th January, 2016.

(On appeal against the judgment dated 2-11-2015 passed by the Lahore High Court Lahore in Crl. Misc. No. 6099/B of 2015)

(a) Precedent---

----Criminal cases---Citations referred to by counsel---Citations referred to in a criminal case were of no help, as (criminal) cases were decided on their own facts.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 34---Double murder case---Bail, refusal of---Accused had been nominated with a specific role in the FIRs and recovery had been effected from him---Specific motive had also been attributed to the accused---Police had found the accused guilty during investigation and in both the FIRs the accused had been implicated---Sufficient material was available on record to deny him bail---Bail was refused accordingly.

Naveed Inayat Malik, Advocate Supreme Court for Petitioner.

Aftab Hussain Bhatti, Advocate Supreme Court for the Complainant.

Abdul Majeed Rana, Additional P.-G. for the State.

Date of hearing: 26th January, 2016.

2016 S C M R 1403

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

GHULAM ABBAS and others---Appellants

Versus

MOHAMMAD SHAFI through LRs and others---Respondents

Civil Appeal No. 446 of 2012, decided on 20th April, 2016.

(On appeal from the judgment dated 16-3-2012 passed by Lahore High Court, Rawalpindi Bench in C.R. 324/2003)

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

----O. XXIII, R. 1(3)---Suit challenging mutation of inheritance---Unconditional withdrawal of suit by plaintiff on basis of a purported oral compromise---Impugned mutation remaining in existence during lifetime of plaintiff notwithstanding the compromise---Effect---Acquiescence by plaintiff---Forbearance by plaintiff to dispute the impugned mutation after the purported oral compromise either constituted the satisfaction of his claim or the abandonment of his cause of action---Suit filed by the legal heirs of plaintiff after 43 years challenging the (same) impugned mutation on the same cause of action was barred under O. XXIII, R. 1(3), C.P.C. in circumstances.

Plaintiff had alleged that mutation of inheritance recorded in favour of his consanguine brothers and sisters (defendants) was illegal. Plaintiff filed suit challenging said mutation of inheritance. However, plaintiff subsequently withdrew the suit unconditionally by order dated 30-01-1957 without seeking permission to file a fresh suit. Purported oral compromise between plaintiff and the defendants was cited by the plaintiff as the basis of the withdrawal of his suit but neither the terms of the compromise were stated before or recorded by the Trial Court nor was any defendant examined before the Trial Court to state or admit the terms of any compromise. Impugned mutation remained in existence notwithstanding the compromise. Plaintiff did not file any proceedings to enforce the terms of his compromise till his death in the year 1987. Inaction and acquiescence of plaintiff to challenge the impugned mutation for 30 years was evidence that it complied with his compromise. In the year 2000, when the legal heirs of the plaintiff filed a suit to challenge the impugned mutation, neither of the parties to the oral compromise survived to prove its terms. At best the plaintiff's heirs could bring hearsay evidence and that too after a delay of 43 years. In the said circumstances, it was futile to grant an opportunity to the heirs of plaintiff and defendants to lead evidence about the terms of the oral compromise.

Withdrawal of the suit by plaintiff was unconditional or the impugned mutation did not infringe any terms of the purported compromise with the defendants. Forbearance by plaintiff to dispute the impugned mutation for 30 years on the basis of his oral compromise either constituted the satisfaction of his claim or the abandonment to his grievance and cause of action. In either case, the result deprived his legal heirs of their locus standi to assert and allege the forgone claim or entitlement. In the circumstances, the later suit filed by the heirs of plaintiff on the same cause of action was barred under O. XXIII, R. 1(3), C.P.C.

Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146; Shahid Mehmood v. Afzal Mehmood 2011 SCMR 551 and Muhammad Yar v. Muhammad Amin 2013 SCMR 464 rel.

(b) Title through Prescription---

----Scope---Merely holding the possession of land could not confer its title through prescription.

Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063 ref.

(c) Inheritance---

----Inheritance mutation---Estoppel and abandonment of claim---Where any heir, who was directly affected by a wrongfully recorded mutation of inheritance, failed to challenge such mutation for a considerable length of time until his death, deprived his own heirs of the locus standi to dispute such mutation on the ground of his estoppel, abandonment of claim/cause of action.

Abdul Haq v. Surraya Begum 2002 SCMR 1330; Kala Khan v. Rab Nawaz 2004 SCMR 517 and Muhammad Rustam v. Mukhan Jan 2013 SCMR 299 rel.

Gulzarin Kiani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Muhammad Amir Butt, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

Date of hearing: 20th April, 2016.

2016 S C M R 1410

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Sardar Tariq Masood, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Industries Commerce and Mineral Development, Peshawar and others---Petitioners

Versus

FRONTIER CHEMICAL INDUSTRIES RAM BAGH, MARDAN---Respondent

Civil Petition No. 548-P of 2013, decided on 28th April, 2016.

(On appeal against the judgment dated 2-7-2013 passed by the Peshawar High Court, Abbottabad Bench in C.R. No. 380 of 2005)

(a) Khyber Pakhtunkhwa Mining Concession Rules, 1976---

----Rr. 93(3) & 94---Order of Licensing Authority challenged in appeal before the Provincial Government---Decision of Government on appeal shall be final---Such decision could not be challenged in any forum (such as the civil court) unless mala fide, or want of jurisdiction or violation of the Khyber Pakhtunkhwa Mining Concession Rules, 1976, was established.

Order of Licensing Authority could be challenged through an appeal to the Government. Decision of the Government subject to the provisions and the rules, in view of Rule 93(3) Khyber Pakhtunkhwa Mining Concession Rules, 1976, was final. Such a decision was, however, justiciable if passed on account of mala fide, without jurisdiction, or in violation of the Rules. In the absence of any such manifestation, the decision of the Government being final could not be questioned in any forum (including the civil court).

(b) Constitution of Pakistan---

----Art. 185(3)---Supreme Court Rules, 1980, O. XIII, R. 1---Petition for leave to appeal, filing of---Delay of 41 days by a department of the Provincial Government in filing such petition---Condonation of delay---Plea on behalf of Provincial Government that delay in filing the petition occurred because of late supplies of copies and lengthy correspondence between various tiers of the department---Validity---Such an explanation, in the matrix of the present case, appeared to be satisfactory, more so when the conduct of the subordinate functionaries, who being sell-outs, were ever ready to do away with anything public for petty gains---Delay in filing petition for leave to appeal was condoned accordingly.

Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627 ref.

Aziz ur Rehman Hamid v. Crescent Commercial Bank 2008 SCMR 54; Engineer-in-Chief, G.H.Q. and another v. Abdul Khaliq Siddiqui 2008 SCMR 60; Muhammad Idrees Alvi v. Employees Old-Age Benefits Institution and 4 others 2001 SCMR 1967 and Gul Muhammad v. M.C.B. Bank Ltd. through President and others 2012 SCMR 136 distinguished.

Mujahid Ali Khan, Additional A.-G. Khyber Pakhtunkhwa for Petitioners.

M. Naeem Anwar, Advocate Supreme Court for Respondent.

Date of hearing: 19th April, 2016

2016 S C M R 1415

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

RAMZAN and others---Petitioners

Versus

The STATE and others---Respondents

Crl. P. No. 386-L of 2016, decided on 16th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 10-3-2010 passed in Crl. Misc. No. 414-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 440, 148 & 149---Allegation of inflicting severe beating---Pre-arrest bail, grant of---Allegation against accused and co-accused persons was that they tried to include land of the complainant into their own land; that when the complainant tried to forbid them from doing so, the accused and co-accused armed with different weapons inflicted injuries and threatened to kill him---Delay of more than five months in lodging the FIR---Complainant purportedly filed an application before the Revenue Department, however such fact was not mentioned in the FIR---No Medico-legal Report was available on record to show that the complainant got injured during the incident---No specific role had been attributed to the accused in the FIR---Prima facie, the dispute qua the land appeared to be more of civil nature than criminal---Mala fide on the part of the complainant in such circumstances, for false implication of the accused could not be ruled out---Accused was admitted to pre-arrest bail accordingly.

Mian Muhammad Aslam, Advocate Supreme Court along with Petitioners for Petitioners.

Mushtaq Ahmed Mohal, Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondent No.2/Caveat.

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

Date of hearing: 16th May, 2016.

2016 S C M R 1417

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Umar Ata Bandial, JJ

PEER BAKSH through LRs and others---Petitioners

Versus

Mst. KHANZADI and others---Respondents

Civil Petitions Nos. 1079-L and 1080-L of 2012, decided on 25th January, 2016.

(On appeal from the judgment dated 16-2-2012 of the Lahore High Court, Bahawalpur Bench passed in C.Rs. Nos.317 and 318 of 1998)

(a) Gift---

----Mutations of gift of property in favour of son to the exclusion of daughters---Essential ingredients of a valid gift not proved---Son was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations, however, neither particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by deceased-donor in favour of the son had been provided in the pleadings nor any evidence could be produced by the son in such behalf---Admittedly deceased-donor was a patient of paralysis and was above 85 years of age when the disputed gift mutations were recorded on his statement, however, the Halqa Patwari, had described the person making statement of tamleeq before him as a healthy man---Courts below had disbelieved the said witness who was admittedly a dismissed public servant---Two persons who had purportedly identified the alleged donor before the Revenue Officer were not lambardars, nor held any other public office as required by S. 42 of the Punjab Land Revenue Act, 1967, which was a serious illegality---Courts below had rightly passed a decree in favour of the daughters.

(b) Limitation---

----Limitation did not run against a void transaction.

(c) Islamic law---

----Inheritance---Efflux of time did not extinguish the right of inheritance.

(d) Mutation---

----Mutation was not a proof of title and a beneficiary thereunder must prove the original transaction.

Muhammad Iqbal v. Mukhtar Ahmad 2008 SCMR 855 and Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832 ref.

Mumtaz Mustafa, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners (in both cases).

Ihsan-ul-Haq Ch., Senior Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 25th January, 2016.

2016 S C M R 1420

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Faisal Arab, JJ

Ms. SHAMUNA BADSHAH QAISARANI---Appellant

Versus

Khuwaja MUHAMMAD DAWOOD and others---Respondents

Civil Appeal No. 1628 of 2014, decided on 9th May, 2016.

(On appeal against the judgment dated 19-11-2014 passed by Election Tribunal, Bahawalpur and D.G. Khan Divisions in Election Petition No. 13 of 2013)

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

----S. 76A---Non-disclosure/incorrect disclosure of properties belonging to returned candidate and her spouse---Election of returned candidate declared as void---Fact that certain properties were not disclosed in the nomination papers was not denied by the returned candidate in the present case---Plea by returned candidate that subject properties were not disclosed as they were transferred to her brother, did not find support from the revenue record---Only in an affidavit it had been disclosed that the properties had been transferred to her brothers---At the time of filing of the nomination papers these properties were admittedly in the name of the returned candidate and her spouse in the revenue record---Election Tribunal, in such circumstances, had rightly declared election of returned candidate as void and ordered fresh elections in the constituency.

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

----Ss. 52 & 76A---Constitution of Pakistan, Art. 225---Election petition filed before the Election Tribunal along with an application under S.76A of Representation of the People Act, 1976---Corrupt and illegal practices alleged in the election petition not proved---Application under S. 76A could still be entertained and decided upon even where the petitioner failed in establishing allegations of corrupt and illegal practices made in the election petition---Such procedure was very much within the confines of Art. 225 of the Constitution, thus it could not be said to be unconstitutional.

Election petition alleging corrupt and illegal practices committed by returned candidate was filed before the Election Tribunal. During pendency of election petition an application was filed under section 76A of Representation of the People Act, 1976 alleging that the returned candidate had also failed to disclose certain properties belonging to her and her spouse. Before the Tribunal though the allegations of corrupt practices could not be established however while hearing the application filed under section 76A of the Representation of the People Act, 1976 it transpired that the returned candidate did in fact fail to disclose certain properties in her nomination form belonging to her and her spouse. Election of the returned candidate was declared void and fresh elections were ordered to be held in the constituency. Returned candidate contended that section 76A of Representation of the People Act, 1976 was contrary to the provisions of Article 225 of the Constitution; that according to Article 225 of the Constitution, no election to a House or Provincial Assembly could be called in question except by election petition and in the present election petition the petitioner failed in establishing plea of corrupt and illegal election practices and that, in the circumstances, the Election Tribunal ought not to have entertained the application filed under section 76A of Representation of the People Act, 1976.

Article 225 of the Constitution clearly provided that no election to a House or 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 Parliament. The Representation of the People Act, 1976 was an Act of the Parliament, which had provided the manner in which an election was to be challenged before the Election Tribunal. Section 76A of the Representation of the People Act, 1976 granted suo motu powers to the Election Tribunal to declare election of a returned candidate void on certain grounds which included non-disclosure or incorrect disclosure of assets of the candidate or his spouse or his dependents. Under section 76A such disclosure could come from any source before the Election Tribunal, which in the present case came from the election petitioner. Procedure adopted by the election petitioner and entertained by the Election Tribunal in the present case was very much within the confines of Article 225 of the Constitution, thus it could not be said to be unconstitutional.

Khadim Nadeem Malik, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Appellant.

Sardar Muhammad Aslam, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1.

Date of hearing: 9th May, 2016.

2016 S C M R 1424

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

ATEEB UR REHMAN @ ATTI MOCHI---Petitioner

Versus

The STATE and others---Respondents

Criminal P. No. 335-L of 2016, decided on 17th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 16-2-2016 passed in Crl. Misc. No.1409-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Accused was allegedly found in possession of 1014 grams of heroin, contained in a shopper/polythene bag---Prosecution, after going through the recovery memo available on the file of police record, could not show whether the recovered heroin was weighed along with the polythene bag or otherwise---If the recovered heroin was weighed along with the polythene bag, prima facie, the weight of the heroin without the polythene bag, might have come to 1000 grams or less, in which eventuality, the case of the accused would fall within the ambit of S. 9(b) of the Control of Narcotic Substances Act, 1997---In such backdrop, the case of the accused was one of further inquiry falling within the purview of S.497(2), Cr.P.C.---Accused was allowed bail accordingly.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

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

Date of hearing: 17th May, 2016.

2016 S C M R 1426

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MANZOOR HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 311 of 2010, decided on 9th March, 2016.

(Against the judgment dated 19-3-2010 passed by Lahore High Court, Lahore passed in Cr. As. Nos. 1981 and 1980 of 2006 and Crl. R. No.109 of 2007)

Penal Code (XLV of 1860)---

----Ss. 396 & 397---Dacoity with murder, robbery or dacoity with attempt to cause death or grievous hurt---Re-appraisal of evidence---Benefit of doubt---According to three eyewitnesses, the accused persons did not cause any injury either to the deceased or to the injured---Evidence of the prosecution regarding co-accused persons, who were attributed fatal shot to the deceased and the injured, had not been believed by the High Court---Question arose as to how the same evidence could be believed qua the accused persons---Although all the witnesses identified the accused persons during the identification parade but none of the witness described any role to them---Witnesses ascribed certain roles to all accused persons for the first time during the trial---Identification parade lost its evidentiary value in such circumstances and was worthless---Police official from whom a weapon was allegedly snatched by accused persons was never produced by the prosecution and his evidence was withheld and, he was given up, as being unnecessary---In such eventuality, an inference could be drawn that said police official was not ready to support the prosecution story---Contradictions were observed in the statements of prosecution witnesses with regard to who fired at the deceased and who snatched the weapon from the police official---According to the report of Forensic Science Laboratory, the crime empties recovered from the spot were found to have not been fired from the weapon allegedly recovered from some of the co-accused persons---Circumstances of the present case created serious doubt in the prosecution story benefit of which had to be extended to accused and co-accused persons---Appeal was allowed accordingly.

Zafar Iqbal Chohan, Advocate Supreme Court for Appellants Nos. 1-2.

Mian Ghulam Hussain, Advocate Supreme Court/Advocate-on-Record for Appellant No.3.

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

Date of hearing: 9th March, 2016.

2016 S C M R 1430

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

SAIF ULLAH---Appellant

Versus

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, FAISALABAD and another---Respondents

Civil Appeal No. 368-L of 2013, decided on 8th March, 2016.

(On appeal from the judgment dated 17-4-2012 passed by the Federal Service Tribunal, Lahore Bench in Appeal No. 25(L)CS/11)

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 3---Post Office Manual, Vol. VI, R. 590(3)---Compulsory retirement converted to reinstatement in service with stoppage of five years increments---Postmaster---Allegation of facilitating commission of fraud, cheating by fabrication, dishonesty and embezzlement---Admittedly there was no allegation against the Postmaster of having embezzled any amount and on the contrary, there was admission on the part of his co-accused regarding the said embezzled amount which he had admitted and promised to return in part payments---At most the failure of the Postmaster to get signatures in hand to hand cash book could have been considered to be a lapse on his part falling within the parameter of inefficiency, but it could not be considered to be of fraud, forgery or embezzlement entailing the major penalty of removal from service resulting in his compulsory retirement---Supreme Court converted the punishment of compulsory retirement of the Postmaster to that of stoppage of five years increments following his reinstatement in service, however back benefits were not granted.

(b) Civil service---

----Punishment should always commensurate with the guilt proved.

Hafiz Tariq Nasim, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Appellant.

Zikriya Sh., DAG and A.H. Masood, Advocate-on-Record for Respondents.

Date of hearing: 8th March, 2016.

2016 S C M R 1433

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

Civil Review Petition No. 559 of 2015

(On review from the order dated 1.7.2015 passed by this Court in C.P. No. 1260/2015)

IN/AND

Civil Petition No. 1260 of 2015

(On appeal from the judgment dated 27th May, 2015 in Civil Revision No.42/2012 passed by the High Court of Balochistan Quetta)

HASAM UD DIN and others---Petitioners

Versus

QUETTA METROPOLITAN CORPORATION through Administrator (Now Mayor) Quetta and others---Respondents

Civil Review Petition No. 559 of 2015 in/and Civil Petition No. 1260 of 2015, decided on 1st June, 2016.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 4---Balochistan Autonomous Bodies Immovable Property (Ejectment of Unauthorized Occupants) Ordinance (XXXVII of 1965), Preamble--- Statutory tenants of shops owned by Metropolitan Corporation---Enhancement of rent by the Corporation---Legality---Plea of tenants that the rent could only be increased by mutual consent of the parties, failing which the Corporation was required to submit an application for determination of fair rent---Validity---No ulterior motive had been subscribed to the Corporation in enhancing the rent---Tenants themselves did not take recourse for determination of fair rent under S. 4 of the Balochistan Urban Rent Restriction Ordinance, 1959 but instead had filed a suit with the prayer that the Corporation could not unilaterally and arbitrarily increase rent---If for arguments' sake it was accepted that rent could only be enhanced by the Corporation in agreement with the tenants then no agreement would materialize because tenants would not be expected to pay more rent if they could get away with by paying less---Since the properties of the local bodies, including the Metropolitan Corporation had been excluded from the applicability of Balochistan Urban Rent Restriction Ordinance, 1959 the Corporation was not required to submit an application for fixation of fair rent thereunder---Supreme Court directed that in case the tenants wanted to continue with the tenancy of the premises in their occupation they should proceed in terms of the Corporation's notice whereby they were called upon by the Corporation to submit stamp papers of prescribed value for execution of fresh agreements as per the rent determined by the Rent Committee; that the tenants shall start paying rent on the said rates immediately, and that the accumulated rent, as per the rates determined by the Rent Committee, shall be paid within a period of three months.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Hadi Shakeel Ahmed, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record (absent) for Respondents (in both cases).

Date of hearing: 24th May, 2016.

2016 S C M R 1439

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

ABDUL HAFEEZ---Petitioner

Versus

The STATE and others---Respondents

Crl. Petition No. 416-L of 2016, decided on 23rd May, 2016.

(Against the order of the Lahore High Court, Lahore dated 7-3-2016 passed in Crl. Misc. No.25741-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Bail granted on basis of undertaking given by counsel of accused---Allegation against the accused was that he, in collusion with his co-accused, prepared a forged Iqrarnama to usurp the agricultural land owned by the complainant and defrauded him---Accused categorically stated that he was not involved in preparing the forged document (Iqrarnama), nor he had anything to do with the same---Counsel for accused undertook at the Bar that if the accused was admitted to bail, he shall not claim any benefit on the basis of the impugned document, nor will he use it anywhere---Complainant had no objection if bail was granted to the accused, provided that he stood by the undertaking---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail in circumstances with the observation that the complainant shall be at liberty to file a petition for cancellation of bail granted to the accused, if the latter, in any manner, tried to flout the undertaking given by his counsel.

Hashim Sabir Raja, Advocate Supreme Court and Ch. Nawab Ali Meo, Advocate Supreme Court for Petitioner.

M. Javed Kasuri, Advocate Supreme Court for the Complainant.

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

Date of hearing: 23rd May, 2016.

2016 S C M R 1441

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

FAQEER MUHAMMAD---Petitioner

Versus

SHAHBAZ ALI and others---Respondents

Criminal Petition No. 496-L of 2013, decided on 13th January, 2016.

(Against the order dated 2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.(sic.))

Criminal trial---

----Murder---Appeal against acquittal--- Reappraisal of evidence---Planted eye-witnesses---Ocular account not worthy of consideration---Father and a brother of deceased appeared as prosecution eyewitnesses and claimed that they were with deceased at the time of the occurrence and immediately shifted him to a Government hospital in injured condition---Record of the case, however, proved that said witnesses were lying as it had been established before the Trial Court that after having been injured deceased had initially been shifted to a private hospital and from there he was transferred to the Government hospital---Record further confirmed that deceased had been brought to the Government hospital in an injured condition not by the eyewitnesses but by Emergency Rescue Service officials, and that it was the administration of the Government hospital which had informed the local police about arrival of deceased in an injured condition---Post-mortem examination had taken place after about 24 to 30 hours of the death of the deceased which factor clearly indicated that time had been consumed by the local police and the complainant party in cooking up a story for the prosecution and in procuring and planting eye-witnesses---Eye-witnesses produced by the prosecution were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was rightly ruled out of consideration---After the ocular account had been ruled out the other circumstances of the case providing corroboration or support to the ocular account automatically collapsed---Benefit of doubt had been rightly extended to the accused to acquit him of the charge---Supreme Court dismissed petition for leave to appeal accordingly.

Mian Asif Mumtaz, Advocate Supreme Court for Petitioner.

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

Date of hearing: 13th January, 2016.

2016 S C M R 1443

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

RIZWAN JAVED and others---Appellants

Versus

SECRETARY AGRICULTURE LIVESTOCK and others---Respondents

Civil Appeal No. 605 of 2015, decided on 24th February, 2016.

(On appeal against the judgment dated 18-2-2015 Passed by the Peshawar High Court Peshawar, in Writ Petition No. 1961 of 2011)

Civil service---

----Project employees--- Contract appointment--- Regularization in service---Discrimination---Appellants were appointed in the Provincial Agri-Business Coordination Cell in the year 2007 on contract basis---After completion of all the requisite codal formalities, the period of their contract appointments was extended from time to time up to 30-6-2011---Project in question was taken over by the Provincial Government in the year 2011---Appellants were terminated from service after the change of hands of the project---Provincial Government by cherry picking, had appointed different persons in place of the appellants---Appellants were discriminated against with respect to other similarly placed project employees---Supreme Court directed that the appellants shall be reinstated in service from the date of their termination and were also entitled to the back benefits for the period they had worked with the project or the Provincial Government; that the service of the appellants for the intervening period i.e. from the date of their termination till the date of their reinstatement shall be computed towards their pensionary benefits---Appeal was allowed accordingly.

Government of Khyber Pakhtunkhwa through Secretary, Agriculture v. Adnanullah and others 2016 SCMR 1375 ref.

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Waqar Ahmed Khan, Additional A.-G. Khyber Pakhtunkhwa for Respondents.

Date of hearing: 24th February, 2016.

2016 S C M R 1447

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Manzoor Ahmad Malik, JJ

DOLAT KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 453-L of 2016, decided on 25th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 2-3-2016 passed in Crl. M. No. 1995-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)--- Possession of narcotic---Bail, refusal of---Accused was apprehended along with his co-accused while carrying 2400 grams of charas and 1200 grams of opium---Accused was apprehended at the spot by the raiding party and as per the FIR he himself handed over two packets containing charas and opium to the complainant/police official---Accused had not been able to refer to anything from the record which could suggest that the complainant or any other member of the raiding party had any enmity with the accused---Case of the accused fell within the prohibitory clause of S. 497, Cr.P.C.---Huge quantity of narcotics had been recovered from possession of accused, therefore he was not entitled for the concession of bail---Bail was refused accordingly.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Sahibzada Anwar Hamid, Advocate Supreme Court for ANF.

Date of hearing: 25th May, 2016.

2016 S C M R 1448

[Supreme Court of Pakistan]

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

COLLECTOR OF CUSTOMS---Appellant

Versus

Messrs D.G. KHAN CEMENT CO. LTD.---Respondent

Civil Appeal No.1291 of 2005, decided on 27th April, 2016.

(On appeal against the judgment dated 1-1-2003 passed by the High Court of Sindh, Karachi in Special Customs Appeal No.142 of 2002)

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

----S. 19---S.R.O. 484(I)/92 dated 14-5-1992---Import of 'plant and machinery'---Exemption from customs duty and sales tax---"Off-Highway dump trucks" imported by cement manufacturing company---Whether such trucks fell within the definition of 'plant'---Use of Off-Highway dump trucks at the quarries made them part and parcel of the industrial process of the cement company in question and their utility formed an integral function in the manufacturing of the cement---Direct nexus existed between the use of Off-Highway dump truck at the quarry of the cement manufacturing factory with its industrial process---Such nexus brought the Off-Highway dump truck within the definition of 'plant'---Irrespective of the fact that Off-Highway dump trucks were mobile vehicles, they were utilized to further the industrial process without which the industrial process of a cement factory would get interrupted and hindered at the very initial stage---"Off-Highway dump trucks" fell within the definition of the present company's cement "plant".

Under S.R.O. 484(I)/92 dated 14-5-1992, plant and machinery, not manufactured locally, which were imported for setting up a new unit or for expansion or balancing, modernization and replacement of an already existing unit in certain areas was granted exemption from the whole of the customs duty and sales tax subject to fulfilling certain conditions. Cement company, in the present case, imported three Off-Highway dump trucks and claimed exemption from customs duty and sales tax under S.R.O. 484(I)/92 dated 14.05.1992 by contending that the Off-Highway dump trucks were imported for use in the industrial process of a cement factory, therefore, the same should be regarded as part of the plant and machinery of the cement factory.

Entire set of machines used in conjunction with other apparatus and electrical and mechanical equipment, required for undertaking and completing the cement industrial process, starting right from quarrying till the finished product that was produced was to be regarded as part of the plant of the cement company. In cement industry Off-Highway trucks were used at the quarries where the predominant raw-material in the cement production 'limestone' was won from the quarry by either extraction or blasting following which it was hauled on Off-Highway dump trucks to the place where the second stage in the cement manufacturing i.e. crushing of the raw-material took place. Thus there was direct nexus between the use of Off-Highway dump truck at the quarry of a cement manufacturing factory with its industrial process. Such nexus brought the "Off-Highway dump truck" within the definition of 'plant'. Off-Highway dump trucks could not be excluded from being treated as part of the plant of a cement factory, where their utility formed an integral function in the manufacturing of the cement. Irrespective of the fact that Off-Highway dump trucks were mobile vehicles, these trucks were utilized to further the industrial process without which the industrial process of a cement factory would get interrupted and hindered at the very initial stage.

Yarmouth v. France 1887 LIR 19 Q.B.D. 647 ref.

In the present case, the quarrying of materials was undertaken by one and the same enterprise which after completion of the remaining stages involved in the manufacturing of cement (crushing, blending, heating, cooling, clinkering and milling) ended with the portable cement being produced in bulk or bags for consumption. Cement company, in the present case seemed to be so designed that its' Off-Highway dump trucks involved in the industrial process were to be regarded as part of the 'plant' of the cement factory. Use of Off-Highway dump trucks at the quarries made them part and parcel of the industrial process of a cement factory and thus such trucks fell within the definition of the company's cement plant.

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

----Ss. 19 & 30---S.R.O. 484(I)/92 dated 14-5-1992---S.R.O. 978(I)/95 dated 4-12-1995---Import of 'plant and machinery'---Exemption from customs duty and sales tax---Cut off date for SRO---Letter of credit for imported consignment opened within cut-off date mentioned in SRO, whereas consignment delivered at port after the cut-off date---Date on which 'Letter of Credit' was established or steps were taken in respect of import of consignment were not relevant and it was the date of import which determined applicability of the customs duty---In such circumstances importer-company was not entitled to seek exemption granted under S.R.O. 484(I)/92 dated 14-5-1992---However, the company was entitled to exemption to a limited extent by virtue of a different S.R.O. No. 978(I)/95 dated 4-12-1995 which exempted duties and charges over and above 25% of the leviable customs duty and sales tax and no more---Customs authority was justified in recovering customs dues and sales tax on the imported consignment accordingly.

Fauji Cement Company Limited v. Federation of Pakistan 2014 SCMR 994 ref.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellant.

Salman Akram Raja, Advocate Supreme Court for Respondent.

Dates of hearing: 13th and 27th April, 2016.

2016 S C M R 1456

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

FAIZ MEERAN---Appellant

Versus

MUHAMMAD KHAN and others---Respondents

Criminal Appeal No. 238-L of 2009, decided on 14th January, 2016.

(Against the judgment dated 28-4-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.1986 of 2004)

Criminal trial---

----Murder---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Contradictions in statements of eyewitnesses---Medical evidence not supporting ocular account---Motive not proved---Crime empties not recovered from spot---Admittedly accused and co-accused had not caused any injury to the deceased persons---Only allegation against accused persons was in respect of causing firearm injuries to the injured-witness, which allegation was not supported by the medical evidence because according to the eyewitnesses accused and co-accused had fired at the injured witness from a distance of thirty-five feet but the medical evidence had shown availability of burning on the relevant injuries which was not possible from a distance of thirty-five feet---Apart from that the medical evidence had shown that injured witness had received injuries through pellets whereas according to the prosecution accused and co-accused were shown to be armed with rifles---Glaring contradictions could be observed in the eye-witnesses' statements with regard to who fired at the injured witness---Nothing had been recovered from the possession of co-accused during the investigation of the case and he had been declared innocent by the investigating agency whereas the alleged recovery of a firearm from the custody of accused was legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the alleged murderous assault---Motive set up in the FIR for the incident was either not proved or remained too vague and generalized---High Court had rightly recorded acquittal of accused and co-accused by holding that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against acquittal was dismissed accordingly.

Zahid Hussain Khan, Advocate Supreme Court for Appellant.

Muhammad Inayat Ullah Cheema, Advocate Supreme Court for Respondents Nos. 1 and 2.

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

Date of hearing: 14th January, 2016.

2016 S C M R 1515

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam and Dost Muhammad Khan, JJ

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

----Ss. 302, 324, 353 & 394---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a), (i) & 21-L--- Pakistan Arms Ordinance (XX of 1965), S. 13---

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

----Art. 22---

2016 S C M R 1520

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MUHAMMAD ASLAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.56-L of 2016, decided on 2nd February, 2016.

(Against the order dated 15-12-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.14460-B of 2015)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-i-amd, providing abetment to co-accused for murder---Bail, grant of---Further inquiry---Three separate investigations were conducted and all the investigating officers had concurred in their opinion that the accused was not present at the spot at the time of the occurrence and that he was merely a facilitator or an abettor of his co-accused as regards the murder in issue---Resultantly the report submitted under S. 173, Cr.P.C. imputed abetment qua the accused and he had been opined to be guilty of an offence under S. 109, P.P.C. only---Shifting stands of the complainant vis-a-vis the role played by the accused during the occurrence rendered the case against the accused to be a case calling for further inquiry into his guilt within the purview of subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail accordingly.

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

----S. 497(2)---Bail---Case of further inquiry into guilt of accused---Abscondment of accused--- Effect--- Person absconding after an occurrence and declared as a proclaimed offender may lose his claim to exercise of discretion in his favour by a court of law on the basis of propriety but at the same time it was equally true that an accused person involved in a case calling for further inquiry into his guilt was to be admitted to bail as a matter of right---Whenever a question of propriety was confronted with a question of right the latter must prevail.

Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Ehsan Ullah v. The State 2012 SCMR 1137 ref.

Aftab Ahmad Bajwa, Advocate Supreme Court for Petitioner.

Ejaz Ahmed Janjua, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record with the Complainant in person.

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

Date of hearing: 2nd February, 2016.

2016 S C M R 1523

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

ABDUL GHAFFAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 118-L of 2016, decided on 9th March, 2016.

(Against the order of the Lahore High Court, Lahore dated 26-11-2015 passed in Crl. Misc. No. 12755-CB of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 377---Sodomy---Bail, grant of---Further inquiry---Sample for DNA test was sent to the Forensic Science Agency---Doctor in his final opinion had opined that no act of sodomy was committed---Further the accused remained behind bars for about nine months---Case of the accused called for further inquiry in the light of the opinion of the doctor---High Court had fallen in error in setting aside the bail granting order passed by the Trial Court---Order passed by Trial Court granting bail to accused was restored accordingly.

M.D. Chaudhry, Advocate Supreme Court for Petitioner.

Ch. Din Muhammad Meo, Advocate Supreme Court for Respondent No.2.

Asjad Javaid Ghural, Additional P.-G. and Naimat, SI for the State.

Date of hearing: 9th March, 2016.

2016 S C M R 1525

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Umar Ata Bandial, JJ

REGIONAL POLICE OFFICER GUJRANWALA and another---Appellants

Versus

EJAZ AHMAD and others---Respondents

Civil Appeal No.184-L of 2013, decided on 26th January, 2016.

(On appeal from judgment dated 20-3-2012 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 110 of 2011)

(a) Civil service---

----Promotion---Out of turn promotion---No civil servant (or police personnel) was entitled to out of turn promotion on account of gallantry award or otherwise.

Contempt Proceedings Against Chief Secretary Sindh 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(b) Civil service---

----Seniority---Ante-dated seniority to a civil servant---Violation of the law.

Contempt Proceedings Against Chief Secretary Sindh 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Siraj ul Islam, Additional P.-G. and Rana M. Anwar, S.P. (L) Gujranwala for Appellants.

Aftab Gull, Advocate Supreme Court for Respondent No.1.

Aftab Mustafa, Advocate Supreme Court for Respondent No.7.

M. Arif Gondal, Advocate Supreme Court for Respondents Nos.6, 8, 10 24, 26, 28, 30, 32-35, 37-39 and 41.

Respondents Nos.4, 13 and 19 in person.

Date of hearing: 26th January, 2016.

2016 S C M R 1527

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Criminal Procedure Code (V of 1898)---

----S. 497---Penal code (XLV of 1860), S. 462-C---

2016 S C M R 1529

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MOHSIN ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.42-L of 2016, decided on 3rd February, 2016.

(Against the order dated 23-11-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.12817-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, refusal of---Occurrence had been reported to the police quite promptly and accused had specifically been nominated in the FIR as one of the perpetrators of the alleged murder and he was attributed two firearm injuries to the deceased---One of the injuries attributed to the accused on the back of the deceased's neck was fully confirmed by the post-mortem examination report--- Eye-witnesses mentioned in the FIR stood by their statements made before the police fully implicating the accused for the murder---Offence under S.302, P.P.C. attracted the prohibitory clause contained in subsection (1) of S. 497, Cr.P.C.---Investigating agency had opined in its report that the accused was guilty only of providing behind-the-scene abetment to his co-accused and was not present at the scene of the crime but record of investigation showed that said opinion was not based upon sound material--- Prima facie, reasonable grounds existed to believe accused's involvement in the alleged offence---Bail was refused accordingly.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Complainant in person.

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

Date of hearing: 3rd February, 2016.

2016 S C M R 1531

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Messrs BHANERO TEXTILE MILLS LTD.---Appellant

Versus

The FEDERATION OF PAKISTAN and 3 others---Respondents

Civil Appeal No. 1255 of 2006, decided on 12th May, 2016.

(On appeal against the order dated 30-7-2001 passed by the Lahore High Court, Lahore in I.C.A. No. 242 of 1993)

Customs Act (IV of 1969)---

----S. 30---SRO No.1284(I)/90, dated 13.12.1990---Customs duty---Levy of--- Effective date of import--- Exemption--- Scope--- Imported consignment placed in ex-bond---Ex-bond bill of entry for consignment filed on 18.11.1990---Consignment ex-bond on 5.12.1990---Importer seeking exemption from customs duty under SRO No.1284(I)/90, dated 13.12.1990 which provided exemption on consignments to be imported on or after 1.12.1990---Question as to what was the effective date when the goods were imported in Pakistan for the purposes of claiming benefit under the SRO---Admittedly the consignments were unloaded at the port much before the date of SRO No.1284(I)/90, dated 13.12.1990 and merely because at the request of the importer , the goods were placed in ex-bond, benefit of any SRO could not be extended in view of clear language of the said SRO---Under the Customs Act, 1969 duties were levied the moment goods were imported into Pakistan---Ex-bond bill of entry was filed on 18.11.1990, before the issuance of notification of SRO and also before 1.12.1990, therefore, the importer could not claim benefit under the SRO---For claiming the benefit under SRO, the crucial date was the date when the bill of entry was submitted and not the date when the goods crossed Customs barriers---Importer was rightly denied the benefit of SRO---Appeal was dismissed accordingly.

East and West Steamship Co. v. Collector of Customs PLD 1976 SC 618 and Pakistan Textile Mills Owners Association v. Administrator of Karachi PLD 1963 SC 137 ref.

Sardar Ahmad Jamal Sukhera, Advocate Supreme Court for Appellant.

Ahmar Bilal Soofi, Advocate Supreme Court for Respondent No.3.

Ex parte for remaining Respondents.

Date of hearing: 27th April, 2016.

2016 S C M R 1536

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---

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

----S. 497

2016 S C M R 1538

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Umar Ata Bandial, JJ

BABAR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.9-L of 2016, decided on 27th January, 2016.

(On appeal against the judgment dated 10-12-2015 passed by the Lahore High Court, Lahore in Crl. Misc. No. 13880-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Scope---Delay of more than two years in conclusion of trial---Even after lapse of two years, the conduct of an accused seeking adjournments could be taken note of and bail could be denied by a court even on the statutory ground.

Malik M. Afzal Farooqa, Advocate Supreme Court for Petitioner.

Rai Zamir ul Hassan, Advocate Supreme Court and Ms. Tasnim Amin, Advocate-on-Record for the Complainant.

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

Date of hearing: 27th January, 2016.

2016 S C M R 1540

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MUHAMMAD ASIF---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 4-L of 2016, decided on 4th February, 2016.

(Against the order dated 4-12-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15427-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 498---Sales Tax Act (VII of 1990), Ss. 2(37), 33(5), 33(8), 33(11-C), 33(12), 33(13) & 33(16)---Evasion of sales tax---Pre-arrest bail, grant of---Accused was director of a business concern and the allegation against him and his co-accused was that the record recovered from their business premises disclosed huge discrepancies pointing towards a wilful and deliberate evasion of the sales tax---Order-in-original passed by the competent authority fixing liability upon the accused was completely set aside by the Appellate Tribunal---Department had filed a Reference against order of Appellate Tribunal, which was pending before the High Court with no interim relief in favour of the Department---Present FIR was based upon a permission granted and a direction issued by the competent authority in Inland Revenue, which in turn was based upon the liability of the accused determined by the Department but if the said determination of the liability itself had been set aside (by the Appellate Tribunal) then the foundation of the present criminal case appeared to be shaken and in the absence of any determined or established liability of the accused insistence by the investigating agency upon arrest of the accused may smack of lack of bona fide on its part---Apart from that the allegations levelled against the accused required explanation of the record of his business concern and the accused was likely to be handicapped in his defence if he was taken into custody---Even if the accused was admitted to bail he still had to keep on joining the investigation if and when required to do so by the investigating agency and if he failed to do so then that may be considered to be a valid ground for seeking cancellation of his bail---Supreme Court clarified that if the Reference presently pending before the High Court was decided in favour of the Department and if the accused's liability was determined on the basis of the answer to the Reference even then the Department may have a basis to apply for cancellation of the petitioner's bail---Accused was admitted to pre-arrest bail accordingly.

Shahzada Mazhar, Advocate Supreme Court with Petitioner in person for Petitioner.

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

Umar Riaz, Advocate Supreme Court, Mrs. Tasneem Amin, Advocate-on-record with Respondent No.2 in person.

Date of hearing: 4th February, 2016.

2016 S C M R 1543

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

CIVIL PETITION NO. 892 OF 2015

(On appeal from the order dated 30-3-2015 in C.P. No.59/2010 passed by the High Court of Balochistan, Quetta)

AND

Civil Misc. Application No. 2087 of 2016

(Application for seeking time in materialization of Project with reference to Order dated 17-2-2016)

NADEEM AHMAD KHAN and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Local Government, Quetta and another---Respondents

Civil Petition No. 892 of 2015 and Civil Misc. Application No. 2087 of 2016, decided on 1st June, 2016.

Balochistan Local Government Act (V of 2010---

----Ss. 110 & 111---Property of Metropolitan Corporation rented out to a lessee/café owner---Increase in rent---Litigation between parties confined to determination of rent---Parties using pretext of pending litigation to enter into a compromise agreement where under the cafe was to be demolished and replaced by a multistoried (commercial) building---Legality---Held, that said agreement was completely beyond the purview of existing litigation, which was the determination of rent---Lessee and Metropolitan Corporation had used the pretext of the present petition to embark upon a venture for individual personal benefit---Cafe was the sole cafe used by the inhabitants of the city as well as the members of legal fraternity---Metropolitan Corporation did not consider the public interest of the inhabitants of the city---Agreement was also against the provisions of the Balochistan Local Government Act, 2010, and contravened impugned order of the High Court---No consent or approval could be accorded to such an agreement---Supreme Court remanded the case to the High Court accordingly.

Property in question was rented out to the lessee by the Metropolitan Corporation. Lessee was running a café at the property. Metropolitan Corporation enhanced the monthly rent from Rs. 6500 to Rs. 50,000. High Court in agreement with both parties ordered that cafe in question was the sole café used by the inhabitants of city as well as the members of legal fraternity, as such, the lessee shall improve the standard of plantation, food, crockery, fixtures and furniture etc., without structural change and further construction, and that, being a national asset, neither would be the café in question converted into commercial plaza, nor would the open space be reduced by further construction.

Lessee and Metropolitan Corporation entered into a (compromise) agreement whereunder the café was to be demolished and replaced by a multistoried building having a bakery, hotel, showrooms, halls and offices and the monthly rent payable to the Metropolitan Corporation would be Rs. 50,000. Said agreement was completely beyond the purview of existing litigation, which was the determination of rent. Both parties entered into the said agreement encompassing matters that were neither before the High Court nor had been raised before the Supreme Court. Said agreement was also in violation of the order of the High Court which had stipulated that the café would not be replaced by a "commercial plaza" nor would the open space be "reduced by further construction." Lessee and Metropolitan Corporation had used the pretext of the present petition to embark upon a venture for individual personal benefit.

If the agreement between lessee and Metropolitan Corporation was to be implemented it would undoubtedly further degrade the city's environment, add to congestion, increase pollution and deprive the people of the use and enjoyment of the only remaining café in the city. Cafe in question was the sole café used by the inhabitants of the city as well as the members of legal fraternity, as it was situated in front of the City Courts in a very congested part of the city. Supreme Court deprecated the attempt made by the parties to use the pretext of the present petition to enter into the purported agreement. Public interest of the inhabitants of the city which ought to be the foremost concern of the Metropolitan Corporation was unfortunately eclipsed by it.

Agreement also contravened the provisions of the Balochistan Local Government Act, 2010 particularly sections 110 and 111. Those in charge of the administration/management of the affairs of Metropolitan Corporation and its properties were themselves disregarding the provisions of the said Act.

No consent, permission or approval could be accorded to the agreement by the Supreme Court. In any event the said agreement was against the provisions of the Balochistan Local Government Act, 2010, contravened the order of the High Court and was against the public interest.

Consequently, with regard to the enhancement of rent Supreme Court transmitted present petition to the High Court, which was to be treated as a review application or one under section 12(2), C.P.C for decision in accordance with law.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Hadi Shakeel Ahmed, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record (absent) for Respondents.

Date of hearing: 24th May, 2016.

2016 S C M R 1549

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MEHMOOD ALI BHATTI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 16-L of 2016, decided on 4th February, 2016.

(Against the order dated 30-11-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.14162-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Police Order (22 of 2002), Art. 155(c)---Intentional lapses committed by police inspector during investigation to ensure advantage to the accused---Bail, grant of---Further inquiry---Heroin weighing 92 kilograms contained in 552 separate packets had been recovered from a vehicle ---Allegation against the accused-police inspector was that although the recovered heroin was contained in 552 separate packets yet he had secured only 92 samples from the recovered substance whereas he ought to have secured a separate sample from each of the recovered packets and it had also been alleged that there was a likelihood of pilferage of the remaining narcotic substance---Entire recovered substance had been re-sent to the Chemical Examiner for its analysis and during such exercise not only the weight of the recovered substance was found to be equal to the weight of the substance recovered according to the FIR registered in the case but the entire substance so recovered was also tested positive by the Chemical Examiner---Aspect of alleged lapses intentionally committed by the accused-inspector was yet to be attended to by the Trial Court on the basis of the evidence to be led before it and some of the alleged lapses may only amount to departmental irregularity--- Allegation regarding commission of intentional lapses required explanation of the record and the accused-inspector may be handicapped in his defence before the Trial Court if he was not admitted to bail---Challan had already been submitted in against the accused-inspector, whose physical custody was no longer required for the purposes of investigation---Accused-inspector was a public servant and there was little likelihood of his abscondance in case of admission to bail---Some of the offences allegedly committed in the present case were bailable whereas the remaining offences did not attract the prohibitory clause contained in S. 497(1), Cr.P.C.---Case against accused-inspector called for further inquiry into his guilt, therefore, he was admitted to bail.

Syed Zahid Hussain Bukhari, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab and Rana Ahsan Aziz, Deputy Director and Zyed Zubair, C.O. (Anti-Corruption Establishment) for the State

Date of hearing: 4th February, 2016.

2016 S C M R 1551

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Faisal Arab, JJ

Ch. HAMID HAMEED---Appellant

Versus

Barrister ABDULLAH MUMTAZ KAHLOON and others---Respondents

Civil Appeal No. 185 of 2015, decided on 10th May, 2016.

(On appeal against the judgment dated 12-3-2015 passed by the Election Tribunal, Rawalpindi in Election Petition No. 284 of 2013)

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

----S. 12(2)(f)---Nomination form---Non-disclosure of investment in a project---Whether concealment of asset---Allegation that returned candidate in his nomination form had concealed his ownership/interest in a mill---Returned candidate along with his other partners entered into a partnership agreement with the owner of a mill to convert the mill's land into plots for sale to the general public---Sale proceeds were to be shared amongst all the partners according to their respective shares---Ownership of the mill remained with its owners till finalization of the project---Whole transaction with regard to the sale of the plots was nothing but an investment in a project, object of which was materialized when plots were carved out, sold and transferred to the purchasers through execution of sale deeds---Returned candidate only made an investment along with his two other partners in a project which came to an end with the sale of the plots---Had the project failed even then the returned candidate would not have become owner of the land in question as in such eventuality he would have only claimed return of his investment plus damages and nothing more---Question of concealment of ownership in the mill thus did not arise and election of returned candidate could not have been declared to be void on grounds of concealment of assets---Appeal was allowed accordingly.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Appellant.

Dr. Babar Awan, Senior Advocate Supreme Court, Muhammad Hanif Khatana, Advocate Supreme Court and Syed Rifaqat Shah, Advocate-on-Record assisted by Farooq Awan, Advocate Supreme Court and Barrister Adil Kahloon for Respondent No.1.

Date of hearing: 10th May, 2016.

2016 S C M R 1554

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masud, JJ

HAIDER ALI and others---Petitioners

Versus

The STATE---Respondent

Jail Shariat Petition No. 13 of 2009, decided on 15th June, 2016.

(Against the judgment dated 6-4-2009 passed by the Federal Shariat Court, Islamabad in Criminal Appeals Nos. 4/K and 81/I of 2007 and Criminal Murder Reference No. 1/K of 2007)

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Penal Code (XLV of 1860), S. 34---Gang rape---Re-appraisal of evidence---Benefit of doubt---FIR was lodged with a delay of one day and the complainant had admitted before Trial Court that FIR had been lodged after consultations and deliberations---Alleged victim initially claimed that three persons had committed rape with her repeatedly in some bushes, but she changed her story during the trial and alleged that the incident took place in an under-construction house---Such change of the place of occurrence was irreconcilable pointing towards falsehood of the story---Medical evidence did not show any marks of violence on any part of victim's body despite an allegation that she was raped nine times by three persons---Doctor who medically examined the alleged victim clearly found that her hymen was old torn---Accused persons had not been nominated in the FIR and no test identification parade had been held under supervision of a Magistrate so as to positively incriminate the accused persons---Prosecution only relied upon identification of accused persons by the alleged victim before the Trial Court---During trial alleged victim had many opportunities to see the accused persons before they were statedly identified by her---Such identification was unsafe---No DNA test had been conducted nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to any of the accused persons---Accused persons were acquitted of the charge in such circumstances by extending them benefit of doubt.

(b) Criminal trial---

----Identification of an accused person before the Trial Court during the trial---Generally unsafe.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Muhammad Afzal alias Abdullah and another v. State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner No.1.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner No.2.

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

Date of hearing: 15th June, 2016.

2016 S C M R 1558

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302---

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

----S. 497---

2016 S C M R 1593

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MUHAMMAD SHAFI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No.76-L of 2016 and Criminal Miscellaneous Application No. 31-L of 2016, decided on 3rd February, 2016.

(Against the order dated 20-8-2015 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No.4279-B of 2015)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-i-amd, rioting, armed with deadly weapon, unlawful assembly and abetment---Bail, grant of---Further inquiry---Previous enmity---Probability of false implication---Admittedly both the accused persons were empty-handed during the incident in issue and they had not caused any injury to any person---Accused persons were elders of their co-accused who had fired at the deceased and there was a background of enmity between the parties based upon a previous murder---In such backdrop spreading the net wide by the complainant party so as to falsely entangle the accused persons in the present criminal case appeared to be a possibility which could not safely be ruled out---Investigation of the case had already been finalized, and challan had been submitted---Trial had commenced and statements of many prosecution witnesses had been recorded and, thus, physical custody of the accused persons was no longer required and their continued incarceration was not likely to serve any beneficial purpose---Case against the accused persons called for further inquiry into their guilt within the purview of subsection (2) of S. 497, Cr.P.C.---Accused persons were admitted to bail accordingly.

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

----S. 497(2)---Bail---Case of further inquiry into guilt of accused---Abscondment of accused---Effect---In a case calling for further inquiry into the guilt of an accused person bail was granted to him as of right and not by way of grace or concession---At times bail was refused to an accused person upon his having remained a proclaimed offender but at the same time it was equally true that such refusal of bail proceeded primarily upon a consideration of propriety---Whenever a question of propriety was confronted with a question of right the latter must prevail.

Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Ehsan Ullah v. The State 2012 SCMR 1137 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Petitioners.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for the Complainant.

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

Date of hearing: 3rd February, 2016.

2016 S C M R 1596

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Gift---

MWA/M-29/SC Appeal allowed.

2016 S C M R 1602

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

QAYYUM KHAN---Appellant

Versus

DIVISIONAL FOREST OFFICER, MARDAN and others---Respondents

Civil Appeal No. 1428 of 2015, decided on 25th February, 2016.

(On appeal against the judgment dated 15-9-2015 passed by the Peshawar High Court Peshawar, in R.P. No. 32-P of 2014 in W.P. No.2547-P of 2012)

Civil service---

----Project employee--- Contract appointment--- Regularization in service---Discrimination---Appellant was appointed as Wildlife Watcher (BS-05) in a project on contract basis---During the contract period of the appellant, the project was taken over by the Provincial Government, which converted the contract posts of Wildlife Watchers into permanent posts---Appellant, however, was not considered for appointment on permanent basis and his services were terminated---Legality---Appellant was appointed on contract basis after completion of all the requisite codal formalities---Appellant was not allowed to continue after the change of hands of the project---Provincial Government by cherry picking, appointed some other person in place of the appellant---Appellant was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis---Supreme Court directed that appellant shall be reinstated in service from the date of his termination and was entitled to the back benefits for the period he had worked with the project of the Provincial Government , and that the service of the appellant for the intervening period i.e. from the date of his termination till the date of his reinstatement shall be counted towards his pensionary benefits---Appeal was allowed accordingly.

Government of Khyber Pakhtunkhwa through Secretary, Agriculture v. Adnanullah and others Civil Appeal No.134-P of 2013 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court for Appellant.

Waqar Ahmed Khan, Additional A.-G. for Respondents Nos. 1 to 4.

Respondent No.5 in person.

Date of hearing: 25th February, 2016.

2016 S C M R 1605

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

MUHAMMAD SALEEM---Appellant

Versus

SHABBIR AHMED and others---Respondents

Criminal Appeal No.236-L of 2009, decided on 14th January, 2016.

(Against the judgment dated 30-9-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.1441 of 2004 and Murder Reference No. 637 of 2004)

Criminal trial---

----Murder---Appeal against acquittal---Reappraisal of evidence---Accused was alleged to have murdered his wife with the assistance of co-accused persons---Occurrence had taken place during a night and according to the FIR the culprits had remained unknown at the spot---FIR had been lodged by the complainant upon information supplied to him by the deceased's mother but the mother had not been able to identify any of the culprits at the time of the occurrence---Before the Trial Court deceased's mother had improved her version and had implicated accused, who was also her son-in-law and claimed that co-accused persons in connivance with the accused maneouvered the murder of deceased---No evidence had been produced before the Trial Court regarding hatching of any conspiracy by accused---Witness of last seen evidence was closely related to the complainant and to the deceased's mother and the conduct displayed by him was nothing but unusual detracting from the veracity of his statement---Witness before whom the accused allegedly made an extra-judicial confession made significant improvements before the Trial Court and had also made certain contradictory statements---Medical evidence produced by the prosecution was not of much avail because the murder in issue had remained unwitnessed---Weapon used in commission of crime had allegedly been recovered from a place which was open and accessible to all and, thus, it was unsafe to place reliance upon such recovery---Apart from that no one had seen accused firing at the deceased and, thus, mere recovery of a weapon of offence matching with a crime-empty was not sufficient to provide corroboration to the other pieces of circumstantial evidence---Whether weapon of offence had been kept in the mal-khana safely after its recovery and its dispatch to the Forensic Science Laboratory was not proved by any witness before Trial Court---High Court had rightly concluded that the prosecution had failed to prove its case against accused and co-accused persons beyond reasonable doubt and had, thus, acquitted them of the charge---Appeal against acquittal was dismissed by the Supreme Court accordingly.

Muhammad Qamar-uz-Zaman, Advocate Supreme Court for Appellant.

Rana Muhammad Anwar, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.4.

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

Date of hearing: 14th January, 2016.

2016 S C M R 1608

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Dost Muhammad Khan, JJ

Civil service---

2016 S C M R 1611

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

ABDUL HAMEED and others---Appellants

Versus

SPECIAL SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, LAHORE and others---Respondents

Civil Appeals Nos. 398-L to 405-L of 2010, 179-L to 183-L, 231-L, 424-L, 425-L of 2011, 17 to 23 of 2012 and C.M.As. Nos. 20-L, 41-L of 2011 and 99-L of 2012, decided on 9th March, 2016.

(On appeal against the judgment dated 17-5-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.1644, 1645/2016, 823, 830, 831/2008, 2691/2009, 2785/2005, 2859/2007, 2561, 2563 to 2566/2006, 987/2010, 2926, 2927/2010, 988/2010, 1786/2008, 3714 to 3717/2010 and 1271/2011)

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

----S. 16---Untrained teachers employed under a Scheme as temporary employees--- Regularization in service--- Entitlement to annual increments for the period before regularization---Appointment letter of the teachers in the present case and the terms and conditions propounded therein specifically mentioned that the service of the candidate would be governed under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Services of the teachers, in such circumstances, were to be governed under the Punjab Civil Servants Act, 1974---Section 16 of the said Act which dealt with pay would be relevant for the present case---When the salaries of the teachers, which they had received prior to their regularization/confirmation, were in accordance with law then they were entitled also to the annual increment on the basis of the same---No distinction could be drawn between the untrained and trained teachers---Teachers were entitled to receive full annual increments for the whole period prior to their regularization---Appeals were disposed off accordingly.

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

----S. 16--- Pay--- Ancillary privileges of pay---When a civil servant appointed to a post was entitled to the pay sanctioned for such post, then he would also be entitled to the ancillary privileges of such pay.

Mehmood Ahmed Qazi, Advocate Supreme Court for Appellants (in C.As. 398-L to 402-L of 2010).

Ch. Atta Ullah, Advocate Supreme Court for Appellants (in C.A. 403-L of 2010).

Khalid Waheed, Additional A.-G. for Appellants (in C.As. 404-L, 405-L/2010, 179-L to 183-L, 231-L, 424-L and 425-L of 2011 and 17-23 of 2012).

Khalid Waheed, Additional A.-G. for Respondents (in C.As. 398-L to 402-L of 2010).

Mian Jaffar Hussain, Advocate Supreme Court for Respondents (in C.A. 404-L of 2010).

Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents (in C.As. 179-L, 180-L, 182-L of 2011).

Respondents in person (in C.As. 231-L of 2011, 17 and 18 of 2012).

Mian Ghulam Rasool, Advocate Supreme Court for Applicants (in C.M.As. 20-L and 41-L of 2013).

Agha I.A. Imran, Advocate Supreme Court for the Applicants (in C.M.A. 99-L of 2012).

Nemo for Applicants (in C.M.A. 144-L of 2012).

Date of hearing: 9th March, 2016.

2016 S C M R 1617

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masood, JJ

MUHAMMAD ASHRAF---Appellant

Versus

The STATE---Respondent

Criminal Shariat Appeal No. 8 of 2007, decided on 13th June, 2016.

(Against the judgment dated 27-9-2005 passed by Federal Shariat Court, Islamabad in Jail Criminal Appeal No.122/I of 2003 and Criminal Murder Reference No.14/I of 2003)

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Penal Code (XLV of 1860), Ss. 302(b), 377 & 201---Zina-bil-jabr, qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Commission of rape and sodomy with the deceased or her murder or even concealment of her deadbody had not been seen by anyone---Prosecution witness claimed to have seen the deceased entering the shop of the appellant on the day of occurrence but in his cross-examination he had conceded that at the relevant time he was proceeding towards a destination and the shop of the accused did not fall on the route---Another prosecution witness claimed to have seen the accused going towards a forest while carrying a bag---Prosecution never established that the bag allegedly carried by the accused on that occasion contained a dead body---Besides the deadbody had not been found in a bag but was found lying in a forest---Accused allegedly made a judicial confession before a Magistrate but the same was retracted by him before the Trial Court and, thus, the said confession could not be relied upon in the absence of any independent corroboration---Prosecution made some recoveries of incriminating articles allegedly at the instance of the accused but the memoranda of such recoveries had dates tampered with and identification of the relevant articles was quite doubtful as the prosecution had failed to convincingly establish that the recovered articles actually belonged to the deceased---Case of the prosecution against the accused was primarily based upon suspicion---Accused was acquitted of the charge in such circumstances by extending him benefit of doubt---Appeal was allowed accordingly.

(b) Criminal trial---

----Standard of proof---Suspicion---Suspicion howsoever grave or strong could never be a proper substitute for beyond reasonable doubt proof required in a criminal case.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 13th June, 2016.

2016 S C M R 1619

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

NADEEM---Petitioner

Versus

The STATE and another---Respondents

Crl. P. No. 402-L of 2016, decided on 18th May, 2016.

(Against the order of the Lahore High Court, Lahore dated 21-3-2016 passed in Crl. Misc. No.13258/CB/2015)

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---Accused was alleged to have launched a murderous assault on complainant party---Police investigation found that although accused was present at the time of occurrence but he was empty handed---One of the co-accused also sustained firearm injuries during the incident, however this fact was not mentioned in the FIR---Chances of false implication of accused could not be ruled out in such circumstances---Furthermore challan had already been submitted in Trial Court---Accused was allowed pre-arrest bail accordingly.

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

----S. 498---Pre-arrest bail, recalling of---Grounds---In the absence of any evidence that the accused had tried to misuse the concession of bail or attempted to tamper with the prosecution evidence, it was not open to the court to recall bail already granted to an accused.

Munawar Iqbal Gondal, Advocate Supreme Court along with the Petitioner and Imtiaz A. Shaukat, Advocate-on-Record for Petitioner.

Shahid Azeem, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for the Complainant/Caveat.

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

Date of hearing: 18th May, 2016.

2016 S C M R 1621

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Umar Ata Bandial, JJ

DAUSA and others---Appellants

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Appeal No.1440 of 2007, decided on 16th June, 2015.

(On appeal from the judgment/order dated 16-5-2001 passed by Lahore High Court, Lahore, in Civil Revision No.713-D of 1989)

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

----O. VI, R. 17--- Supreme Court Rules, 1980, O. V, R. 2(8)---Pleadings, amendment of--- Principles--- Clerical mistake--- Date of creation of a mortgage deed incorrectly mentioned in the plaint---Amendment application filed before the Supreme Court for incorporating the correct date in the plaint---Amendment sought in the present case was of a formal nature, which did not alter the nature of the case pleaded by the plaintiffs and brought factual clarity and promoted fair adjudication of the controversy---Amendment was allowed accordingly.

Plaintiffs' mortgaged their land vide mortgage deed dated 22-12-1882. Corresponding mutation dated 05-05-1887 incorporated the mortgage in the revenue record. Plaintiffs filed suit wherein the date of mortgage deed was incorrectly mentioned as the year 1914 instead of 22-12-1882. Plaintiffs' claimed redemption of mortgage vide mutation dated 17-06-1913, which was rejected on the basis that mortgage could not be redeemed before it was created, therefore the case set up by the plaint was self-destructive.

Due to the incorrect date of creation of mortgage on the suit land mentioned in the plaint, a reasonable factual plea based on the redemption mutation was rendered futile. Registered mortgage deed and mutation were available on record and showed the correct dates as 22-12-1882 and 05-05-1887 respectively, which clarified any confusion in such regard and cured the contradiction in the suit. Moreover the mortgage deed dated 22-12-1882 was an admitted document by the Government and belonged to the official record. Amendment application filed by the plaintiff before the Supreme Court for incorporating the correct date of mortgage in the plaint did not alter the nature of the case pleaded by the plaintiffs. Prayer for incorporation of an undisputed fact was of a formal nature and brought factual clarity which promoted the fair adjudication of the controversy and the interest of justice. Amendment in the plaint was allowed in circumstances.

Ghulam Nabi v. Nazir Ahmad 1985 SCMR 824 and Secretary to Government of (West Pakistan) v. Abdul Kafil PLD 1978 SC 264 ref.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958) [since repealed]---

----S. 4---Suit land mortgaged by plaintiffs in favour of evacuee mortgagee (Provincial Government)--- Provincial Government purportedly resuming such land under the Displaced Persons (Land Settlement) Act, 1958 vide impugned mutation---Validity---Plaintiffs had brought no evidence on the record to establish their locus standi as the only successors of the three issueless redeeming mortgagors---Pedigree table of the redeeming mortgagors showed that the plaintiffs may have entitlement as collaterals of the redeeming mortgagors---However, the impleadment of all entitled successors of the redeeming mortgagors in the suit, the ascertainment of the veracity of the relevant entries in the cultivation column of Intikhab Misl Bandobast of the Mouza showing the possession of the mortgaged land with the successors of the redeeming mortgagors and deciding any third party interest that may have crept over the suit land would be necessary for adjudicating the title of the redeemed mortgaged land prayed in the suit---Since neither of the said aspects of the case had been dealt with by the courts below, it was appropriate that the matter be remanded to the Trial Court for deciding after allowing the parties to amend their pleadings, if desired, and leading fresh evidence---Supreme Court remanded the case to the Trial Court with the direction that the same was without prejudice to the fact that the impugned mutation, vide which Government resumed the land, was illegal and void according to the law declared in Samar Gul v. Central Government (PLD 1986 SC 35), and that the Provincial Government was entitled to hold the interest of evacuee mortgage in the suit land for which requisite correction shall be made in the relevant revenue record of Mouza in which the suit land was situated.

Samar Gul v. Central Government PLD 1986 SC 35 ref.

S.M. Tayyab, Advocate Supreme Court for Appellants.

Muddassar Khalid Abbasi, DAG Punjab and Zafar Iqbal, Patwari Halqa for Respondents Nos. 1-2.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents Nos. 4 - 10 and 13 - 16.

Ex parte for L.Rs of Respondents Nos.3, 11 and 12.

Date of hearing: 16th June, 2015.

2016 S C M R 1628

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Tariq Parvez, JJ

NAZEER AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 329 of 2010, decided on 1st June, 2016.

(Against the judgment dated 24-5-2010 passed by the Lahore High Court, Lahore in Criminal Appeal No. 489 of 2004 and Criminal Revision No. 371 of 2004)

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Co-accused was alleged to have held his deceased-wife by her arms, so as to allow his accused-brother to fire at and kill her---According to the prosecution story the accused and his co-accused allowed the complainant party to enter the house at the time of the alleged murder and witness the same---Such fact was rather unbelievable---Deceased-woman and the co-accused married each other against the wishes of the complainant party and had also been blessed with children---In such backdrop it was the complainant party which could have the motive to murder the deceased rather than the accused and co-accused---Prosecution eye-witnesses were not only very closely related to the deceased but were also chance witnesses and it could not be seriously doubted that they were also inimically disposed towards the accused and co-accused---Statements of said eye-witnesses had failed to receive any independent corroboration or support---Crime-empty secured from the place of occurrence was sent to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable---Medical evidence contradicted the ocular account in respect of the level of fire at the deceased---Post-mortem examination of deceased had been conducted with a noticeable delay giving rise to an inference that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution---Accused and co-accused were acquitted of the charge by extending them benefit of doubt---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd committed inside the confines of a house---Relatives of the deceased living in the same house failing to explain the cause of death---When a vulnerable dependant was done to death inside the confines of a house, particularly during a night, some part of the onus laid on the close relatives of the deceased to explain as to how their near one had met an unnatural death---Where however the prosecution utterly failed to prove its own case against any relative/accused there the accused could not be convicted on the sole basis of his failure to explain the death.

Arshad Mehmood v. The State 2005 SCMR 1524; Abdul Majeed v. The State 2011 SCMR 941 and Saeed Ahmed v. The State 2015 SCMR 710 ref.

Qari Abdul Rasheed, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab and Haroon, ASI for the State.

Date of hearing: 1st June, 2016.

2016 S C M R 1632

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Faisal Arab, JJ

MUHAMMAD YAQOOB NADEEM SETHI---Appellant

Versus

MUHAMMAD ILYAS KHAN and others---Respondents

Civil Appeal No.886 of 2014, decided on 30th May, 2016.

(On appeal against the judgment dated 16-6-2014 passed by Election Tribunal, Lahore in Election Petition No. 262 of 2013)

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

----S. 70(b)---Allegation of stuffing ballot boxes with bogus votes---Election Tribunal appointed Commission to inspect the election record and submit his report---Each and every ballot paper that was declared valid by the Commission contained the signatures and stamps of the Presiding Officers---Tally of counterfoils of the votes cast in the constituency stood at 92837 and corresponding to said figure, the number of votes polled were 92659---Difference was of merely 178 votes---Question of stuffing of ballot boxes with bogus votes, thus, did not arise---As the returned candidate's winning margin was 3982 votes, the difference of 178 missing votes would have made no impact on the final result---Except for the Commission's report the runner-up candidate did not present any other piece of evidence from which it could be gathered that the returned candidate or his agent or any polling staff indulged in bogus voting on the polling day---With regard to Commission's report, the runner-up candidate did not even seek verification of any set of ballot papers from the National Database and Registration Authority (NADRA)---Nothing substantial came on record which would have justified nullifying the election result---Appeal was allowed accordingly and order of Election Tribunal whereby it declared election as a whole to be void was set aside.

Muhammad Shahzad Shoukat, Advocate Supreme Court for Appellant.

Syed Hamid Ali Shah, Advocate Supreme Court for Respondent No.1.

Date of hearing: 30th May, 2016.

2016 S C M R 1635

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masud, JJ

SARFRAZ AHMAD---Petitioner

Versus

The STATE---Respondent

Jail Shariat Petition No. 4 of 2012, decided on 27th June, 2016.

(Against the judgment dated 19-12-2011 passed by the Federal Shariat Court, Islamabad in Criminal Appeal No. 22/I of 2009)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 12 & 17---Qatl-i-amd, kidnapping, zina-bil-jabar--- Reappraisal of evidence--- Benefit of doubt--- Alleged offences of kidnapping, commission of zina-bil-jabar and murder of deceased-minor had never been witnesses by anybody---Prosecution had failed to bring any direct evidence on record incriminating the accused vis-a-vis kidnapping, zina-bil-jabar and murder---Claim of complainant party that they had seen the accused throwing the body of deceased in a plot was hardly believable as accused had a whole night available to him to get rid of the dead body of deceased but he had not availed such opportunity and had allegedly chosen to throw it in a plot within the view of the members of the complainant party---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Accused was acquitted of the charge accordingly by extending him benefit of doubt---Appeal was allowed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 27th June, 2016.

2016 S C M R 1740

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 497---Khyber Pakhtunkhwa Explosive Substances Act (XXV of 2013), S. 5---

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

----Ss. 497 & 227---

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

----S. 497---

Khalid Javaid Gilan v. The State PLD 1978 SC 256 ref.

2016 S C M R 1744

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, CJ and Sh. Azmat Saeed, J

FEDERATION OF PAKISTAN through Secretary, Ministry of Foreign Affairs, Islamabad and others---Appellants

Versus

ALI NASEEM and others---Respondents

Civil Appeals Nos.6 and 724 of 2016, decided on 11th July, 2016.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 27-4-2015 passed in Appeal No.842(R)CS of 2009 and dated 10-6-2015 passed in Appeal No.799(R)CS of 2014)

Civil Servants Act (LXXI of 1973)---

----S. 2(1)(b)(ii)---Service Tribunals Act (LXX of 1973), Ss. 2(a) & 4---Financial Management at Missions Abroad, Vol. II, Chapt. IX, Cl. 9.1---Persons locally employed by Pakistani Missions Abroad---Temporary/contract employment---Such persons may be holding a civil post in connection with the affairs of the Federation, but they were not employed on regular basis through the usual procedure as prescribed for the appointment of civil servants under the Civil Servants Act, 1973 and the Rules framed thereunder---Such persons were appointed locally by the Heads of the Missions of Pakistan abroad purportedly in exercise of the powers conferred upon them by the instructions contained in Financial Management at Missions Abroad---Such instructions only permitted appointment of local staff on contract basis---Hence persons locally employed by Pakistani Missions Abroad were appointed on contract basis and were not civil servants---Such persons were not entitled to invoke the jurisdiction of the Federal Service Tribunal.

Respondents were locally employed by Pakistani Missions Abroad. Services of respondents were terminated. After rejection of departmental appeals filed by the respondents, both separately invoked the jurisdiction of the Federal Service Tribunal. Question was as to whether respondents were civil servants and hence could invoke jurisdiction of the Federal Service Tribunal. Respondents belonged to a specific category of employees of the Federation engaged and appointed locally in the Pakistani Missions abroad. Respondents may be holding a civil post in connection with the affairs of the Federation, but they were not employed on regular basis through the usual procedure as prescribed for the appointment of civil servants under the Civil Servants Act, 1973 and the Rules framed thereunder. They were not appointed through the Public Service Commission or the Selection Boards nor thereafter transferred to the Pakistani Diplomatic Missions. Such appointees were from a separate category of employees recruited locally by the Heads of the Missions functioning outside Pakistan.

Instructions found in Financial Management at Missions Abroad, Volume. II, Chapter IX, Clause 9.1 revealed that the recruitment of local staff by the Heads of Missions was only to be effected through employment contracts. The Heads of Missions did not appear to be authorized to recruit any local staff otherwise than on contract.

Documents relating to appointment of respondents indicated that the same were in consonance with the instructions contained in Financial Management at Missions abroad. The respondents had been employed locally through a contract of employment, containing a termination clause, which was generally alien to the terms and conditions of service of civil servants regularly appointed.

Respondents were appointed on contract basis. Hence, in view of section 2(1)(b)(ii) of the Civil Servants Act, 1973, the respondents were not civil servants, therefore, in view of section 4 read with section 2(1) of the Service Tribunals Act, 1973, they were not entitled to invoke the jurisdiction of the Federal Service Tribunal.

Nayyab Hassan Gardezi, Standing Counsel, Raja Abdul Ghafoor, Advocate-on-Record and Fayyaz Ahmed, AD (Legal) for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents (in C.A. No. 6 of 2016).

Mahmood A. Sheikh, Advocate-on-Record for Respondents (in C.A. No.724 of 2016).

Date of hearing: 11th July, 2016.

2016 S C M R 1754

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Maqbool Baqar, JJ

SAGHEER AHMED---Petitioner

Versus

The STATE and others---Respondents

C.Rs. Nos. 27-K and 28-K of 2016, decided on 4th July, 2016.

(Against the order dated 10-12-2015 passed in C.P. No. D-4710 of 2015 by High Court Bench at Sukkur)

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

----S. 6(2)(k)---Extortion of money (bhatta)---Anti-Terrorism court, jurisdiction of---Scope---In absence of any tangible material, mere allegation of demanding Bhatta did not attract S. 6(2)(k) of Anti-Terrorism Act, 1997---Averments of FIR in the present case were silent regarding the financial status and source of income of the complainant against which accused had been demanding 'bhatta'---Complainant had also not disclosed the specific dates, times and places of demanding 'bhatta' by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations---Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record showed that the offence had been committed on account of previous enmity with a definite motive---Alleged offence occurred at a bridge, which was not situated in any populated area, consequently, the allegations of aerial firing did not appear to be a case of "terrorism" as the motive for the alleged offence was nothing but personal enmity and private vendetta---Intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997---Consequently complainant had failed to produce any material before the Investigating Officer to establish that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area---Anti-Terrorism Court did not have the jurisdiction to hear the present case---Petition for leave to appeal was dismissed accordingly.

Fareed Ahmed Dayo, Advocate Supreme Court for Petitioner.

Zafar Ahmed Khan, Additional P.-G. Sindh for the State.

Ghulam Shabir Shah, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondents.

Date of hearing: 4th July, 2016.

2016 S C M R 1756

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Umar Ata Bandial and Maqbool Baqar, JJ

ZARAI TARAQIATI BANK LTD.---Appellant

Versus

MUHAMMAD ASIM RAFIQUE and others---Respondents

Civil Appeals Nos. 1255 and 1256 of 2012, decided on 30th June, 2016.

(Against judgment dated 11-9-2012 of the Lahore High Court, Multan Bench passed in ICAs Nos.104 and 105 of 2011)

Civil service---

----Zarai Taraqiati Bank---Regularization in service---Inequality of bargaining power, doctrine of---Applicability---Advertisement for post of "Management Trainee Officer" of Bank---Successful candidates offered contract job as 'trainees' instead of advertised 'regular posts'---Legality---Bank had no mandate to conduct training for any individual other than its employees---Entire process commencing with the advertisement in newspaper and ending with the final selection and posting of the respondents, was a process of appointment to the post of officer and out of a large number of successful candidates, only 30 were inducted, as there were only such number of vacancies, however, the Bank instead of issuing appointment letters to the respondents made them sign contracts, which were clearly in conflict with the bank's promise of job to the eligible and selected candidates---Respondents were posted at various places in the Bank as 'trainees' but were, entrusted duties and functions as were discharged and performed by officers of the Bank---Not confirming/regularizing services of respondents would be unfair---Fresh recruitment by the Bank in place of the respondents was also against the interest of the Bank as the same would be an expensive exercise in terms of time, money and effort---Respondents since their induction had been performing their job satisfactorily, and were acclimatized with the working of the Bank---Signing of contracts by respondents, could not be allowed to be used as an obstructive instrument in their way of confirmation/regularization, especially because of the non-equilibrium between the bargaining position of the respondents and the Bank---Appeal was dismissed accordingly.

Bank placed advertisement in a newspaper for the post of "Management Trainee Officer". Respondents applied, passed the written test and were selected after their interviews, however, instead of issuing appointment letters, the Bank offered them a contract for on the job training as "Management Trainee", for a period of two years. Instead of the word 'salary' word 'stipend' was used for their payment. Contract further provided that the same would not constitute employee/employer relationship between the trainee and the Bank; that training could be extended beyond the original period of two years, and that the training did not offer any guarantee of regular employment in the Bank. Upon expiry of their contracts after the prescribed period of two years, the contract of respondents were extended for a period of about seven months. However, neither was the employment of the respondents regularized nor were their contracts extended thereafter, and the Bank instead advertised vacancies for appointment in place of the respondents.

Applications that were invited by the Bank and made by the respondents were, "to fill the positions of MTOs for operations of the Bank in Finance and Accounts" and to catch the attention of the prospective candidates the phrase "Career for Management Trainee Officers" was printed on the top of the advertisement in bold letters. Further the offer/advertisement also promised "payment of competitive remuneration". In response to the advertisement, the appellant-Bank received 8392 applications which were short listed to 1942. The candidates were further short listed for written test and thus 231 candidates were put to such test. Candidate securing 45% and above marks in the test were to be considered eligible for interview, however, keeping in view the vacancy position, only 30 candidates were called for interview conducted by the Designated Committee. On the recommendations of the Committee, the competent authority decided that the respondents may be considered for selection in the Head Office and the fields, and after that they may be preferred for posting in concerned zone with high merit. Trainees were to be accepted for on job training, initially for a period of two years and were to be considered for regular appointment on expiry of the contract period upon satisfactory performance and availability of vacancies and further that in case any management trainee failed to join, the next candidate with high merit may be offered the position for posting. Respondents were also required to furnish medical fitness certificate issued by the authorized medical practitioners.

Entire process commencing with the advertisement in newspaper and ending with the final selection and posting of the respondents, was a process of appointment to the post of officer and out of a large number of successful candidates, only 30 were inducted, as there were only such number of vacancies, however, the Bank instead of issuing appointment letters to the respondents made them sign contracts, which were clearly in conflict with the bank's promise of job to the eligible and selected candidates.

Respondents were posted in different branches of the Bank as Grade-II Officers, and as managers also. They were assigned the functions such as of sanctioning of loan, negotiating financial facility with the customers, evaluating securities, and recovery of the finance granted to the customers, and thus were functioning and discharging their duties with powers and authority as could have been done by any other officer/employee of the said grade in the Bank.

Bank had not claimed that there has been any complaint or dissatisfaction regarding the performance of the respondents. On the contrary, their performance had admittedly been satisfactory, and they had admittedly worked sincerely. Good performance of the respondents and their utility was also evident from the fact that upon expiry of the initial period their contracts were extended for a further term of about seven months.

Bank has had no mandate to conduct training for any individual other than its employees. Bank's claim that the respondents were selected merely for training and not for employment was in conflict with, rather beyond its mandate.

In the facts and circumstances of the present case, it was unfair to not confirm services of respondents. It was also against the interest of the bank to indulge in a fresh exercise of recruitment in place of the respondents which by itself shall be an expensive exercise both in terms of time, money and effort and so would be the ensuing training. Respondents had since their induction been performing their job satisfactorily, they had been trained by and for the Bank and had become familiar and acclimatized with the working and atmosphere of the Bank.

As regards the signing of the contract by the respondents, in a situation where the respondents after having been selected for a promised post, were offered a contract instead, and there being no equilibrium between the bargaining position of the respondents and the Bank, and keeping in view the rate of unemployment in the country, the respondents had no option but to sign the contract in order to avoid further disappointments and frustration by exposing themselves to unemployment. Signing of contracts by respondents, therefore, could not be allowed to be used as an obstructive instrument in their way of confirmation/regularization. Appeal was dismissed accordingly.

Mian Muhammad Hanif, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Muhammad Suleman Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 16th February, 2016.

2016 S C M R 1763

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Tariq Parvez, JJ

SHAHBAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 315 of 2010, decided on 2nd June, 2016.

(Against the judgment dated 14-4-2010 passed by the Lahore High Court, Lahore in Criminal Appeal No.1402 of 2004 and Murder Reference No.867 of 2004)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Co-accused had been acquitted by the Trial Court and the role attributed to him by the eye-witnesses was identical to that attributed to the accused---Acquittal of co-accused had not been challenged by the complainant party or the State before the High Court---Acceptance of such acquittal on the part of the complainant party showed that the eye-witnesses produced by the prosecution were capable of falsehood---Accused had also sustained injuries during the incident but his sustaining of injuries had been completely suppressed by the prosecution---Version of the incident advanced by the accused had been established through the statement of the concerned doctor and the Medico-legal Report issued in respect of the accused's injuries---Alleged recovery of a chhurri from the custody of the accused was inconsequential because the recovered chhurri was not stained with blood---Post-mortem examination of the dead body of the deceased was noticeably delayed as the duration between death and post-mortem examination was recorded as about eleven hours---Time probably was consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside accordingly and he was acquitted of the charge by extending him benefit of doubt.

(b) Criminal trial---

----Evidence of eye-witnesses, reliance on---Scope---If certain eye-witnesses were disbelieved against some accused persons, who had been attributed effective roles, then the same eye-witnesses could not be relied upon to the extent of the other accused persons in the absence of any independent corroboration.

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

Mir Mohammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

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

Date of hearing: 2nd June, 2016.

2016 S C M R 1766

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Faisal Arab, JJ

RAFAQAT ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Misc. Application No.1290 of 2015 in Criminal Appeal No.167 of 2010, decided on 2nd June, 2016.

(On appeal against the judgment dated 7-7-2009 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.111-J of 2004, 259 of 2004 and M.R. No.188 of 2004)

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

----Ss. 302(b), 324, 148, 149, 337-F(i), 337-F(v), 369 & 460---Qatl-i-amd--- Reappraisal of evidence--- Accused and co-accused persons were identified by injured witnesses in court with details of their specific role--- Injured witnesses were receiving medical treatment at the time of identification parade, therefore, they could not be expected to participate in the identification parade---Medical evidence corroborated the ocular evidence---Accused, who made extra judicial confession on his arrest led to the recovery of weapon of crime---During investigation after the arrest of accused and in pursuance of the disclosures made by him, co-accused persons were arrested and recoveries were effected on their pointation---Recoveries (of weapons) effected on the pointation of the accused and co-accused persons wedded with the empties recovered from the place of occurrence in terms of Forensic Science Laboratory report---Eye-witnesses were inmates of the house thus their presence at the place of incident was natural---Occurrence took place during midnight but the eye-witnesses witnessed the whole episode in the light of an electric bulb---Prosecution had proved beyond doubt that the accused and co-accused persons entered the house of complainant party and brutally killed three people and injured two members of the family, with the common object to commit dacoity---High Court had already shown latitude in commuting the death sentence of the co-accused persons to imprisonment for life, while maintaining death penalty awarded to accused---Such conclusion of the High Court was in conformity with the established principles of administration of criminal justice---Appeal was dismissed accordingly.

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

----Art. 22--- Identification parade--- Eye-witness absent during identification parade but identifying accused before Trial Court---Propriety---If testimony of a witness qua identity of accused even in court inspired confidence and the witness was consistent on all material particulars and there was nothing in evidence to suggest that he was deposing falsely, in such circumstances, absence of witnesses during identification parade would not be fatal to prosecution case.

Ch. Anwar-ul-Haq Pannu, Advocate Supreme Court for Appellants Nos.1 and 2.

Muhammad Arshad Bhatti, Advocate Supreme Court for Appellant No.3.

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

Date of hearing: 2nd June, 2016.

2016 S C M R 1773

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman, Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

AASIA JABEEN and 3 others---Petitioners

Versus

LIAQAT ALI and others---Respondents

Civil Petitions Nos. 1136-L to 1139-L of 2016, decided on 14th July, 2016.

(Against judgments dated 23-2-2016 of Lahore High Court, Lahore, passed in Civil Revision No. 2644 of 2009 and Civil Revisions Nos. 42, 43 and 630 of 2010)

(a) Pre-emption---

----Suit for pre-emption---Pre-emptor given possession on basis of decree of High Court---Supreme Court setting aside decree passed by High Court---Effect---Restoration of parties to the same position as if no judgment and decree had been passed by the High Court---Principle of lis pendens, applicability of---Suit for possession through pre-emption was decreed by the High Court in terms of a compromise to the extent of 16 kanals 13 marlas of land ("disputed land") in favour of pre-emptor---High Court directed that vendee would continue to own and hold possession of the remaining land measuring 14 kanals 10 marlas---On appeal the decree passed by the High Court was set aside by the Supreme Court---Review petition filed by the pre-emptor was also dismissed by the Supreme Court by finding that the decrees obtained by the pre-emptor were incompetently passed (by the High Court) and for such reason they could not be sustained---Pre-emptor had sold disputed land to different purchasers during pendency of litigation before the Supreme Court---Vendee filed an application before Trial Court for restitution of possession of disputed land, which was contested by the pre-emptor and the purchasers of disputed land---Validity---Held, that pre-emptor had taken possession of disputed land through warrant dakhal and mutation which was sanctioned on the basis of the judgment and decree of the High Court---Once the judgment and decree of the High Court had been set aside by the Supreme Court, the entire superstructure built thereon fell to the ground and the parties were restored to the same position as if no judgment and decree had been passed by the High Court---None of the purchasers mentioned the date of their purchase in their written reply before the Trial Court nor when they appeared as witnesses---Purchasers could not claim that they were bona fide purchasers without notice because they knew all along that litigation was pending between the pre-emptor and vendee---Principle of lis pendens was applicable to the present case and any person who purchased the land during pendency of the proceedings before the Supreme Court or raised construction thereon did so at his own risk and cost---Right, title and interest of vendee in disputed land stood accepted and recognized by the Supreme Court, therefore, he had a right to be placed in the same position as if no decree had been passed by the High Court---Petition for leave to appeal was dismissed accordingly.

(b) Restitution---

----Principles---Restitution was ordered against the holder of a decree who had deprived the other party of some benefit on the basis of such decree---Upon variance or reversal of the decree, the Court called upon the decree holder to restitute the said benefit.

Fazal Karim v. Rawal Malik and another 1998 SCMR 1200 and Abdul Bari v. Muhammad Rasheed Khan 1995 SCMR 851 ref.

Sh. Naveed Shahryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 14th July, 2016.

2016 S C M R 1781

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Dost Muhammad Khan and Maqbool Baqar, JJ

Mst. NAILA KAUSAR and another---Appellants

Versus

Sardar MUHAMMAD BAKHSH and others---Respondents

Civil Appeal No.1213 of 2013, decided on 4th May, 2016.

(On appeal from the judgment dated 9-9-2013 of the Peshawar High Court, Abbottabad Bench passed in Civil Revision No.364-A of 2009)

(a) Power of attorney---

----Attorney, powers of---Scope---Attorney cannot utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal.

(b) Power of attorney---

----Attorney, powers of---Scope---Gift made by attorney---Power of attorney cannot be utilized for effecting a gift by the attorney without intentions and directions of the principal to gift the property, which intentions and directions must be proved on record.

Muhammad Munir Paracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants.

Khalid Rehman Khan Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.1 and 2.

Ex parte for Respondents Nos. 3 and 4.

Date of hearing: 4th May, 2016.

2016 S C M R 1784

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

CHIEF SECRETARY, SINDH---Appellant

Versus

RIAZ AHMED MASSAN and another---Respondents

Civil Appeal No.28-K of 2013, decided on 27th April, 2016.

(Against judgment dated 22-10-2012 passed by Sindh Service Tribunal at Karachi in Appeal No.13 of 2012)

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

----R. 8(4)---Sindh Civil Servants (Departmental Examinations) Rules, 1978. R. 5---Civil servant---Confirmation to post---Departmental examination---As per R. 8(4) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, it was responsibility of the civil servant to undergo 6 months' training and appear in required qualifying exams within 15 months, to earn confirmation to his post---In terms of R. 5 of the Sindh Civil Servants (Departmental Examinations) Rules, 1978, it was not the duty of the controlling/ appointing authority to issue any reminder, explanation call or show cause notice etc. directing any civil servant to appear in the qualifying exams.---Rule 5(2) of the Sindh Civil Servants (Departmental Examinations) Rules, 1978 cast responsibility on the shoulder of the civil servant desiring to appear in the examination to give intimation in a prescribed manner to the examining authority directly or through appointing authority not later than 15 days before the date scheduled for such examination---Controlling/appointing authority could not be burdened with the responsibility for issuing any reminder, explanation call, show cause notice, etc directing a civil servant to appear in examination to qualify.

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

----R. 8(4)--- Civil servant--- Confirmation to post--- Departmental examination--- Consequence for not qualifying the required exams per R. 8(4) of Executive Branch Rules, 1964 was that the civil servant, so appointed shall not be confirmed to the appointed post unless he qualified the prescribed examination.

(c) Civil service---

----Promotion---Civil servant promoted belatedly for no fault on his part---When promotion of such civil servant to next higher grade was effected then his promotion and seniority was to be counted and reckoned with his contemporary junior officers who were promoted earlier to him.

(d) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----R. 13---Deferment of promotion---Grounds---Proforma promotion---Scope---Civil servant not promoted on his turn on the ground that either his seniority was under dispute or was not determined; or, he was on deputation, training or on leave; or disciplinary proceedings were pending against him; or he was not considered by the selection authority inadvertently---When dispute as to seniority of such civil servant was resolved in his favour; or his deputation, training or leave was over; or disciplinary proceedings culminated in his favour, or where inadvertence for not considering his promotion was remedied, only then on subsequent promotion, such civil servant would rank and be deemed to have been promoted in the same batch at par with his contemporary batchmates who were promoted earlier to him.

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

----Rr. 2 & 7-A---Civil Service Rules, 1950, Vol.1, R. 31---Antedated promotion---Scope---As a general rule promotion took effect from the date on which a civil servant assumed the charge of higher post---Only exception to grant antedated promotion by the competent authority to a superannuated or deceased civil servant, was provided under R. 7-A of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18-3-2006)---Where a civil servant who was in fact recommended for promotion to next high post by the Provincial Selection Board or the Departmental Promotion Committee as the case may be but before issuance of his notification for promotion, such civil servant either passed away or retired, in such eventuality pre-condition to assume charge as mandated under R. 31 of Civil Service Rules (1950), Vol. 1 was done away under R. 7-A (2) of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 (with effect from 18-3-2006).

Mukesh Kumar, Additional A.-G. Sindh, M. Kassim Mirjat, Advocate-on-Record and Ghulam Ali Brahmani, Additional Secretary, S&GAD, Sindh for Appellant.

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

Date of hearing: 27th April, 2016.

2016 S C M R 1792

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 497---

Manzoor v. The State PLD 1972 SC 81 and Amir v. The State PLD 1972 SC 277 ref.

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

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 46---

Khan Meer v. Amal Sheren PLD 1989 SC 1987 ref.

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

----S. 497---Penal Code (XLV of 1860), S. 302---

2016 S C M R 1821

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman, Manzoor Ahmad Malik and Ijaz-ul-Ahsan, JJ

Lt. Col. NASIR MALIK---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No. 1428-L of 2016, decided on 14th July, 2016.

(On appeal against the order dated 30-3-2016 passed by the Lahore High Court, Lahore, in W.P. No.7222 of 2016)

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

----S. 5---Appeal, filing of---Condonation of delay---Sufficient cause---Counsel for appellant out of country for performance of Hajj---Appeal was filed with a delay of 144 days---Each day of delay had to be explained---Delay in filing present appeal was not 30/40 days during which Hajj was performed, rather it was a delay of 144 days, therefore, the Appellate Court had rightly dismissed the appeal on limitation.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 151---Maintenance allowance for minors, enhancement of---Family Court, powers of---Scope---Order for maintenance allowance for minors was passed by Family Court---Mother of minors sought enhancement in maintenance allowance through filing an application under S. 151, C.P.C. before the Family Court---Objection of father that enhancement in maintenance allowance could only be sought by filing a separate suit---Validity---Provisions of Civil Procedure Code, 1908 were not stricto sensu applicable to the proceedings under the Family Courts Act, 1964, as such the Family Court was competent to adopt its own procedure---Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith---Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S. 151, C.P.C.) and if necessary make alteration in the rate of maintenance allowance--- Objection was rejected accordingly.

M. Abdus Sattar Chughtai, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Aish Bahadur Rana, Advocate Supreme Court for Respondents Nos.2 - 4.

Date of hearing: 14th July, 2016.

2016 S C M R 1827

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Faisal Arab, JJ

MUHAMMAD HASHIM BABAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.113 of 2016, decided on 9th June, 2016.

(On appeal against the judgment dated 15-12-2015 passed by the Lahore High Court, Lahore in Criminal Revision No.644 of 2011)

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Acquiring assets beyond known sources of income---Order for confiscation of property in favour of Federal Government---Order was maintained upto the Supreme Court---Finality of order---Accused was convicted and awarded three years' rigorous imprisonment with fine and his share in a property was ordered to be confiscated in favour of Federal Government---Accused contended that he having completed his sentence of imprisonment and paid the fine, the confiscated share in property be ordered to be released---Validity---Accused could not initiate another round of litigation to seek recall of such order of confiscation of property passed in the earlier round of litigation, as the same would amount to seeking nullification of the decision of the Supreme Court and showing disrespect to the outcome of a legal proceeding that had attained finality.

Allegation against the accused was that he has acquired assets beyond his known sources of income. Such assets included one half share in a house. Accused was awarded three years' rigorous imprisonment, with a fine of Rs.2 million. Further his share in the house was confiscated in favour of the Federal Government. Matter of sentence, fine as well as confiscation of half share in the house attained finality after proceedings reached up to the Supreme Court. After serving out his sentence and paying the fine, accused moved an application before the Accountability Court taking the plea that as he had completed his sentence of imprisonment and also paid the fine, the property that was ordered to be confiscated may be ordered to be released and his title to the house be restored. Punishment that was awarded to the accused in the earlier proceedings was maintained upto the Supreme Court, therefore it was too late in the day to seek reversal of the same. Once the matter had attained finality and having failed to obtain decision for recall of the order of confiscation of the house in the proceedings that reached upto the Supreme Court, the matter came to rest forever. Accused thereafter could not initiate another round of litigation to avoid a penalty which was awarded to him in the earlier round. Such conduct would amount to seeking nullification of the decision of the Supreme Court.

Abdul Majid v. Abbas Hussain Shah 1995 SCMR 429 ref.

Supreme Court warned the accused and his counsel not to indulge in such type of litigation in future as the same amounted to showing disrespect to the outcome of a legal proceeding that had attained finality, and also conveyed its displeasure to the counsel who represented the accused before the courts below in the second (i.e. present) round of litigation, so that they may be careful in future and avoid any adverse impact on their professional career.

Shah Khawar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nasir Mehmood Mughal, Special Prosecutor, NAB for the State.

Date of hearing: 9th June, 2016.

2016 S C M R 1831

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

ABID MEHMOOD and others---Petitioners

Versus

NOOR MUHAMMAD and others---Respondents

Civil Petition No. 1251-L of 2015, decided on 18th May, 2016.

(On appeal from the judgment dated 14-4-2015 of the Lahore High Court, Multan Bench, Multan passed in C.R. No.534-D of 1999)

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

----S. 23---Contract Act (IX of 1872), S. 45---Agreement to sell---Co-vendees---Specific performance of an agreement to sell at the instance of some (and not all) of the co-vendees/joint-promisees---Principles---Vendees jointly filed suit for specific performance of agreement to sell---Some of the co-vendees, who were non-signatory to the agreement to sell, compromised with the vendor---Whether agreement to sell would stand frustrated by such compromise---Perusal of S. 23 of the Specific Relief Act, 1877 made it manifest that any one out of several joint-promisees could sue for specific performance of the agreement---However, a plaintiff joint-promisee must make the disinterested promisees as defendants in the suit---To enforce an agreement to sell against the promisor a plaintiff/joint-promisee must establish his readiness and willingness to perform the entire bargain agreed in the contract---Unless expressly agreed otherwise in the contract, the non-cooperation or opposition of other joint-promisees for the enforcement of the contract could not prejudice enforceability of the contract between the parties so long as its terms were fully performed---Accordingly, the agreement to sell would not stand frustrated by the opposition of the non-signatory and disinterested co-vendees---Petition for leave to appeal to Supreme Court was dismissed accordingly.

Jaffar Khan v. Muhammad Achar PLD 1961 Kar. 335; Ziaulkhalique v. Tanveer Ismail 1989 MLD 3940; Sher Muhammad v. Ali Muhammad 1986 MLD 597 and Muhammad Ishaq v. Sufia Begum 1992 SCMR 1629 ref.

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

----S. 12---Suit for specific performance of agreement to sell---Financial ability of vendee to pay balance consideration---Request by the plaintiff/vendee for time to deposit the requisite amount of Court fee---Contention was that such a request by the plaintiff/vendee was proof of the vendee's inability to arrange funds for meeting their financial obligations under the agreement to sell---Validity---Such contention was misconceived---Grant of time requested in the plaint was of a procedural nature available under the law for fulfilling the procedural conditions for mobilizing a suit before a Trial Court--- Grant of time by the Trial Court neither concerned nor affected the substantive merits of the claim made in the suit wherein no order for deposit of balance price was passed by the Trial Court---Petition for leave to appeal to Supreme Court was dismissed accordingly.

Fakhar-uz-Zaman Akhtar Tarar, Advocate Supreme Court for Petitioners.

Muhammad Hussain Awan, Advocate Supreme Court and A.H. Masood, Advocate-on-Record (Absent) for Respondents.

Date of hearing: 18th May, 2016.

2016 S C M R 1836

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Faisal Arab, JJ

MUSHTAQ ALI---Petitioner

Versus

MULTAN KHAN and others---Respondents

Civil Petition No. 3716 of 2015, decided on 10th March, 2016.

(On appeal from the judgment dated 20.10.2015 of the Lahore High Court, Multan Bench, Multan passed in C.R. No. 464 of 2000)

(a) Constitution of Pakistan---

----Arts. 203D(3), 203-F & 264---Federal Shariat Court---Declaration of law as repugnant to injunctions of Islam by Shariat Appellate Bench of Supreme Court---"Cease to have effect" as used in Art. 203D(3) of the Constitution---Meaning---Expression "cease to have effect" in the context of the Art. 203D did not mean the same as the expression "repeal" under Art. 264 of the Constitution---With effect from the date fixed by the Shariat Appellate Bench of Supreme Court for a repugnant law to cease to have effect, the ordinary incidents following from the repeal of a law were neither attracted nor followed---Accordingly, from the date of effectiveness of such a declaration, no accrued right nor incurred liability under the repugnant law could survive past the date of effectiveness of the declaration made under Art. 203D of the Constitution.

Jannat-ul-Haq v. Abbas Khan 2001 SCMR 1073 ref.

(b) Islamic law---

----Pre-emption---Suit for pre-emption filed during the interregnum period (commencing 01.08.1986 until 28.03.1990)---Plaint lacking the requisite details of date, time and venue for the pronouncement of the Talb-i-Muwathibat---Effect---Any rights or liabilities created under the Punjab Pre-emption Act 1913 could not survive past the date fixed in the case of Government of N.W.F.P v. Said Kamal Shah (PLD 1986 SC 360), namely 31.07.1986---Suit filed during the interregnum, commencing 01.08.1986 until 28.03.1990 [where-after the Punjab Pre-emption Ordinance (V of 1990) dated 29.03.1990 was enforced] the classic Islamic law governed the right of pre-emption---Hence, the rule of specification of particulars of Talb-i-Muwathibat under the classic Islamic law applied to a pre-emption suit filed during the interregnum period.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and Safia Begum v. Ibrahim PLD 1989 SC 314 ref.

Sardar Muhammad Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Gul Zarin Kayani, Senior Advocate Supreme Court for Respondents.

2016 S C M R 1916

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

AZHAR HAYAT---Petitioner

Versus

KARACHI PORT TRUST through Chairman and others---Respondents

Civil Petition No. 261-K of 2016, decided on 16th June, 2016.

(On appeal from the judgment dated 22.03.2016 in C.P. No. D-696 of 2015 passed by the High Court of Sindh, Karachi)

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

----O. XXIII, R. 1(3)--- Constitution of Pakistan, Art. 199---Constitutional petition before High Court withdrawn as not pressed---Subsequent suit on the same subject filed without permission of court---Whether petitioner should be non-suited for not obtaining permission of court to file fresh suit---Petitioner had filed Constitutional petition before the High Court which was "not pressed"---Few days later petitioner filed a suit before the High Court on the same subject matter, which was converted into a Constitutional petition by the court---Held, that petitioner should have been non-suited because O. XXIII, R. 1(3), C.P.C stipulated that where the plaintiff withdrew from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim, he would be precluded from doing so.

(b) Civil service---

----Permanent absorption of an officer of the Armed Forces into a Government department---Scope---Petitioner, who was a serving naval officer was seconded to Karachi Port Trust ("KPT") as its General Manager (Operations) for a period of three years---Petitioner retired from the Navy during his service in KPT---Whether permanent absorption of petitioner in KPT was permissible---Paragraph 2(a) of No.4/85 of the Joint Services Instructions and Serial No.214, Part V, Chapter 2 of Volume I of the Estacode stipulated that officers may be seconded to a government department for a period of up to three years and only in exceptional circumstances such period could be extended by another year---Paragraph 2(b) of No.4/85 of the Joint Services Instructions, which provided for permanent absorption was not a self-executing provision; as an incumbent had to seek his retirement from his parent service, which in the case of the petitioner was the Navy---Petitioner neither sought early retirement from the Navy nor had retired from the Navy before the due retirement date in order to be considered for permanent absorption in KPT---Since the petitioner did not seek his retirement from the Navy nor was prematurely retired therefrom the question of his permanent absorption in the civil cadre/KPT would not arise--- Notification whereby petitioner was re-employed in KPT stated that he was "re-employed on contract basis", which was not only incompatible but also destructive of the petitioner's contention that he was permanently absorbed in KPT---Further Serial No. 231, Part V, Chapter 2 of Volume I of the Estacode, provided that a 'High Power Selection Board' shall select/induct/ re-employ officers of Armed Forces in civil posts---Petitioner had also failed to show that such a Selection Board had selected him, therefore, his contention that he was properly appointed in KPT, let alone permanently absorbed therein had not been established---Petitioner had been appointed on contract for a specific term and upon expiry of the stipulated term he had no right to claim any further extension, let alone contend that he had been permanently absorbed in KPT---Petition for leave to appeal was dismissed accordingly.

Farrukh Zia Sheikh, Advocate Supreme Court and Abdul Aziz Khan, Advocate-on-Record for Petitioner.

Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Respondents Nos. 1 and 2.

2016 S C M R 1925

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Khilji Arif Hussain, JJ

MUHAMMAD SABIR AWAN through LRs. and others---Petitioners

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI---Respondent

Civil Petition No. 162-K of 2016, decided on 4th August, 2016.

(On appeal against the order dated 29.10.2015, passed by the High Court of Sindh at Karachi in High Court Appeal No. 111 of 2005)

Agreement to sell---

----Oral agreement---Proof---Record indicated that agreement to sell was entered into by the purchaser's brother with the seller, with the assistance of a broker---Neither the agreement or its terms had been brought on record nor the purchaser's brother or the broker were produced in evidence---Alleged receipt of payment of consideration amount was not produced in evidence before the Trial Court and did not form part of the record of the original suit---Oral agreement to sell, thus, did not stand proved---Petition for leave to appeal was dismissed accordingly and leave was refused.

Abdul Qadir Khan, Advocate Supreme Court for Petitioners.

Nazar Hussain Dhoon, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Mushtaq A. Memon, Advocate Supreme Court for Respondent No.3 (i - vi).

2016 S C M R 1926

[Supreme Court of Pakistan]

Present: Faisal Arab and Khilji Arif Hussain, JJ

Messrs CARPET CENTRE---Petitioner

Versus

MUSTAFA FARABI TAPU JAVERI and others---Respondents

Civil Petition No. 79-K of 2016, decided on 30th March, 2016.

(On appeal against the judgment dated 13.11.2015 passed by the High Court of Sindh, Karachi in C.P. No. S-887/2010)

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

----S. 15(2)(vii)---Commercial premises---Eviction order---Bona fide personal need of landlord---Premises required for setting up a photo studio---Contention of tenant that personal need of landlord was not established in as much as landlord had claimed that he was a professional photographer but had given a contradictory statement in evidence that he adopted photography as a hobby, and that the landlord was already running a photo studio---Validity---Personal need of landlord was duly explained in a very categorical manner by stating that he came from a family of jewelers but he had adopted the profession of photography and wanted a commercial premises to set up his own studio---Statement of landlord that he already had a studio, did not mean that such studio was in some commercial premises---No question in cross-examination was put to the landlord to suggest that he already had a commercial premises where he had set up a photo studio---In such circumstances the failure to establish in evidence mala fide on part of the landlord was sufficient to direct eviction of tenant from the commercial premises---Petition for leave to appeal was dismissed accordingly.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2016 S C M R 1928

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Tariq Pervez, JJ

MUHAMMAD AZHAR alias AJJA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.01 of 2016, decided on 2nd March, 2016.

(Against the judgment dated 09.04.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 327 of 1997 and Murder Reference No.119 of 1997)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Motive unproved---Recovery of weapon inconsequential in absence of crime empties---Age less than 18 years at time of incident---Imprisonment period about 22 years---Motive set up by the prosecution had not been established by it through any concrete evidence and the allegation levelled by the prosecution in that respect had failed to travel beyond a mere verbal assertion---No date or time of the alleged incident forming the motive had been specified by any of the prosecution witnesses nor any such incident had ever been reported to the police or to any other authority---Alleged recovery of a firearm from the accused's custody during the investigation had remained legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the murder in issue---Case record indicated that the accused was less than eighteen years of age at the time of the occurrence and, thus, he could not have been sentenced to death---Accused had also remained behind bars in connection with the present case for the last about 22 years, and if normal remissions admissible to a convict sentenced to imprisonment for life were to be counted towards his sentence then the accused must have served a period of imprisonment by now which was more than a normal sentence of imprisonment for life---Conviction of accused under S. 302(b), P.P.C. was maintained, however death sentence awarded to him was reduced to imprisonment for life---Appeal was disposed of accordingly.

Hassan and others v. The State and another PLD 2013 SC 793; Dilawar Hussain v. The State 2013 SCMR 1582; Khalid Iqbal and 2 others v. Mirza Khan and others PLD 2015 SC 50 and Muhammad Arshad v. The State 2015 SCMR 258 ref.

Ch. Ali Muhammad, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State.

2016 S C M R 1931

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam, Maqbool Baqar, Faisal Arab and Khilji Arif Hussain, JJ

Shaikh MUHAMMAD NASEEM---Appellant

Versus

Mst. FARIDA GUL---Respondent

Criminal Appeal No. 04-K of 2012, decided on 22nd July, 2016.

(On appeal against the judgment dated 30.09.2011 passed by the High Court of Sindh, Karachi in Cr. Revision Application No. 07/2011)

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

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act, 2005---Offenders that could be prosecuted under the Illegal Dispossession Act, 2005 could not be restricted to only those who possessed the credentials and antecedents of 'land grabbers' or 'Qabza Group'---Provisions of S. 3 of the Illegal Dispossession Act, 2005 clearly demonstrated that whosoever committed the act of illegal dispossession, as described in the said Act against a lawful owner or a lawful occupier, he could be prosecuted under its provisions without any restriction. [Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) held to be good law]---[Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah v. Abdul Manan (2012 SCMR 1533) declared to be not good law].

Provisions of section 3 of the Illegal Dispossession Act, 2005 described the offence of Illegal possession of property exhaustively but did not describe the offenders in specific terms. On the contrary, said section used the general terms 'no one' and 'whoever' for the offenders. Use of such general terms clearly indicated that the widest possible meaning was attributed to the offenders.

Terms such as 'Land grabbers', 'Qabza Mafia' or 'Qabza Group' identifying a specific category of offenders had not been used in the Illegal Dispossession Act, 2005. The term 'property grabbers' appearing in the Preamble of the said Act had been used in general sense, it could not be identified with any particular category of offenders in order to restrict the scope and applicability of the Illegal Dispossession Act, 2005 to a particular category of offenders.

Provisions of section 3 of the Illegal Dispossession Act, 2005 clearly demonstrated that whosoever committed the act of illegal dispossession, as described in the said Act against a lawful owner or a lawful occupier, he could be prosecuted under its provisions without any restriction.

Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254 and Shahabuddin v. The State PLD 2010 SC 725 held to be good law.

Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 and Habibullah v. Abdul Manan 2012 SCMR 1533 declared to be not good law.

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

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act, 2005---Maintainability---Civil litigation with regard to illegal dispossession from immoveable property pending in court between the parties---Irrespective of any such civil litigation that may be pending, where an offence, as described in the Illegal Dispossession Act, 2005, had been committed, the proceedings/complaint under the said Act could be initiated as the same would be maintainable in law. [Findings in Zahoor Ahmed v. The State (PLD 2007 Lahore 231) and Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) were held to be not sustainable in law].

Any Act which entailed civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005, a person could be tried under both kinds of proceedings, which were independent of each other. Once the offence reported in the complaint stood proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he could not escape punishment on the ground that some civil litigation on the same issue was pending adjudication between the parties.

Irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, had been committed, the proceedings under the said Act could be initiated as the same would be maintainable in law.

Zahoor Ahmed v. The State PLD 2007 Lah. 231 and Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 held to be not sustainable in law.

Nemo for Appellant.

Abdullah A. Munshi, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Respondent.

Shahdat Awan, P.G. for the State.

2016 S C M R 1961

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Gulzar Ahmed and Tariq Parvez, JJ

ENGINEERS STUDY FORUM (REGISTERED) and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Review Petition No. 142 of 2015 in Constitutional Petition No. 104 of 2011, decided on 24th August, 2016.

(For review of judgment dated 08.01.2015 passed by this Court, in Constitution Petition No. 104 of 2011 etc.)

(a) Administration of justice---

----Audi alteram partem, principle of---Scope---While hearing a case before it, the Court had to keep into consideration the well enshrined and celebrated principle of Audi alteram partem i.e. no man should be condemned unheard---However the Court was not bound to give indefinite hearing to the counsel appearing for a party before it nor the counsel could claim privilege of hearing him by the Court to his heartfelt satisfaction---Court had to regulate hearing of the matters fixed before it and at the same time to ensure that it had given adequate time to the counsel for hearing in a given case---Question as to what was the adequate time for hearing of a given case, it was not for the counsel appearing for a party before the Court to decide rather it was more a function of the Court---Counsel for a party would not be allowed to be heard infinitum or to his heartfelt satisfaction.

(b) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Review by the Supreme Court---Grounds---Supreme Court had the power to review its own judgment where errors in the judgment/order under review were self-evident and floating on the surface of record and had material bearing on the final result of the case.

(c) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Review by the Supreme Court---Scope---Review jurisdiction of the Supreme Court did not allow re-hearing of a decided case by the Supreme Court more so when the Supreme Court had given conscious and deliberate decision on the point of law as well as of fact while disposing of the judgment under review---Similarly, the grounds not urged or raised at the time of hearing of the judgment under review could not be allowed to be raised in the review proceeding.

A.K. Dogar, Senior Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Petitioners.

Nemo for Respondents.

2016 S C M R 1965

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Sardar Tariq Masood, JJ

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

----S. 9---

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

----S. 9---

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

----Ss. 9 & 18---

2016 S C M R 1970

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Faisal Arab, JJ

Haji KHAN BHATTI---Petitioner

Versus

PROVINCE OF SINDH through Provincial Election Commission and others---Respondents

Civil Petition No. 367-K of 2016, decided on 28th August, 2016.

(On appeal against the judgment dated 03.06.2016 passed by the High Court of Sindh, Sukkur in C.P. No. D-2199 of 2016)

(a) Sindh Local Government Act (XLII of 2013)---

----S. 35(1)(c)---Local Government elections---Members of District Council---Directly elected candidates---Reserved seat candidates---Eligibility for nomination---Mandate of S. 35(1)(c) of the Sindh Local Government Act, 2013 was that where a member was to be directly elected from a Ward of a Council then unless he was an enrolled voter of that very Ward, he could not be a candidate from that particular Ward, the reason being that in case of direct election on the basis of adult franchise, every Ward of a Council should have its own representative on the Council---Such was precisely the object with which Wards had been created---Where a member was to be indirectly elected on a reserved seat of a Council by its electoral college then unless he was an enrolled voter of any of the Wards falling within the local limits of that Council, he would not be qualified to contest the election, the reason being that every member who was to be indirectly elected on a reserved seat of a Council should be an enrolled voter of the area which fell within the constituency of that very Council---Representation on a reserved seat had to be from the local limits of that very Council and not from outside its area---No person could seek his election on a reserved seat of a Council unless he was enrolled as a voter in the electoral rolls of any of the Wards that fell within the limits of such Council---One who was not enrolled as a voter in any locality of Council's constituency, could not be regarded as a true representative of that Council and, therefore, had not been allowed to be a candidate for its reserved seat by virtue of the provisions of S.35(1)(c) of the Sindh Local Councils Act, 2013---Where a member was to be directly elected from a Ward, his enrollment in that particular Ward was a mandatory requirement and where a member was to be indirectly elected, his enrollment in the local limits of that very constituency of the Council was a mandatory requirement.

(b) Sindh Local Government Act (XLII of 2013)---

----Ss. 15(b)(ii) & 35(1)(c)---Sindh Local Councils (Election) Rules, 2015, R. 50(1)---Local Government elections---Reserved seat for District Council, rural---Eligibility for nomination---Voter of Council in urban area of a District, on account of the restriction contained in S. 35(1)(c) of the Sindh Local Government Act, 2013, could not stand as a candidate on the reserved seat of District Council, which under S. 15(b)(ii) of Sindh Local Government Act, 2013 was constituted purely for rural area of a District.

As the constituency of a District Council under section 15(b)(ii) of Sindh Local Government Act, 2013 was rural area of a District only and not beyond that, a candidate on its reserved seat must be an enrolled voter of any of the Wards falling in the rural area of the District. Only such candidate would qualify to contest election on a reserved seat and not the one who was an enrolled voter of a Council from urban area of the District. The electoral college of any Council did not enjoy the liberty to nominate a person on its reserved seat who was not an enrolled voter of any of the Wards falling within the local limits of such Council. Any nomination that was contrary to such a mode, would be in breach of the provisions of section 35(1)(c) of the Sindh Local Government Act, 2013 read with Rule 50(1) of the Sindh Local Councils (Election) Rules, 2015 and would thus invalidate his candidature.

Petitioner in person.

Adnan Karim, Additional A.-G. and Abdullah Hanjiah, Law Officer, ECP for Government of Sindh.

2016 S C M R 1976

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

Haji ZARWAR KHAN through L.Rs.---Petitioner

Versus

Haji REHMAN BANGASH and others---Respondents

Civil Petition No. 1662 of 2016, decided on 17th June, 2016.

(On appeal against the judgment dated 15.03.2016 passed by the Islamabad High Court, Islamabad in C.R. No. 413 of 2015)

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

----O. XVI, R. 7---Power to require persons present in Court to give evidence or produce document---Scope---Order XVI, R. 7, C.P.C. provided that any person present in Court may be required by the Court to give evidence or to produce documents then and there in his possession or power---Said provision did not apply, where the persons present in Court were required by a party to give evidence.

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

----O. XVIII, R. 4---Witnesses to be examined in open Court---Scope---Order XVIII, R. 4, C.P.C. provided that the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge---Said Rule by no stretch of imagination provided for examination of witnesses who were not mentioned in the list of witnesses.

Mian Shafqat Jan, Advocate Supreme Court and Mehmood A. Sh., Advocate-on-Record (Absent) for Petitioner.

Nemo for Respondents.

2016 S C M R 1979

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman, Umar Ata Bandial and Ijaz-ul-Ahsan, JJ

JUBILEE GENERAL INSURANCE CO. LTD.---Petitioner

Versus

RAVI STEEL COMPANY---Respondent

Civil Petition No. 1287-L of 2016, decided on 29th June, 2016.

(On appeal from the judgment/order dated 06.04.2016 passed by Lahore High Court, Lahore in R.F.A. No. 992 of 2012)

Insurance Ordinance (XXXIX of 2000)---

----Ss. 124(2) & 123(5)---Limitation Act (IX of 1908), Ss. 12 & 29---Appeal against decision of Tribunal---Limitation period of 30 days for filing appeal, commencement of---Uncertified copy of Tribunal's decision---Perusal of provisions of S. 124(2) of the Insurance Ordinance, 2000 read with S. 123(5) thereof, revealed that there was no requirement for filing 'certified copy' of the Tribunal's decision along with the appeal thereagainst---In the present case when the appellant selected the course of filing his appeal with the aid of an uncertified copy of the Tribunal's decision, which was already available with him on 3-10-2012, it was clear that starting point of limitation was the date on which the appellant had knowledge of and was handed over a copy of the decision by the Tribunal---Appellant was aware of the Tribunal's decision and had received copy thereof on 3-10-2012---Accordingly, the appeal filed by the petitioner on 3-11-2012 was time barred---Petition for leave to appeal was dismissed accordingly.

Mian Allah Nawaz, Senior Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Zaheer-ud-Din Babar, Advocate Supreme Court and Ibrar Ahmed, Advocate Supreme Court for Respondent.

2016 S C M R 1982

[Supreme Court of Pakistan]

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

COLLECTOR OF CUSTOMS---Appellant

Versus

Messrs BEST WAY CEMENT and another---Respondents

Civil Appeals Nos. 427 and 428 of 2009, decided on 27th April, 2016.

(On appeal against the judgment dated 27.1.2009 passed by the High Court of Sindh, Karachi in Special Customs Reference Applications Nos. 348 and 349 of 2007)

Customs Act (IV of 1969)---

----S. 19---S.R.O. 575(I)/2006 dated 5.6.2006---S.R.O. 530(I)/2005 dated 6.6.2005---Import of trucks---Exemption from customs duty and sales tax---On-Highway dump trucks imported by cement manufacturing company---On-Highway trucks were designed for long distance highway transportation and thus were not part of the plant of a cement factory---In contrast on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production the same fell within the ambit of plant---Company which had imported On-Highway trucks was not entitled to claim exemption under S.R.O. 575(I)/2006 dated 5.6.2006 and S.R.O. 530(I)/2005 dated 6.6.2005---Supreme Court directed the customs authorities to recover the customs duties and sales tax on all imported On-Highway trucks.

Companies/respondents, who were cement manufacturing enterprises, imported certain trucks. Upon arrival of the trucks companies claimed exemption from duty in excess of 5% in terms of Serial No.21 of S.R.O. 575(I)/2006 dated 5.6.2006 and 0% sales tax in terms of S.R.O. 530(I)/2005 dated 6.6.2005 by declaring that the imported trucks fell within the ambit of plant as provided in S.R.O. 575(I)/2006 dated 5.6.2006. The entire basis for treating the trucks to be part of the plant of their respective cement factories was that the imported trucks were Off-Highway trucks imported for their utilization in the industrial process of their respective cement factories, hence they be regarded as part and parcel of their cement manufacturing activity. Upon physical examination of the imported trucks, the Customs Examination Staff found that the imported vehicles were not Off-Highway dump trucks but simply On-Highway trucks. Customs authorities classified the imported trucks under PCT Heading 8704.2290 which attracted 30% ad volerem customs duty and 15% Sales Tax.

Trucks imported by the companies being On-Highway trucks were designed for long distance highway transportation. These trucks could mount container on its chassis for loading goods. As On-Highway truck was meant for long hauls, it also had a bunk in its cabin for its use as driver's sleeping area. In contrast to such utility, the Off-Highway dump truck was specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings were carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant. On the other hand, trucks that were imported by the companies, being On-Highway trucks and not Off-Highway dump trucks, were rightly treated by the Customs authorities as not being a part of the plant of a cement factory.

Companies which had imported On-Highway trucks were not entitled to claim exemption under S.R.O. 575(I)/2006 dated 5.6.2006 and S.R.O. 530(I)/2005 dated 6.6.2005. Supreme Court directed the customs authorities to recover the customs duties and sales tax on all On-Highway trucks imported by the companies in terms of PCT Heading 8704.2290.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellant (in both cases).

Salman Akram Raja, Advocate Supreme Court for Respondents (in both cases).

2016 S C M R 2009

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Gulzar Ahmed, JJ

TEHSIL MUNICIPAL ADMINISTRATOR, FAISALABAD---Appellant

Versus

MUHAMMAD SALEEM and others---Respondents

Civil Appeal No. 712-L of 2012, decided on 22nd July, 2016.

(On appeal against the order dated 13.10.2010 passed by the Lahore High Court, Lahore in R.S.A. No. 138/2005)

Civil Procedure Code (V of 1908)---

----O. XLI, R. 17(1)---Dismissal of appeal for non-prosecution---Scope---Order sheet of the Court did not reflect clearly as to what matter was fixed for hearing before the Court on the date on which appeal was dismissed for non-prosecution---Order XLI, R. 17(1), C.P.C. specifically required that it was on the date when the appeal was called for hearing and appellant failed to appear, the Court may make an order of dismissing the appeal---In the present case, two orders passed by Appellate Court prior to the date on which appeal was dismissed for non-prosecution, were simple order of adjournment without noting that the appeal had been adjourned for hearing on the next date---In such circumstances, order for dismissal of appeal for non-prosecution passed by Appellate Court would not be an order under O. XLI, R. 17(1), C.P.C. for that on the date of dismissal of appeal, the record did not show that the appeal itself was fixed for hearing---Appellant could not be made liable for the mistake of the court---Appeal was allowed accordingly.

Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Ch. Ali Muhammad, Advocate Supreme Court and Walayat Umar Ch., Advocate-on-Record (Absent) for Appellant.

Noor Muhammad Khan Chandia, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record (Absent) for Respondents.

2016 S C M R 2017

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

Ms. SHABNAM IRSHAD AHMED and others---Petitioners

Versus

MUHAMMAD MUNEER MALIK and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1221 and 1279 of 2016, decided on 29th July, 2016.

(On appeal from the judgment dated 18.03.2016 in W.P. No.670 of 2015 passed by the Islamabad High Court, Islamabad)

Civil service---

----Government University---Post of Deputy Director 'Production'---Candidate appointed lacking the required experience in the field of 'Production'---Effect---Appointment declared illegal and accordingly set aside---Criteria for appointment to post in question was advertised as "at least 12 years' experience as Programme Manager / Controller of Programmes/Producer in Radio / Television or equivalent post in the audio-visual centres of Education Department or other relevant organization"---Record revealed that candidate appointed had been working in the field of 'Design' which had its own hierarchy and opening for promotion---'Production' was a distinct field which had its own dynamics and determinants---Candidate appointed may have had experience in her respective field of 'Design' which by no stretch of imagination could be termed and treated as experience in the field of 'production'---Certification relied upon by the candidate appointed was more or less subjective as it did not show what it was based on---Even if such certification had some worth it did not show anywhere that candidate appointed had the requisite experience in the field of 'Production', nor any reckoning of whatever had been mentioned therein could stretch her experience to 12 years in the field of 'Production'---As against that the candidates not selected/respondents satisfied the eligibility criteria in terms of qualification as well as experience as they possessed a Master-degree and 12 years' experience in the field of 'Production'---High Court had rightly set aside the appointment and directed the University to proceed with the appointment process for selecting the most capable person from amongst the eligible candidates on the basis of merit---Petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Government post---Criteria for selection to post---Opinion of Selection Board---Constitutional jurisdiction of the High Court---Scope---High Court could not substitute its own view for that of the Board but it could turn down a conclusion based on a wrong arithmetical calculation.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Syed Rifaqat Shah, Advocate-on-Record for Petitioners (in C.P. 1221 of 2016).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. 1279 of 2016).

Respondents Nos. 1 and 3 in person.

2016 S C M R 2021

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Tariq Parvez and Khilji Arif Hussain, JJ

MUHAMMAD JAVED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 383 of 2010, decided on 9th June, 2016.

(Against the judgment dated 26.04.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No. 85-J of 2006 and Murder Reference No. 843 of 2004)

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Chance and related witnesses---Both the eye-witnesses produced by the prosecution were not only very closely related to the deceased but were also chance witnesses---Both the said eye-witnesses had completely failed to establish any reason for their presence at the scene of the crime at the relevant time---Said witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case---Although report of the Forensic Science Laboratory revealed that firearm recovered from the accused's custody matched with a crime-empty secured from the place of occurrence yet the investigating officer had clearly acknowledged before the Trial Court that the crime-empty had been sent to the Forensic Science Laboratory on the day when a carbine had been recovered from the custody of the accused---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside accordingly and he was acquitted of the charge by extending him benefit of doubt.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

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

2016 S C M R 2023

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Mushir Alam and Maqbool Baqar, JJ

Messrs TRANSGLOBE SHIPPING SERVICE---Appellant

Versus

WAPDA and another---Respondents

Civil Appeal No. 194-K of 2013, decided on 25th July, 2016.

(Against the judgment dated 25.10.2013 passed by High Court of Sindh at Karachi in Civil Revision Application No. 64/2012)

Civil Procedure Code (V of 1908)---

----S. 89-A---Limitation Act (IX of 1908), Art. 181---Suit/case before Trial Court referred for mediation to a centre for dispute resolution with consent of parties---Suit continuously fixed in court despite mediation proceedings and ultimately dismissed for non-prosecution in absence of the parties---Legality---Court was required to have applied its conscious mind to the facts and circumstances of the case before dismissing the suit for non-prosecution---No intimation was given by the Court fixing the case for hearing and requiring the plaintiff to appear before it along with its evidence---Matter remained pending before the centre for dispute resolution for further proceedings in terms of order of court itself---In such circumstances it could not be said that when suit was dismissed for non-prosecution, it was fixed for hearing before the Court---Order of the Court dismissing the suit for non-prosecution, was altogether without jurisdiction and void ab initio---Residuary Art. 181 of the Limitation Act, 1908 providing three years' time for filing application for restoration of suit would apply in the present case---Suit filed by plaintiff before Trial Court was restored accordingly.

Trial Court with consent of both parties referred the suit/case for mediation to a Centre for Dispute Resolution and both parties were directed to approach the Centre for Dispute Resolution for further proceedings but the suit continued to be fixed in Court and ultimately in absence of the parties it was dismissed for non-prosecution. Plaintiff then filed an application for restoration of the suit, which was dismissed up to the High Court.

Admittedly the dispute between the parties was referred for mediation to a Centre for Dispute Resolution. Such order of the court remained in field until suit came to be dismissed for non-prosecution. The very fact that parties were directed to appear before the Centre for Dispute Resolution for further proceedings apparently showed that no proceedings in the suit was to take place rather it was to be done at the Centre for Dispute Resolution. Once the suit was referred for mediation, there was no report as to what had transpired in the proceedings before the Centre for Dispute Resolution. Court was not justified in dismissing the suit for non-prosecution as for doing so in the first place the court was required to have applied its conscious mind to the facts and circumstances of the case and not just to pass a mechanical order. It was apparent that suit was dismissed for non-prosecution when none of parties appeared before the Court. Defendant also did not inform the court of the proceedings before the Centre for Dispute Resolution nor anything in writing seemed to be available before the Court. There was no intimation by the Court fixing the case for hearing and requiring the plaintiff to appear before it along with its evidence. Thus, while matter remained pending before the Centre for Dispute Resolution for further proceedings in terms of order if court itself, it could not be said that when suit was dismissed for non-prosecution, it was fixed for hearing before the Court and therefore, such an order of the Court, was altogether without jurisdiction and void ab initio. In such regard Article 163 of Limitation Act, 1908 providing 30 days for filing of application for restoration would not apply rather the residuary Article 181 of the Limitation Act, 1908 would apply providing three years' time for filing the application for restoration of suit. Suit filed by plaintiff before Trial Court was restored in circumstances. Appeal was allowed accordingly.

Naveed Ahmed Khan, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Appellant.

Badar Alam, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

2016 S C M R 2026

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Faisal Arab, JJ

AKBAR ALI and others---Appellants

Versus

STATE BANK OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1359, 1360, 1446, 1447, 1448 and 1511 of 2013, decided on 2nd June, 2016.

(On appeal against the judgment dated 4.7.2013 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petitions Nos. 41, 166, 841, 1203, 1230, 1469, 1470, 1705, 1779, 1781, 2082 of 2011 and 25, 91, 116, 132, 156, 200, 358, 529 of 2012)

(a) Banking Companies Ordinance (LVII of 1962)---

----Ss. 25 & 41---State Bank of Pakistan SMEFD Circular No. 1/2011 dated 02.02.2011---Write off of loans in certain areas affected by terrorism---Beneficiaries of such scheme---Scope---In order to rehabilitate business and industrial activities severely affected by the acts of terrorism in certain parts of the country, the Federal Government announced a relief package for such areas---Pursuant to such announcement, the State Bank of Pakistan issued SMEFD Circular No. 1/2011 dated 02.02.2011 ("the Circular")---In terms of said Circular, loans that were extended by financial institutions for their utilization in certain areas and had remained outstanding as of 31.12.2009 were to be written-off on certain conditions---Impact of such right-off on the financial institutions was to be borne by the Federal Government in the shape of providing subsidy to the affected financial institutions---Employees of the financial institutions located in the areas covered by the Circular claimed that they be also extended the benefit of the write-off scheme as they were also working in the areas to which benefit of the scheme had been extended---Validity---Circular of State Bank was followed by a clarificatory letter describing the scope of its application---Said letter provided that the loans extended by the financial institutions to their employees were not eligible for write-off under the Circular---Any category of persons who were excluded from the grant of benefit could not seek a write-off of its financial liability even if it related to the period or the areas covered under the scheme---Write-off package was intended to rehabilitate the business and industrial community of certain specified areas that were badly affected by terrorism, possibly for the reason that they may not close their businesses and shift to other areas, as such shifting might result in a decrease in commercial and industrial activities and an increase in unemployment ratio in the affected areas---Thus the whole purpose of the write-off scheme was to encourage business and industrial activities in such affected areas---Employee of a financial institution located in the affected areas, who had obtained loan from his financial institution, he being already gainfully employed could not be said to have been adversely affected by the hostile business or industrial environment---Claim of employees of financial institutions as borrowers, by no stretch of imagination fell within the object and scope of the write-off scheme---Appeal was dismissed accordingly.

(b) Administration of justice---

----Courts give effect to law or to any instrument having the force of law---Court of law cannot grant a concession under any legally enforceable instrument to a person who is not entitled thereunder.

Kh. Azhar Rasheed, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Appellants (in C.As. 1359-1360 and 1447-1448 of 2013).

Z.K. Malooka, Advocate Supreme Court for Appellants (in C.A. 1511 of 2013).

Haji M. Zahir Shah, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A. 1448, 1511 of 2013, C.M.As. 7981 of 2013 and 4609 of 2014).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for State Bank of Pakistan (in all cases).

M. Saeed Khan Shangala, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (Absent) for Respondent No.4 (in C.As. 892, 895 of 2012).

M. Saeed Khan Shangala, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (Absent) for Respondents Nos.21, 23 and 48 (in C.A. 898 of 2012).

M. Saeed Khan Shangala, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (Absent) for Applicants (in C.M.A. 5415 of 2015).

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents Nos. 5 and 8 (in C.A. 1359 of 2013).

Khawaja M. Farooq, Senior Advocate Supreme Court for N.B.P. (in C.As. 1359 and 1360 of 2013).

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for HBL (in C.As. 1359, 1447, 1448 of 2013).

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 5, 68 (in C.A. 1446 of 2013).

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for HBL (in all cases).

Syed Zalfiqar Abbas Naqvi, Advocate Supreme Court (Nemo) for Bank of Khyber (in C.As. 1359, 1360, 1447 of 2013 and C.M.A. 7965 of 2013).

Mian Muhammad Hanif, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents Nos. 4-12 (in C.A. 1447 of 2013).

Mian Muhammad Hanif, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents Nos. 4 and 5 (in C.A. 1511 of 2013).

M. Ajmal Khan, Advocate-on-Record/Advocate Supreme Court (Absent) for Respondent No.1

Qari Abdul Rasheed, Advocate-on-Record for Respondent No.2.

2016 S C M R 2031

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Mushir Alam, JJ

The STATE through Chairman NAB---Appellant

Versus

HANIF HYDER and another---Respondents

C.A. No. 82-K of 2015, decided on 2nd September, 2016.

(Against the impugned judgment passed by High Court of Sindh at Karachi in C.P. No. D-3184 of 2011 on 15-5-2013)

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

----S. 9 & Preamble---Object of National Accountability Ordinance, 1999---Said Ordinance was primarily legislated to counter mega scandals and book the persons who were involved in such scandals of corruption and corrupt practices---Supreme Court observed that the record of enquiries and investigations being undertaken by the National Accountability Bureau at present showed that prima facie such enquiries and investigations were not of mega scandals and apparently petty matters had been enquired into on the complaints, and that this was not the wisdom behind legislation of the National Accountability Ordinance, 1999.

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

----Ss. 9 & 25(a)---Corruption and corrupt practices by public servant/civil servant---Option of "Voluntary Return" of the assets or gains acquired by an accused---Propriety---Provisions of S. 25(a) of the National Accountability Ordinance, 1999 empowered the Bureau to accept the offer of an accused person of 'Voluntary Return' of the assets or gains acquired by him---Once an accused who was alleged to have plundered colossal sums of money, deposited a portion of such amount determined by Chairman of the Bureau voluntarily, that too, in installments, he stood discharged from all his liability in respect of the matter or transaction in issue and went back to join his job---Provisions of S. 25(a) of the National Accountability Ordinance, 1999 were not meant to allow corrupt "public servants" who minted money through corruption or corrupt practices to get a clean chit from the NAB authorities by paying portion of such alleged amount in terms of S.25(a) of the said Ordinance---No departmental proceedings were initiated against any such accused (public servants), who entered into Voluntary Return---Option of Voluntary Return by a public servant and or a civil servant fell within the ambit of "misconduct" and needed to be departmentally proceeded against once he admitted that he had earned money by corruption---After admitting such fact, public servant could not hold any public office either in Federal or in Provincial Government or in any state owned organization---Supreme Court observed that frequent exercise of powers of "Voluntary Return" by the Chairman of the Bureau had in fact multiplied corruption on the one side and defeated the object of the National Accountability Ordinance, 1999 on the other.

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

----Ss. 9 & 25(a)---Corruption and corrupt practices---Option of "Voluntary Return" of the assets or gains acquired by an accused---Vires of---Provisions of S. 25(a) of the National Accountability Ordinance, 1999, which authorized the Chairman NAB to accept the offer of 'Voluntary Return' from a person of the amount illegally earned by him, prima facie was in conflict with the provisions of the Constitution---Such power could only be exercised by a judicial forum as after payment of Voluntary Return, the person went scot-free without any stigma on his career and could contest the elections and or could continue in public office, as S. 25(a) did not provide any disqualification---Furthermore there was no yardstick provided in National Accountability Ordinance, 1999 and the rules framed thereunder for determining the amount of Voluntary Return--- Supreme Court directed the office to place present order before the Chief Justice of the Supreme Court, for passing appropriate orders to treat present matter as a suo motu petition, and lay down principles regarding cognizance by the Bureau in corruption matters under S. 9 of the National Accountability Ordinance, 1999 and to further examine whether the Bureau could extend its jurisdiction to take cognizance of the cases which fell within the domain of the Anti-Corruption authorities and or the Federal Investigation Agency---Supreme Court directed the Federal and Provincial Governments and the Bureau to furnish certain details in such regard.

Waqas Qadeer Dar, P.G. NAB, Col. (R) Sirajul Nadeem, DG NAB, Najam Din Junejo, Deputy Director NAB, Noor Muhammad Dayo, Special Prosecutor NAB and Syed Amjad Ali Shah, DPG NAB for Appellant.

Respondents Nos. 1, 2, 4 and 5 in person.

Zamir Ghumro, A.G. Sindh, Syed Israr Ali, Additional Director FIA, Asim Khan, Director (S)FIA and Ghulam Qadir Thebo, Chairman, ACE Sindh on Court's Notice.

2016 S C M R 2035

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Ijaz ul Ahsan, JJ

MUHAMMAD ASIF---Appellant

Versus

MUHAMMAD AKHTAR and others---Respondents

Criminal Appeal No. 102-L of 2014, decided on 3rd August, 2016.

(Against the judgment dated 18.09.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No. 272-J of 2009 and Murder Reference No. 515 of 2009)

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

----Ss. 300, Exception 4 (erstwhile), 302(b) & 302(c)---Qatl-i-amd---Case of sudden occurrence resulting in murder---Applicability of provisions of Exception 4 to (erstwhile) S. 300, P.P.C---Pre-requisites---In order to attract the provisions of Exception 4 to the erstwhile S. 300, P.P.C. it not only had to be established that the case was one of a sudden fight taking place without any premeditation in the heat of passion upon a sudden quarrel but it was also required as a necessary ingredient that the offender must not have taken undue advantage or must not have acted in a cruel or unusual manner.

Accused was convicted for an offence under section 302(b), P.P.C and sentenced to death by the Trial Court. High Court proceeded to hold that there was absence of any previous enmity between the parties; that the accused was tailor master by profession and used an unconventional weapon i.e. a pair of scissors to murder the deceased, which indicated that occurrence was a sudden occurrence without any premeditation, and that in such circumstances the accused was liable to be convicted and sentenced for an offence under section 302(c), instead of section 302(b), P.P.C. on the charge of murder. High Court also reduced death sentence of accused to imprisonment for ten years.

High Court had failed to consider that an offence under section 302(c), P.P.C. was made out only in those cases where Exceptions to the erstwhile provisions of section 300, P.P.C. stood attracted. In order to attract the provisions of Exception 4 to the erstwhile section 300, P.P.C. it not only had to be established that the case was one of a sudden fight taking place without any premeditation in the heat of passion upon a sudden quarrel but it was also required as a necessary ingredient that the offender must not have taken undue advantage or must not have acted in a cruel or unusual manner. In the present case even if the occurrence had taken place without any premeditation and a sudden fight had developed at the spot in the heat of passion upon a sudden quarrel still accused was entirely unjustified in giving multiple blows with a pair of scissors not only to deceased but also to complainant and one other person. It was obvious that the reaction of accused was way beyond normality and in the circumstances of the case he had acted in a cruel and unusual manner besides taking undue advantage of the situation by causing multiple injuries with a sharp-edged weapon on the vital parts of the bodies of three unarmed persons one of whom succumbed to his injuries and died. Such response of accused in the given circumstances of the present case took the case out of the purview of Exception 4 to the erstwhile section 300, P.P.C. High Court was not legally justified in converting the conviction of accused from one under section 302(b), P.P.C. to that under section 302(c), P.P.C. Impugned judgment passed by the High Court was set aside (only to the extent of section 302(c), P.P.C.) and the conviction of accused recorded by the Trial court for the offence under section 302(b), P.P.C. was restored.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Azmat Ullah v. The State 2014 SCMR 1178 and Zahid Rehman v. The State PLD 2015 SC 77 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Death sentence reduced to imprisonment for life---Case of sudden occurrence resulting in murder---Motive set up by the prosecution had not been established and the occurrence was indeed an occurrence taking place at the spur of the moment without any premeditation---Sentence of death passed by the Trial Court against the accused on the charge of murder was thus not justified---Death sentence awarded to accused under S. 302(b), P.P.C. was reduced to imprisonment for life---Appeal was disposed of accordingly.

Shahid Azeem, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Appellant.

Muhammad Tahir Qureshi, Advocate Supreme Court for Respondent No.1.

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

2016 S C M R 2039

[Supreme Court of Pakistan]

Present: Faisal Arab and Khilji Arif Hussain, JJ

MUHAMMAD ISMAIL NIZAMI and others---Petitioners

Versus

JAVED IQBAL and another---Respondents

Criminal Petition No. 36-K of 2015, decided on 28th March, 2016.

(On appeal against the judgment dated 24.4.2015 passed by the High Court of Sindh, Karachi in Criminal Revision Application No. 145 of 2014)

Illegal Dispossession Act (XI of 2005)---

----S. 7(1)---Tenancy agreement---Illegal occupation by landlord---Interim relief---High Court, powers of---High Court giving tenant possession of property as interim relief pending disposal of complaint before the Trial Court---Legality---In its judgment High Court had noted that certain goods and immovable articles of the tenant were lying in the property occupied by the landlord, and the same were handed over to the tenant on the orders of the Trial Court, which supported the contention of the tenant that the landlord had illegally occupied the property in question---Impugned judgment of the High Court called for no interference in such circumstances---Petition for leave to appeal was dismissed accordingly.

Sathi Muhammad Ishaque, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners.

Zafar Ahmad Khan, Additional P.-G., Muhammad Tamor Khan, Advocate High Court with permission for Respondents.

2016 S C M R 2042

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

MURAD BUX---Petitioner

Versus

KAREEM BUX and others---Respondents

Civil Petition No. 542-K of 2015, decided on 3rd August, 2016.

(On appeal against the judgment dated 19-10-2015 passed by the High Court of Sindh, Karachi, in C.P. No. D-6386 of 2015)

(a) Sindh Local Government Act (XLII of 2013)---

----S. 36(1)(f)---Local Government elections---Nomination papers, rejection/acceptance of---Non disclosure of FIR in the affidavit sworn in with the nomination papers---Plausible explanation given for such non-disclosure---If non-disclosure about pendency of a criminal case had been made, for which the candidate offered a reasonably plausible explanation, then the affidavit could not be considered as false or incorrect---Candidate had explained that an FIR was registered against him and after investigation, he was informed by the police that his case had been disposed of in class "C"---Non-disclosure of a fact which otherwise, if disclosed, could not debar the candidate from contesting the election, could not be made a ground to preclude the candidate from contesting the election---Nomination papers of candidate had been incorrectly rejected---Appeal was allowed accordingly.

Language of section 36(1)(f) and (g) of the Sindh Local Government Act, 2013 stated that a person shall be disqualified from being elected or chosen as and from being a member of council if he had been convicted by a Court of competent jurisdiction for an offence involving moral turpitude or misuse of power or authority under any law, unless a period of three years had elapsed since his release.

In the present case, the candidate had explained that an FIR was registered against him and after investigation, he was informed by the police that his case had been disposed of in class "C". Thereafter, the candidate filed nomination papers with an affidavit.

Even if the candidate had disclosed information regarding the pendency of a criminal case in his affidavit sworn before the Returning Officer, he would not have been declared disqualified from contesting the election. In such like cases where the explanation of a party contesting the election was plausible in regard to non-disclosure of any fact in the affidavit, it could not be denied the right to contest for elections. If non-disclosure about pendency of a criminal case had been made, for which the candidate offered a reasonably plausible explanation, then the affidavit could not be considered as a false or incorrect declaration. Nomination papers of candidate should not have been rejected in the present case. Appeal was allowed accordingly.

Illahi Bux Soomro v. Aijaz Hussain Jakhrani 2004 CLC 1060 ref.

In the present case, the disqualification of the candidate was not an issue. The only issue was the non-disclosure of the pending criminal case in the affidavit before the Returning Officer and whether such non-disclosure would be construed as concealment of 'material particulars'. Non-disclosure of a fact which otherwise, if disclosed, could not debar the candidate from contesting the election, could not be made a ground to preclude the candidate from contesting the election.

(b) Sindh Local Government Act (XLII of 2013)---

----S. 36(1)(f)---Local Government elections---Nomination papers, rejection/acceptance of---Non-disclosure of a fact in the affidavit sworn in with the nomination papers---Where the explanation of a candidate contesting the election was plausible in regard to non-disclosure of any fact in the affidavit, it could not be denied the right to contest for elections---However, if the candidate had wilfully made a false and or incorrect statement in the affidavit sworn in with the nomination papers concealing material particulars in order to avoid disqualification, then the (Election) Tribunal would not travel deeper into the explanation, once it was established that the disclosure of such material particulars would have exposed him to disqualification.

Illahi Bux Soomro v. Aijaz Hussain Jakhrani 2004 CLC 1060 ref.

Shahab Sarki, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Agha Faisal, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record (Absent) for Respondent No.1.

Hamza Ali Sahto, DSP for Respondent No.6.

2016 S C M R 2046

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 53-L of 2016, decided on 8th March, 2016.

(Against the order dated 1-12-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.9895-B of 2015)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 311, 148 & 149---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of cross versions---Medical evidence not supporting role attributed to the accused---Accused had been implicated in the case as an accused person through a cross-version advanced by the opposite party---Accused was alleged to have used his rifle to cause firearm injury on the deceased, while the co-accused, armed with a pistol, was also alleged to have effectively fired at the deceased---Post-mortem examination report of deceased however showed that she had sustained only one firearm injury, thus, prima facie the medical evidence available on the record did support the case of the prosecution vis-a-vis the role played by the accused---Apart from that the present case was a case of different versions advanced by the rival parties---Case against the accused called for further inquiry into his guilt---Accused had been arrested about a year and a half ago and his trial had not witnessed any progress so far---Investigation of the case had already been finalized and a challan had been submitted and thus, physical custody of the accused was not required at present stage for the purposes of investigation---Accused was admitted to bail in circumstances.

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

----S. 497---Bail---Scope---Concession of bail ought not to be withheld by way of premature punishment.

Ch. Anwar-ul-Haq Pannun, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Shahid Azeem, Advocate Supreme Court for the Complainant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Ishtiaq, S.I. for the State.

2016 S C M R 2048

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

GHULAM ABBAS---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 240-L of 2016, decided on 11th March, 2016.

(Against the order of the Lahore High court Lahore dated 16.2.2016 passed in Crl. Misc. No. 1249-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 148, 149, 337-A(ii), 337-F(i) & 337-H(2)---Rioting armed with deadly weapons, unlawful assembly, shajjah-i-mudihah, ghayr-jaifah damiyah, hurt by rash or negligent act, other hurt---Pre-arrest bail, grant of---Case of cross-version FIRs---Allegation against the accused was that he gave two sota blows on the head and shoulder of complainant's brother, however, during the course of investigation, police found that accused did not cause any injury to complainant's brother, rather he had a scuffle with another person who sustained simple injuries---Admittedly, present case was a case of two versions and possibility of false implication of the accused could not be ruled out---After elaborate evaluation of the evidence, which was yet to be recorded, the Trial Court had to determine as to which party was the aggressor and which party was aggressed upon---Accused was allowed bail before arrest accordingly.

Malik Muhammad Imtiaz Mahl, Advocate Supreme Court along with Petitioner.

Malik M. Akram Khan, Advocate Supreme Court for Respondent No.2.

Mazhar Sher Awan, Additional P.-G. and M. Manzoor, SI for the State.

2016 S C M R 2050

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

MUHAMMAD ARIF through L.Rs.---Petitioner

Versus

DISTRICT COORDINATION OFFICER/CHAIRMAN, P&D BOARD, LDA and others---Respondents

Civil Petition No. 2106-L of 2014, decided on 11th March, 2016.

(Against the judgment dated 27.05.2014 passed by the Lahore High Court, Lahore in I.C.A. No.356 of 2013)

Lahore Development Authority Act (XXX of 1975)---

----S. 6(3)(iv)--- Illegal and unauthorized occupation of public property---Such occupation could not be permitted to be legalized by misuse of the process of the law---Any concession given or statement made by officials of the Development Authority during litigation over ownership of public property did not give any right to the illegal occupant of such property---Any process started by the Development Authority to assess the price of illegally occupied property and receive the same from the illegal occupant, did not bind the authority to allot or transfer the plot in the name of illegal occupant.

Suit plot, which was public property, was in occupation of the plaintiffs who raised a building thereon. Plaintiffs filed a suit for permanent injunction against the Development Authority to protect their possession of the plot. Said suit was dismissed and appeal filed thereagainst was also dismissed. Plaintiffs filed a constitutional petition which was accepted by the Single Judge of the High Court with the direction that the Development Authority should receive the price of the plot assessed by the Price Committee and transfer the same in the name of the plaintiffs, and that the possession of the plaintiffs over the plot should be protected. Division Bench of the High Court set aside the order passed by Single Judge by holding that the plaintiffs were in unauthorized possession of suit plot; that any concession given or statement made by officials of the Development Authority during the proceedings of the Constitutional petition before the Single Judge of the High Court did not give any right to the plaintiffs over suit plot; that if any process had been started by the Development Authority for assessment of price of plot, the same did not bind the Authority to allot or transfer the plot in the name of plaintiffs, and that even otherwise, plaintiffs had not shown that they ever deposited any tentative amount or offered the same to the Authority to show their bona fides.

Legal heirs of plaintiff did not have any titled documents to suit plot but were in illegal occupation of the said plot for more than three decades. Through process of law they tried to legalize their illegal occupation. Plaintiffs had no vested right with regard to the plot in question, in the absence whereof, they were undoubtedly in illegal and unauthorized occupation which could not be permitted to be legalized by misuse of the process of the law. No grounds for interfering in the judgment of the Division Bench of the High Court were found. Petition for leave to appeal was dismissed accordingly.

Muhammad Sohail Dar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2016 S C M R 2055

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

KHURSHED ALI and others---Appellants

Versus

ABDUL HAMEED---Respondent

Civil Appeal No. 183-L of 2015, decided on 7th March, 2016.

(On appeal against the judgment dated 21.05.2015 passed by the Lahore High Court, Lahore, in C.R. No. 298 of 2009)

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

----S. 6(c)---Suit for pre-emption---"Shafi Jar"---'Aks Shajra'---Objection as to certified copy of 'Aks Shajra'---Patwari had issued a certified copy of the 'Aks Shajra' to show that pre-emptor's land was contiguous to the land sold to the vendees---Vendees contended that the 'Aks Shajra' had not been proved in accordance with law because the Patwari who prepared the 'Aks Shajra' did not appear and produce the said evidence, rather it was tendered in evidence through the statement of a counsel---Validity---Patwari had issued a certified copy of the 'Aks Shajra' and if the vendees were of the view that the same was an incorrect copy they should have either summoned the Patwari concerned for the purpose of rebutting the document on the production of the correct copy of the Aks Shajra or after procuring the correct certified copy they should have tendered it in evidence so as to rebut the document---Even in their examination in chief the vendees had not denied the pre-emptor's superior right of pre-emption---Suit for pre-emption had been rightly decreed by the Trial Court---Appeal filed by vendees was dismissed accordingly.

Ghulam Hussain Awan, Advocate Supreme Court for Appellants.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Respondent.

2016 S C M R 2057

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Mushir Alam, JJ

IMDAD ALI KHAWAJA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 71-K of 2016, decided on 1st September, 2016.

(Against the impugned order passed by the High Court of Sindh at Karachi in Criminal Appeal No.151 of 2006 on 12.08.2016)

(a) Review---

----Criminal matter---Jurisdiction of High Court---High Court did not have the power to review an order passed in criminal jurisdiction---While hearing an appeal in criminal jurisdiction once an order was passed by one Bench of the High Court, the other Bench could not review such an order.

(b) Police Rules, 1934---

----R. 16.19---Enquiry against police official ordered by court---Suspension of police official---Principles---Where an enquiry was initiated against a police officer on court order, it was not mandatory to place such officer under suspension---Placing under suspension was the discretion of the competent authority and such discretion could be exercised considering relevant factors in the enquiry---Perception that an officer who was facing enquiry must be placed under suspension was against the spirit of Service Rules (i.e. Police Rules, 1934).

(c) Civil service---

----High Court ordering enquiry against a civil servant---Suspension of civil servant by the court---Propriety---Discretion in regard to placing an officer under 'suspension' fell with in the domain of competent authority under the relevant service law---In case the competent authority considered and or anticipated that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer---Supreme Court observed that the High Court in collateral proceedings could not step in the shoes of the competent authority by ordering suspension of 'civil servant' while directing initiating of departmental enquiry.

(d) Police Rules, 1934---

----R. 16.19---Constitution of Pakistan, Art. 212(3)---High Court ordering enquiry against a police official---Suspension of said official by the High Court---Legality---Jurisdiction of the High Court was barred under Art. 212(3) of the Constitution in relation to the terms and conditions of a civil servant---While hearing a criminal appeal, the High Court did not have jurisdiction to order suspension of a police official in collateral proceedings and or direct suspension of the police official to the competent authority during a proposed enquiry---High Court could however always recommend for enquiry against a police official if his conduct during the course of hearing appeared to be unbecoming of a police officer.

Fareed Ahmed Dayo, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner and Petitioner in person.

Zamir Ghumro, A.-G. Sindh and Adnan Karim, Additional A.-G. for Respondents.

Faizullah Korejo, SSP (City) and Ms. Shehla Qureshi, SP (City) for Sindh.

2016 S C M R 2064

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

MUKHTAR AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1162-L and 1163- L of 2015, decided on 4th February, 2016.

(Against the orders dated 5-10-2015 and 14-10-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous Nos.11534-B and 13080-B of 2015)

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

----S. 498--- Penal Code (XLV of 1860), Ss. 337-F(i), 337-F(iv), 337-L(2), 148, 149 & 379---Ghayr-jaifah damiyah, ghayr-jaifah-hashimah, ghayr-jaifah mudihah, other hurt, rioting armed with deadly weapons, unlawful assembly, theft---Pre-arrest bail, cancellation of---According to the FIR accused and co-accused had caused knife injuries on the complainant's thigh and ankle respectively---Said injuries attracted the provisions of Ss. 337-F(ii) & 337-F(iv), P.P.C. respectively which offences were non-bailable---FIR also alleged that the accused and co-accused had snatched away a sum of Rs. 10,000/- from the complainant and the offence under S. 379, P.P.C. invoked in the FIR in such respect was also non-bailable---Eye-witnesses mentioned in the FIR, including the injured complainant, had stood by their statements made before the police fully implicating accused and co-accused in the alleged offences---Prima facie, the medical evidence lent support to the allegations levelled by the prosecution---Investigating officer stated that during investigation the allegations leveled against accused and co-accused had been found to have been fully established; that the weapons of offence were yet to be recovered from the custody of accused and co-accused and for that purpose their physical custody was required by the local police---Pre-arrest bail granted to accused and co-accused by the High Court was cancelled in circumstances.

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

----S. 498---Pre-arrest bail, grant of---Scope---Offences allegedly not attracting the prohibitory clause contained in subsection (1) of S. 497, Cr.P.C.---Such consideration was hardly relevant to a case wherein extraordinary concession of pre-arrest bail was sought.

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

----S. 498---Pre-arrest bail, grant of---Scope---Concession of pre-arrest bail could not be allowed to an accused person unless the court felt satisfied about seriousness of the accused's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police.

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

----S. 498---Pre-arrest bail, cancellation of---Scope---Accused released on ad interim pre-arrest bail filing (first) pre-arrest bail petition before the High Court---First bail petition dismissed on account of absence before the court---Such conduct ought to, in the absence of any valid justification, suffice to disentitle accused to an exercise of discretion in his favour in the second round (i.e. at the time of filing second pre-arrest bail petition).

Asif Mehmood Cheema, Advocate Supreme Court for Petitioner (in both cases).

Mian Muhammad Arif, Advocate Supreme Court for Respondent No.2 in person (in both cases).

Asjad Javaid Ghural, Additional Prosecutor General, Punjab, Abdul Rashid, S.I. and Nisar, S.I. for the State (in both cases.).

2016 S C M R 2067

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

Rana ABDUL ALEEM KHAN---Petitioner

Versus

IDARA NATIONAL INDUSTRIAL CO-OPERATIVE FINANCE CORPORATION DEFUNCT through Chairman Punjab Cooperative Board for Liquidation, Lahore and another---Respondents

Civil Petition No. 1680-L of 2015, decided on 9th March, 2016.

(On appeal against the judgment dated 4-6-2015 passed by the Lahore High Court, Lahore, in F.A.O. No. 297 of 2014)

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Power under the provisions of O. XLI, R. 27, C.P.C. for allowing available additional evidence was not unfettered nor did the Appellate Court have the discretion to allow additional evidence per its own caprice, rather such discretion was structured/limited by the factors enunciated in the said provisions i.e., where the Court from whose decree the appeal had been preferred had refused to admit any evidence which it ought to have admitted.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Power of Appellate Court to require any (additional) document or examination of witnesses enabling it to pronounce its judgment did not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence had been set out nor any independent formal application had been moved for the purposes of producing additional evidence.

Muhammad Tariq and others v. Mst. Shamas Tanveer and others PLD 2011 SC 151 ref.

Ch. Rizwan Mushtaq, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2016 S C M R 2069

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

SHAHZAD YOUSAF and others---Petitioners

Versus

FARZANA SHAHZAD and others---Respondents

Civil Petitions Nos.30-L and 219-L of 2015, decided on 10th March, 2016.

(Against the judgment dated 5-12-2014 passed by the Lahore High Court, Lahore in W.Ps. Nos. 31371 of 2012 and 11127 of 2013)

Family Courts Act (XXXV of 1964)---

----S. 17-A [as inserted by the Family Courts (Amendment) Act (XI of 2015)] & Sched. Pt. I---Award of maintenance for minor child and wife till iddat period---Annual increase of 10% in maintenance for minor---Whether such increase was proper---Husband running a business and having good financial standing---Family Court found that the husband has admitted the factum of running a business and failed to substantiate that the business was in financial crisis; that on the contrary the wife produced oral as well as documentary evidence to substantiate that the husband had good financial position; that as such the husband was able to pay maintenance allowance at the rate of Rs.20,000/ (per month) to the wife till her iddat and to the minor at the rate of Rs.20,000/- (per month) with an annual increase of ten percent---High Court while maintaining the maintenance allowance to the wife as well as minor son at the rate of Rs.20,000/- (per month) each reduced the award of annual increase from ten to five percent---Propriety---Conclusion arrived at by the Family Court by holding the wife (till her Iddat) and minor son (till his majority) were entitled to maintenance allowance at the rate of Rs.20,000/- (per month) each with an annual increase of ten percent to the minor was quite justified taking into consideration the financial position of the husband---Moreover, by virtue of S. 17-A of the Family Courts Act, 1964 [as substituted by the Family Courts (Amendment) Act (XI of 2015)] the maintenance was to be increased at the rate of ten percent each year---Supreme Court restored annual increase in maintenance for minor at 10%---Petition for leave to appeal was disposed of accordingly.

Ijaz Ahmad Janjua, Advocate Supreme Court for Petitioners (in C.P. 30-L of 2015).

Petitioner in person (in C.P. No. 219-L of 2015).

Respondent in person (in C.P. No. 30-L of 2015).

Ijaz Ahmad Janjua, Advocate Supreme Court for Respondent No.1 (in C.P. No. 219-L of 2015).

2016 S C M R 2073

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

WAJAHAT AHMED and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 889-L, 890-L and 956-L of 2016, decided on 7th September, 2016.

(On appeal from the judgment of the Lahore High Court, Lahore dated 18.05.2016 passed in Criminal Appeal No. 418 of 2013, Crl. Appeal No. 143 of 2013 and Crl. Revision No. 366 of 2013)

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

----Ss. 316 & 337-L(2)---Qatl-i-shibh-i-amd, other hurt---Reappraisal of evidence---Accused was alleged to have driven a tractor over the body of deceased, whereas the co-accused was alleged to have given sota blows to the complainant party---FIR was registered after a delay of one day, four hours and forty five minutes of the occurrence---Complainant was unable to sufficiently explain such delay in lodging the FIR---Complainant in his cross-examination stated that he along with his deceased wife visited the police station almost immediately after the occurrence but he did not make any statement regarding the occurrence---Medico-legal report of complainant was not in line with the number of blows he allegedly received at the hands of the co-accused---Medical evidence regarding the injuries allegedly sustained by the deceased was also not in line with the ocular account furnished by the complainant and prosecution witness---Prosecution had not been able to prove its case against both the accused and co-accused beyond any reasonable doubt--- Both the accused and co-accused were acquitted of the charges accordingly---Supreme Court observed that the approach adopted by the Judge of the High Court in convicting the accused and co-accused was not in line with the settled principles of administration of criminal justice in that he treated the present case as a case of two versions when both the accused and co-accused neither made statements on oath under S. 340(2), Cr.P.C. nor led any evidence and denied their presence at the place of occurrence, and the Judge found factual discrepancies/ exaggeration in the prosecution case but still convicted and sentenced them without any valid reason or justification---Appeal was allowed accordingly.

(b) Criminal trial---

----Burden of proof--- Standard of proof--- Prosecution had to prove the guilt of the accused beyond any reasonable shadow of doubt.

(c) Criminal trial---

----Benefit of doubt--- Once the Court entertained reasonable doubt/doubts in the prosecution case, its benefit must be extended to the accused not as a grace but as of right.

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

----S. 342---Statement of an accused recorded under S. 342, Cr.P.C.---Such statement had to be rejected or accepted in toto.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioners (in Crl. Petitions Nos. 889 and 890 of 2016).

Syed Seerat Hussain Naqvi, Advocate Supreme Court and Walayat Umer Ch., Advocate-on-Record for Petitioners (in Crl. Petition No. 956 of 2016).

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

2016 S C M R 2081

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.583-L of 2013, decided on 14th January, 2016.

(Against the judgment dated 22-4-2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.345 of 2004 and Murder Reference No.723 of 2004)

Appeal against acquittal---

----Murder---Reappraisal of evidence---Eye-witnesses produced by the prosecution were chance witnesses who had failed to establish the stated reason for their presence at the place of occurrence ---Post-mortem examination of the deadbody of the deceased had been conducted with a noticeable delay---Medical evidence had contradicted the ocular account---Motive set up by the prosecution had remained far from being established---Report received from the Forensic Science Laboratory was in the negative---High Court had rightly concluded that the prosecution had failed to prove its case against accused beyond reasonable doubt---Petition for leave to appeal challenging acquittal of accused was dismissed accordingly.

Amir Muhammad Joya, Advocate Supreme Court for Petitioner.

2016 S C M R 2082

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

INAYAT BIBI---Petitioner

Versus

REHANA KAUSAR through L.Rs. and others---Respondents

Civil Petition No. 553-L of 2014, decided on 11th March, 2016.

(Against the order dated 6-2-2014 of the Lahore High Court, Lahore passed in W.P. No. 23428 of 2009)

Civil Procedure Code (V of 1908)---

---- O. X, R. 4---Plaintiff moved an application for restoration of her suit which had been dismissed for non-prosecution---Said application was dismissed by Trial Court---Legality---Case was not fixed for hearing on the date on which application for restoration of suit was dismissed, rather it was fixed for the personal appearance of the plaintiff---Plaintiff could not appear on the said date on account of her illness as explained in her application for restoration, thus in the circumstances the Court at best could have taken action against the plaintiff in terms of O. X, R. 4, C.P.C., but the Court could not dismiss the suit for non-prosecution---Order of dismissal was patently illegal and could not be sustained---Application for restoration of suit including the suit should have been restored when the application for restoration had been moved within the prescribed period of limitation---Suit filed by plaintiff was restored accordingly.

Ms. Najma Perveen, Advocate Supreme Court for Petitioner.

Munib Iqbal, Senior Advocate Supreme Court and Malik Amjad Parvaiz, Advocate Supreme Court for Respondents.

2016 S C M R 2084

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan and Sardar Tariq Masood, JJ

ASFANDYAR and another---Petitioners

Versus

KAMRAN and another---Respondents

Criminal Petition No.198 of 2016, decided on 29th August, 2016.

(On appeal against the order dated 09.02.2016 passed by Peshawar High Court, Bannu Bench in Cr. M./Q.P. No. 58-B of 2015)

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

----S. 539-B---Power of local inspection---Scope---Section 539-B, Cr.P.C. gave power to a trial Judge or a Magistrate to visit and inspect the place of occurrence or any other place after due notice to the parties, if necessary for properly appreciating the evidence given during the trial---Such power could not be delegated by the trial Judge to any other subordinate or even a subordinate judicial officer to visit the place of occurrence as a Commission.

During cross-examination upon the investigating officer, in order to rebut the site plan, the trial Court on a request by the defence side, under section 539-B, Cr.P.C. appointed a Magistrate as a Commission to visit the place of occurrence in order to ascertain the authenticity of the site plan.

Section 539-B, Cr.P.C. gave power to a Judge or a Magistrate to visit and inspect the place of occurrence or any other place after due notice to the parties, if necessary in the opinion of the trial Court, for properly appreciating the evidence given during the trial. He was also required to record a memorandum without unnecessary delay regarding his observation at such inspection but this power could not be delegated by the trial Judge to any other subordinate or even a subordinate judicial officer. Under section 539-B, Cr.P.C., the trial Judge had no power to appoint another person to visit the place of occurrence as a Commission because the report submitted by a local Commission could not be equated with the memorandum mentioned in section 539-B(1), Cr.P.C. The trial Judge could inspect the place of occurrence but alone and he cannot delegate his powers under section 539-B, Cr.P.C.

Trial Judge, in the present case, assumed the jurisdiction of an investigating officer and impugned order passed by him would amount to favour one party and prejudice the case of other party. Power under section 539-B, Cr.P.C. could not be a substitute for collection of evidence. Power of inspection under section 539-B, Cr.P.C could not be interchanged for investigation. Impugned order by trial court was not only prejudicial to the other party but also detrimental to the fairness of the procedure provided under the Criminal Procedure Code, 1898, apart from being without jurisdiction.

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

----Art. 164---Closed-Circuit Television (CCTV) footage---Evidentiary value---Mere producing of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine---In order to prove the genuineness of such footage it was incumbent upon the defence or prosecution to examine the person who prepared such footage from the CCTV system.

Under Article 164, Qanun-e-Shahadat Order, 1984 trial court may allow production of Closed-Circuit Television (CCTV) footage but it was incumbent upon the defence to prove the same in accordance with the provisions of the Qanun-e-Shahadat Order, 1984. Defence had to produce, the concerned person who had prepared the footage from the C.C.T.V. system in order to prove the same. Adverse party was to be given an opportunity to cross-examine the said witness regarding the genuineness or otherwise of the said footage.

Mere producing of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine. In order to prove the genuineness of such footage it was incumbent upon the defence or prosecution to examine the person who prepared such footage from the CCTV system.

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

----S. 561-A---Inherent powers of High Court---Scope---Remedy under S. 561-A, Cr.P.C. was not an alternate or substitute for an express remedy as provided under the law---Jurisdiction under S. 561-A, Cr.P.C. was neither alternative nor additional in its nature and was to be rarely invoked only to secure the ends of justice so as to seek redressal of grievance for which no other procedure was available.

Liaqat Ali Shah, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (Absent) for Petitioners.

Nemo for Respondents.

2016 S C M R 2089

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

SAJID alias CHITTA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 70-L of 2016, decided on 3rd February, 2016.

(Against the order dated 15.12.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.13673-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---FIR had been lodged with a delay of ten days---Firearm injury attributed to the accused on the left calf of deceased was non-existent in the post-mortem examination report---Injured witness had made a statement before the Trial Court clearly maintaining that accused was not present at the spot and a similar affidavit had also been sworn by complainant maintaining that the accused was not present at the scene of the crime at the relevant time---Case against the accused called for further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.---Bail was granted accordingly.

Syed Tayyab Mehmood Jaffri, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab and Asif, S.I. for the State.

Rana Liaquat Ali, Advocate Supreme Court for the Complainant.

2016 S C M R 2090

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

ISRAR-UL-HAQ---Appellant

Versus

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

Civil Appeal No.148-L of 2010, decided on 7th March, 2016.

(On appeal from the order dated 23.10.2007 passed by the Lahore High Court, Bahawalpur Bench in W.P. No.3631/05/BWP)

Punjab Land Revenue Rules, 1968---

----R. 17(e)--- Lambardar--- Criteria for appointment--- Candidate belonging from minority caste in the area appointed as Lambardar---Propriety---Contention of appellant that he was 'Arain' by caste and 70% of the community in the revenue estate was 'Arain' while the candidate appointed as Lambardar belongs to the 'Jat' caste, which only had a ratio of 30% in the community---Validity---Rule 17(e) of the Punjab Land Revenue Rules, 1968 provided that while making the appointment of Headmen, regard should be given to the strength and importance of the community from which selection of a headman was to be made---Appellant did belong to the majority 'Arain" caste in the community---Fora below had not taken into consideration R. 17(e) of the Punjab Land Revenue Rules, 1968---No substantial reasons or grounds for by-passing the said Rule were given by the fora below---Supreme Court sent the case back to the Member (Judicial), Provincial Board of Revenue for deciding the case afresh in view of the relevant rules---Appeal was disposed of accordingly.

Mian Allah Nawaz, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Appellant.

Mian Subah Sadiq, A.A.-G. for Respondents Nos.1 - 3.

Ahmad Mansoor Chishti, Advocate Supreme Court for Respondent No.4.

2016 S C M R 2094

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MUHAMMAD ASLAM and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No.538-L of 2016, decided on 28th June, 2016.

(Against the order of the Lahore High Court Lahore dated 18-3-2016 passed in Criminal Misc. No. 2490-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accused and co-accused were specifically named in the FIR and specific role of firing at the deceased had been assigned to them---Accused and co-accused remained fugitive from law for about 8 months---In such circumstances, the police opinion regarding their non-presence at the scene of occurrence did not seem to be based on solid reasons---Even otherwise, it was for the Trial Court to determine after recording evidence as to whether the accused and co-accused were present at the spot at the time of occurrence---Trial of the case had already commenced and statements of some of the prosecution witnesses had since been recorded---Case for grant of bail was not made out in circumstances---Accused and co-accused were refused bail accordingly.

Syed Samar Hussain Shah, Advocate Supreme Court for Petitioners.

Shahid Azeem, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondent No.2.

Rana Abdul Majeed, Additional P.-G. and Abdul Ghaffar, ASI for the State.

2016 S C M R 2096

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

GHULAM QADIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 67-L of 2016, decided on 2nd February, 2016.

(Against the order dated 17.12.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.14183-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused had initially been mentioned in the FIR as an eye-witness of the occurrence and not as one of the culprits---After one day of registration of the FIR the status of accused had been transformed into a culprit on the basis of a statement made by the mother of deceased---Perusal of the FIR showed that the mother was not residing with the deceased at the time of the alleged occurrence and she ordinarily resided in another city---Mother of deceased had made her statement in respect of the present case on the basis of some information supplied to her by some other persons---Investigating agency had concluded that it was only the co-accused who had caused all the injuries to the deceased but that involvement of the accused in the murder could not be ruled out of consideration in one capacity or the other---Case against the accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Investigation of the case had already been finalized and a challan has been submitted and, thus, physical custody of accused was not required at present stage for the purposes of investigation---Accused was granted bail accordingly.

Muhammad Amir Khan Niazi, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner.

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

2016 S C M R 2098

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Mushir Alam, JJ

ADDITIONAL INSPECTOR-GENERAL OF POLICE, KARACHI and another---Appellants

Versus

MUHAMMAD ISMAIL LASHARI and another---Respondents

Civil Appeals Nos.95-K and 96-K of 2016, decided on 1st September, 2016.

(On appeal from judgment dated 7-4-2016 of the Sindh Service Tribunal, Karachi, passed in Appeals Nos. 1660 and 1661 of 2015)

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

----Ss. 2(a), 2(c), 3(1)(b) & 9---Police Rules, 1934, Rr. 12.1, 16.1 & 16.2---Sindh Police (Efficiency and Discipline) Rules, 1988---Continued misconduct by 'Inspector' and Sub-Inspector' of police---'Disciplinary proceedings' and 'dismissal from service'---Competent authority---Scope---'Disciplinary proceedings' were initiated against delinquent 'Inspector' and Sub-Inspector' by the Deputy Inspector General of Police (DIG), who also ordered their dismissal from service---Legality---Service profiles of the Inspector revealed that he was awarded 22 major punishments during his service and he was also awarded minor penalties several times---Furthermore, he did not file any departmental appeals against many of the said penalties, which were the outcome of serious charges---Similarly service record of the Sub-Inspector showed that he was awarded major penalties 6 times during his service against which he did not file any appeal and only contested one major punishment---Rule 16.2 of the Police Rules, 1934 specifically provided that an order for dismissal may be passed on the basis of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service---Consistent misconduct of the Inspector and Sub-Inspector reflected in their service profiles squarely fell under R. 16.2, Police rules, 1934---Rule 12.1 of said Rules described the DIG Police as appointing authority of an Inspector, and R. 16.1 conferred powers on the DIG to award major punishment of dismissal from service of an Inspector---Moreover, the Sindh Police (Efficiency and Disciplinary) Rules, 1988, conferred powers on DIG to award major punishment of dismissal from service to a police officer of the rank of Inspector---Competent authority under the Removal from Service (Special Powers) Sindh Ordinance, 2000 was the Chief Minister, who in the present case had delegated his authority by way of two notifications issued in terms of S. 9 of the said Ordinance---Reading of said two notifications together, along with the powers of appointment under Rr.12.1 & 16.2 of Police Rules, 1934 showed that the Deputy Inspector General of Police (DIG) being the appointing authority of an 'Inspector' was competent to issue show cause notices to the delinquent 'Inspector' and 'Sub-Inspector' under the Removal from Service (Special Powers) Sindh Ordinance, 2000---Deputy Inspector General of Police (DIG) was also competent to pass dismissal order against the 'Inspector' and 'Sub-Inspector'---Supreme Court observed that if police officials with record as that of the delinquent Inspector and Sub-Inspector were allowed to continue in service, it would not only damage the image of police force, but would also encourage social evils in the society, which the police force was required to eliminate.

(b) Police Rules, 1934---

----R. 16.2---Constitution of Pakistan, Art. 13(a)---Rule 16.2 of the Police Rules, 1934, vires of---Protection against double punishment---Scope---Continued misconduct---Dismissal from service---Continued misconduct of police official resulted in him being awarded minor/major punishments during his career/service, and ultimately on basis of such record he was dismissed from service---Contention of dismissed police official that he had already been penalized departmentally for acts of misconduct during his service, and that he could not be dismissed from service and punished again on the basis of such adverse entries recorded in his service record in view of Art. 13 of the Constitution---Validity---Concept of Art. 13(a) of the Constitution was completely distinct from the wisdom behind R. 16.2 of the Police Rules, 1934---Wisdom behind Art. 13(a) of the Constitution was to provide protection to a person who was tried and convicted from being vexed again in the same offence, whereas, concept of R. 16.2 of the Police Rules, 1934 was completely different whereby the penalty of dismissal from service of a police officer was awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service---Such penalty had further been qualified by the language of Rule 16.2 to the length of service---In terms of R. 16.2 cumulative effect of the penalties which the competent authority recorded in the service record of the police officers, could be examined to measure whether such police officer was fit to continue in the police service---Rule 16.2 of the Police Rules, 1934 was independent and had been introduced to ensure discipline within the police service and also to keep a strict check on the conduct of the police officer; it enabled a constant watchful-eye on the police officer by examining their dossier at any point of time and if the competent authority reached the conclusion that the police officer had indulged in acts of misconduct, which proved incorrigibility and rendered him completely unfit for service, the competent Authority could award the penalty of dismissal from service---Rule 16.2 of the Police Rules, 1934 was not violative of Art. 13(a) of the Constitution.

Adnan Karim, Additional A.-G. Sindh, Ghulam Sarwar Jamali, DIG (Admn.), Ghulam Sabbir Memon, AIG (Legal) and Naeem Shaikh, AIG for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondents.

2016 S C M R 2123

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

MUHAMMAD MUSHTAQ---Appellant

Versus

MUSTANSAR HUSSAIN and others---Respondents

Criminal Appeals Nos. 209-L and 210-L of 2009, decided on 13th January, 2016.

(Against the judgment dated 29.04.2008 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 36 and 37-ATA of 2007)

(a) Criminal trial---

----Recovery--- Murder--- Joint recovery of dead body on pointation of several accused--- Such recovery was inadmissible in evidence.

(b) Appeal against acquittal---

----Murder---Reappraisal of evidence---Prosecution had relied upon last-seen evidence and recovery of the deadbody--- Alleged recovery of the deadbody had not been effected at the pointing out of the accused persons because it had already been recovered much before their arrest---Regarding the last-seen evidence all that the prosecution witnesses had stated was that they had seen the accused persons going into a house in the company of deceased but it was not denied that the deadbody of deceased had not been found in the said house but was found in another house---No witness had been produced before the Trial Court, who had seen the accused persons in the company of the deceased entering such other house wherefrom body was recovered---In such circumstances the evidence produced by the prosecution as the last-seen evidence could not in the strict sense be called "last-seen evidence"---In the absence of any other evidence brought on the record to establish culpability of accused persons the High Court had rightly concluded that the prosecution had failed to prove its case against them beyond reasonable doubt---Appeal against acquittal was dismissed accordingly.

Muhammad Zahid Rana, Advocate Supreme Court for Appellant (in both cases).

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Respondents (in both cases).

Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State (in both cases).

2016 S C M R 2125

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE and others---Appellants

Versus

MUHAMMAD KHALID USMANI and others---Respondents

Civil Appeals Nos. 420-L, 421-L and 423-L to 425-L of 2009, decided on 11th August, 2016.

(Against judgment dated 26.01.2009 of Punjab Service Tribunal, Lahore, passed in Appeals Nos.2246, 2294, 2230, 2231, 2232 and 2219 of 2008)

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

----R. 13---Punjab Civil Servants Act (VIII of 1974), S. 2(2)---Promotion on 'officiating basis'---Assistant Engineers promoted to Executive Engineers on 'officiating basis' despite the availability of regular vacancies---Executive Engineers serving on 'officiating basis' for more than a decade, but subsequently reverted to their original ranks of Assistant Engineers on the alleged basis of incomplete service records and pending inquiries---Legality---All respondents met the minimum qualification and experience required for promotion from Assistant Engineers to Executive Engineers on the date on which they were promoted on 'officiating basis'---Rule 13(i) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provided that an appointment by promotion 'on officiating basis' could be made against posts which fell vacant as a result of the circumstances mentioned in the said Rule---Posts of Executive Engineer against which the respondents were promoted had not fallen vacant as a result of any of the situations mentioned in R. 13(i), and in fact respondents were promoted against regular vacancies/posts which had been available in the ordinary course of events---Respondents had served as Executive Engineers for many years; two of them for 21 years each and the two others for 12 years each---Respondents were promoted against regular posts on the basis of recommendations of a duly convened Departmental Promotion Committee (DPC), as such, they did not require recommendations of the subsequent Departmental Promotional Committees for the "regularization" of their promotion---Alleged inquiries pending against the respondents and their incomplete ACRs related to the period of their service when they had already been promoted to regular posts of Executive Engineers---Once the respondents had been promoted as Executive Engineers after fulfilment of all legal and procedural requirements, subsequent inquiries and incomplete service record became irrelevant and could not be used to revert them to their initial posts---Such matters may possibly be taken into consideration while processing their cases for further promotion from Executive Engineers to Superintending Engineers, but could not be used to furnish basis for reversion to the posts of Assistant Engineers after they had served as Executive Engineers for extended periods of time---Reversion of the respondents, in such circumstances, appeared to be unjust, unfair and inequitable besides being unlawful---Promotions of the respondents as Executive Engineers had a permanent character notwithstanding the prefix 'on officiating basis' which in the facts and circumstances of the present case was redundant---Service Tribunal was correct in finding that all the respondents were deemed to have been promoted as Executive Engineers on regular basis with effect from the respective dates on which they were promoted 'on officiating basis' with all consequential benefits, and that the condition of on 'officiating basis' contained in promotion orders of all the respondents should stand deleted---Appeal was dismissed accordingly.

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

Muhammad Asif Chatha v. Chief Secretary, Government of Punjab 2015 SCMR 165 distinguished.

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

----R. 13---Promotion on 'officiating basis'---Scope---Concept of officiating promotion of a civil servant in terms of R. 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was a stopgap arrangement where posts became available in circumstances specified in R. 13(i) and persons eligible for regular promotion were not available---For such reason R. 13(iii) provided that an officiating promotion shall not confer any right of promotion on regular basis and shall be liable to be terminated as soon as a person became available for promotion on regular basis.

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

----R. 13---Promotion on 'officiating basis'---Civil servants serving on 'officiating positions' for long periods---Legality and propriety---Keeping civil servants on officiating positions for long periods was clearly violative of the law and the rules---Promotion on an 'officiating basis' should be resorted to only in the circumstances visualized in R.13(i) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Promotion on 'officiating basis' was a purely temporary and stopgap arrangement for a limited period---Such a stopgap arrangement in no circumstance should be allowed to continue for years on end---Supreme Court directed that it would be just and fair if a timeframe of two years was followed in case of promotion on 'officiating basis', unless there were extraordinary circumstances necessitating extension of such period further for a limited duration, and such extraordinary circumstances must be reduced in writing by the competent authority directing such extension; that such extensions could not be undertaken in a routine and thoughtless manner and could only be made where circumstances spelt out in R. 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were in existence; that if the law provided a specified period of probation for appointments against regular posts, a free hand should not be given to Government Departments to undertake promotions on officiating basis for unlimited and unspecified periods---Supreme Court observed that the practice of officiating promotion, ad hoc promotion/ appointment or temporary appointment etc. was used by Government Departments to keep civil servants under their influence by hanging the proverbial sword of Damocles over their heads (of promotion 'on officiating basis' liable to reversion); that this was a constant source of insecurity, uncertainty and anxiety for the concerned civil servants for motives which were all too obvious, and that such practice must be seriously discouraged and stopped in the interest of transparency, certainty and predictability, which were hallmarks of a system of good governance.

Sarwar Ali Khan v. Chief Secretary to Government of Sindh 1994 PLC (C.S.) 411; Punjab Workers' Welfare Board v. Mehr Din 2007 SCMR 13; Federation of Pakistan v. Amir Zaman Shinwari 2008 SCMR 1138; Government of Punjab v. Sameena Parveen 2009 SCMR 1; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Federation of Pakistan v. Rais Khan 1993 SCMR 609; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 and Pakistan Railways v. Zafarullah 1997 SCMR 1730 ref.

M. Arif Raja, Additional A.-G., Punjab for Appellants.

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Respondents (in C.As. Nos.420, 421, 423 and 424 of 2009).

Respondent in person (in C.A. No. 425 of 2009).

2016 S C M R 2138

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Maqbool Baqar, JJ

FAISAL MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.42 of 2010, decided on 26th September, 2016.

(Against the judgment dated 9-6-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.465 of 2004 and Murder Reference No.762 of 2004)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Accused was alleged to have murdered his step-mother and step-siblings to get an undue share of property from his father (i.e. complainant)---Occurrence in issue had remained un-witnessed and the same had taken place during a night---Stance of complainant regarding his whereabouts at the time of incident was falsified by one of the prosecution witnesses---Duration between deaths and post-mortem examinations had been recorded by the doctor to be between 18 to 36 hours, showing that a lot of deliberations had taken place before the FIR had actually been registered---Perusal of post-mortem examination reports of deceased persons and police record indicated that till conducting of the post-mortem examinations the FIR had not actually been registered and the time of murders was not readily known---Deposition of alleged witness of last seen evidence showed that he had been procured and planted at some subsequent stage and he was not telling the truth---Accused allegedly made an extra judicial confession before a prosecution witness in the house of person "A"---Said witness had not provided a reason for his presence in the house of "A" and admittedly person "A" had not been produced by the prosecution as a witness---Record showed that the witness of alleged extra judicial confession waited for 2/3 days before he informed the police about the alleged confession---Witness of alleged extra judicial confession claimed that he produced the accused before the police after the alleged confession, whereas the complainant and police claimed accused had been arrested from some place---Recovery of a blood-stained hatchet allegedly at the instance of the accused was effected from a cattle shed of the complainant which showed that the same had not been recovered from exclusive custody of the accused---Provisions of S. 103, Cr.P.C. had clearly been violated in the matter of the said recovery---Report of serologist showing the origin of the blood available on the recovered hatchet to be human blood was prepared about 2 years after the report of the Chemical Examiner---Scientifically it was impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrated in a period of about three weeks---No prior incident had been mentioned by the complainant to establish any demand or motive of accused in getting undue share of property from the complainant---Even otherwise alleged demand was being made from the complainant and if at all such demand was not being met then the target of the accused ought to have been the complainant and not his step siblings or step mother---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Accused was acquitted of the charge of murder by extending him the benefit of doubt.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

2016 S C M R 2143

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General, Lahore and others---Petitioners

Versus

SAHIBHA KHANAM---Respondent

Civil Petition No.1423-L of 2015, decided on 11th March, 2016.

(On appeal against the order dated 24.03.2015 passed by the Lahore High Court, Lahore, in I.C.A. No.433 of 2015)

Land Acquisition Act (1 of 1894)---

----S. 4---Land acquired by Development Authority for a housing scheme---Allotment policy of plots, violation of---As per Allotment Policy for Residential and Non-Residential plots in the province dated 23-12-1986, exempted plot to the affectee was to be given to him/her from the land acquired from him/her---Land acquired from respondent-lady fell in Block-D of the housing scheme, while the plot allotted to her was located in Block-E which was at a considerable distance from her acquired land---Legality---Development Authority was unable to bring on record any document or policy which specified that the respondent-lady was to be accommodated according to availability of plots and the Development Authority was not bound by the policy for allocating the plot falling within or near the land acquired from her---High Court, in the light of the policy and determination made by the Development Authority itself, had rightly given a direction to the Authority to allot a plot to the respondent-lady near her acquired land and in case of non-availability of plot in such area, to asses fair price of the plot of her entitlement and allocate a plot to her in some other Block of the scheme of her choice, while compensating her with differential of the price of the plot---Petition for leave to appeal was dismissed accordingly.

Barrister Khurram Raza, Advocate Supreme Court and Nadeem Akhtar, Director Town Planning for Petitioners.

M. Asad Manzoor Butt, Advocate Supreme Court for Respondent.

2016 S C M R 2146

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Khilji Arif Hussain, JJ

MUHAMMAD RAFI and another---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 185-K and 186-K of 2015, decided on 24th August, 2016.

(Against the consolidated judgment dated 13.7.2015 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-2807 and 3458 of 2013)

(a) Civil Aviation Authority Service Regulations, 2000 [since repealed]---

----Regln. 3.29--- Recruitment process, scrapping of---Legality---Appellants applied for the posts advertised by the Civil Aviation Authority ("Authority")---Appellants underwent proper recruitment process and were selected---Appointment letters were issued by the Authority by the appellants which were duly accepted---Subsequently, however, after the issuance of the appointment letters, the Authority scrapped the entire recruitment exercise and order of appointment of the appellants was placed in abeyance on the ground that the recruitment process initiated by the Authority was not transparent---Validity---Authority had no concrete cavil to support its decision of scrapping the appointment process---Where an authority, after complying with the codal formalities, appointed any person, it could not take a somersault after the offer letters were issued and they were accepted---Civil Aviation Authority Service Regulations, 2000 did not suggest that once the offer letter had been issued and accepted, the Authority could scrap the process on the grounds that it was not transparent---Besides, the Authority had taken no action against those who had initiated the allegedly non-transparent recruitment process for appointments of the appellants---Action of the Authority to scrap the appointments of the appellants and/or keep them in abeyance after the offer letters were accepted was contrary to the spirit of the Civil Aviation Authority Service Regulations, 2000---Supreme Court directed that the appellants should be reinstated in service in terms of the offer letters issued to them by the Authority---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Non-statutory service regulations/rules---Constitutional petition before the High Court---Maintainability---Aggrieved person could invoke the constitutional jurisdiction of the High Court against a public authority if he satisfied that the act of the authority was violative of the service regulations even if they were non-statutory.

Pakistan Defence Officer's Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 ref.

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellants (in both cases).

Sanaullah Noor Ghouri, Advocate Supreme Court for Respondents Nos.2 - 3 (in both cases).

2016 S C M R 2150

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

EJAZ AHMED---Appellant

Versus

Rai MUHAMMAD RIAZ through L.Rs and others---Respondents

Civil Appeal No. 364-L of 2014, decided on 10th March, 2016.

(On appeal against the judgment dated 14-3-2013 passed by the Lahore High Court, Lahore, in F.A.O. No. 367 of 2011)

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXI, R. 95---Sale of immoveable property in execution of a decree---Application under S. 12(2), C.P.C. challenging the decree---Objection petition against such sale pending application under S. 12(2), C.P.C.---Maintainability---Plaintiff-purchaser filed a suit for specific performance against respondents-sellers seeking enforcement of his alleged agreement to sell in respect of suit property---Suit was decreed in favour of the plaintiff and in execution process the sale deed in favour of plaintiff was executed and possession was also delivered to him---Objector filed an objection petition contending that sellers had already executed an agreement to sell in his favour and pursuant to the said agreement he was also put in possession of the suit property and had been fraudulently dispossessed from the property in question without being made a party in the suit filed by the plaintiff---Validity---Remedy of O. XXI, R. 95, C.P.C. was not available to objector in the facts and circumstances of the case, and as such his objection petition was not maintainable---Objector had also filed an application under S. 12(2), C.P.C. challenging the decree in favour of the plaintiff, therefore, when such application was already pending, the objection petition in any case was not maintainable---Appeal was allowed accordingly with the direction that the application under S.12(2), C.P.C. filed by objector challenging the decree in favour of the plaintiff shall be decided independently on its own merits.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Appellant.

Ex parte for Respondents.

2016 S C M R 2152

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

CRIMINAL APPEALS NOS. 788 AND 789 OF 2006

(On appeal from the judgment of the Lahore High Court, Lahore dated 30.05.2006 passed in Crl. A. 1993 of 2004 and M.R. 23-T/2004)

AND

CRIMINAL APPEAL NO.433 OF 2011

(On appeal from the judgment of the Lahore High Court, Lahore dated 20.07.2009 passed in Crl. A. 1410/2006 and C.S.R. 1-T/2007)

NASIR IQBAL @ NASRA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 788, 789 of 2006 and 433 of 2011, decided on 14th March, 2016.

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

----Ss. 302(b) & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, unlawful assembly, acts of terrorism---Reappraisal of evidence---Death sentence, confirmation of---Five persons were brutally murdered during broad daylight on a road---Accused was convicted for the occurrence and sentenced to death---Validity---Scrutiny of evidence of eye-witnesses did not suggest any exaggeration rather not assigning any specific role to the accused in the FIR reflected the truthfulness of their testimony when in hustle and bustle of the occurrence which had been committed within a few seconds or minutes it was humanly impossible to assign specific role and give detailed description of the same---Lodging of the FIR in a straightforward manner in the fact and circumstances of the case ruled out any possibility of falsely roping the accused persons---Testimony of both the eye-witnesses was confidence inspiring and from the facts and circumstances of the case, they could not in any manner be considered to be chance witnesses---Motive for the occurrence was fully established to the extent of accused who was involved in another murder case of complainant's nephew and was allegedly extending threats to the complainant party to effect compromise---Medical evidence corroborated the ocular account---Recoveries had been effected which also corroborated the prosecution version---Parties were known to each other and FIR was promptly lodged, which ruled out any possibility of substitution or consultation to falsely rope in or involve the accused persons---Prosecution had fully succeeded in proving its case against the accused---Death sentence awarded to accused was maintained---Appeal was dismissed accordingly.

(b) Criminal trial---

----Interested witness---Eye-witness related to the deceased---Mere relationship of eye-witness with the deceased was not always enough to declare such witness to be partisan or interested witness when his testimony was confidence inspiring and corroborated with the medical evidence as well as recoveries of crime weapon and motive also stood proved.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, common intention, acts of terrorism---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Five persons were brutally murdered during broad daylight on a road---Accused was convicted for the occurrence and sentenced to death---No motive for the occurrence was attributed to the accused---Eye-witnesses of the occurrence admitted during their cross-examination that the accused had no previous enmity with them---Recovery of Kalashinkov from possession of accused after a considerably long period of four years also made his case distinguishable from that of the convicted co-accused and in such regard the Trial Court had also disbelieved the recoveries made---One of the co-accused who had been attributed a role similar to that of the accused had been acquitted by the Trial Court---Such distinguishing factors, were mitigating circumstances calling for reduction of accused's quantum of sentence---Death sentence awarded to accused was reduced to imprisonment for life in circumstances---Appeal was disposed of accordingly.

Muhammad Javaid Aziz Sandhu, Advocate Supreme Court for Appellants (in all cases).

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

Hasnat Ahmed Khan, Advocate Supreme Court for the Complainant.

2016 S C M R 2163

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

ABDUL RASHEED---Petitioner

Versus

Syed FAZAL ALI SHAH---Respondent

Civil Petition No.2425-L of 2015, decided on 8th March, 2016.

(On appeal against the judgment dated 8-9-2015 passed by the Lahore High Court, Lahore in R.F.A. No. 66 of 2008)

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

----O. XXXVII---Suit for recovery of money based on a cheque---Signatures on cheque, verification of---Statement of Bank officials, reliance upon---Scope---Defendant had taken a contradictory stance by first stating that the cheque was given to the plaintiff as a security for the repayment of the loan, but then claimed that cheque in question did not bear the defendant's signature---Defendant did not produce any expert at an appropriate point of time to establish that the signature on the cheque did not belong to him---Statement of Bank officers before the Trial Court that signatures on the cheque did not belong to the defendant was not relevant in the facts and circumstances of the case, because they were not hand-writing experts capable of establishing or refuting the disputed signature of the defendant---Court was not under any compulsion or duty to seek an opinion from an expert, when the defendant never applied to the Court in such behalf---Moreover, the defendant had admitted that the cheque belonged to him and there was no evidence that the cheque was stolen by the plaintiff---Suit of plaintiff for recovery based upon the cheque in question was rightly decreed---Petition for leave to appeal was dismissed accordingly.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1999 SCMR 1778 ref.

(b) Evidence---

----Court was not required to fish for the evidence for a party and to fill up the lacuna of its case, particularly in a matter where the party itself was delinquent to prove its own case.

Ch. M. Rafique Warriach, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2016 S C M R 2164

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Khilji Arif Hussain, JJ

Syed MUHAMMAD ALI and others---Petitioners

Versus

Syed DABIR ALI and others---Respondents

Civil Petitions Nos.213-K to 215-K of 2016, decided on 10th August, 2016.

(On appeal against the judgment dated 9-2-2016 passed by the High Court of Sindh, Karachi in R.As. Nos.107, 108 and 140 of 1989)

(a) Waqf---

----Validity--- Witnesses--- No one had been shown as a witness to the Waqf deed except the beneficiary himself--- Waqf deed was not established through confidence inspiring evidence--- No sanctity could be attached to such waqf deed and it was declared to be invalid---Petition for leave to appeal was dismissed accordingly.

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

----O. VI, R. 17---Amended written statement, filing of---Change in pleadings---Daughter filed a suit claiming her inheritance share in the property left behind by the father of the parties---Sons filed written statement challenging the claim made by the daughter---Subsequently sons filed an amended written statement claiming that the mother of the parties had created waqf-ul-aulad in their favour, therefore the daughter was not eligible to claim her share to such extent---Validity---Waqf was said to have been created in the year 1966 but in the original written statement filed by the sons in the year 1968 factum of creation of such waqf was not mentioned---Alleged creation of waqf was clearly an afterthought and was raised for the first time in the amended written statement---Such amendment in the written statement should not have been allowed---Petition for leave to appeal was dismissed accordingly.

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

----O. VI, R. 17---Amendment in written statement changing the entire complexion of the defence raised in the original written statement---Such amendment should not be allowed by the court.

Abdul Qadir Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2016 S C M R 2168

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

SONERI BANK LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law and others---Respondents

Civil Petition No. 1723-L of 2013, decided on 11th March, 2016.

(Against the judgment dated 11-10-2013 of the Lahore High Court, Multan Bench passed in W.P. No. 12284 of 2013)

(a) Payment of Wages Act (IV of 1936)---

----S. 2(i)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(b)--- Bank as a "commercial establishment"--- From the definition of 'commercial establishment' given in the Payment of Wages Act, 1936 with reference to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was clear that the Bank fell within the said definition---Any workman of a Bank aggrieved of non-payment of wages could approach the relevant authority established for such purposes.

(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S. 2(i)---Payment of Wages Act (IV of 1936), S. 17---Constitution of Pakistan, Art. 199---Dispute over payment of wages of a 'workman'---Constitutional petition before High Court challenging the status of a person as a 'workman'---Maintainability---Question as to whether a person was a `workman' within the purview of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was a matter of jurisdictional fact---Where a commercial establishment had lost its case on account that the person was found to be a 'workman', such finding of fact should be challenged in appeal and not in the constitutional jurisdiction of the High Court on the plea that the order of the authority determining such jurisdictional fact was a void determination.

Malik Waqar Haider Awan, Advocate Supreme Court for Petitioner.

Kamran Ali for Authority under Payment of Wages Act for Respondent No.2.

2016 S C M R 2170

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Umar Ata Bandial, JJ

GHANIA HASSAN---Petitioner

Versus

SHAHID HUSSAIN SHAHID and another---Respondents

Civil Petition No. 1088 of 2016, decided 22nd September, 2016.

(On appeal from the Judgment dated 19.2.2016 of the Lahore High Court, Multan Bench passed in F.A.O. No.159 of 2010)

(a) Islamic law---

----Marriage---Dower, increase in---Scope---Dower could be fixed before marriage and at the time of marriage or thereafter---Furthermore, dower once settled could always be increased subsequently by the husband or by an agreement between the parties---Property mentioned in nikahnama as dower could not be subjected to attachment or sale in execution.

Principles of Mohammadan Law by DF Mulla (Pakistan Edition); Mahommedan Law Vol. II (Containing the Law Relating to Succession and Status Compiled from Authorities in the Original Arabic) by Syed Amir Ali; Hedaya (2nd Edition Vol. 1, page 45) Commentary on the Muslim Law; Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore PLD 1989 SC 613 and Ameer Ali Khan v. Kishwar Bashir and another PLD 2004 SC 746 ref.

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

----O. XXXVII---Summary suit---Execution proceedings---Attachment of immoveable property---Immoveable property of judgment-debtor attached in execution of the decree in favour of plaintiff---Objection by wife of judgment-debtor that such immoveable property formed part of her dower mentioned in the Nikahnama and hence could not be attached in execution proceedings---Validity---Immoveable property subjected to the execution proceedings was mentioned in the Nikahnama of judgment-debtor as dower---Decree could not be executed against such immoveable property---Petition for leave to appeal was dismissed accordingly.

(c) Islamic law---

----Marriage---Dower---Property mentioned in Nikahnama as dower could not be subjected to attachment or sale in execution proceedings.

Syed Riaz-ul-Hassan Gillani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (Absent) for Petitioner.

Muhammad Kokab Iqbal, Advocate-on-Record/Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

2016 S C M R 2174

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

NOOR AHMED through L.Rs. and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No. 103-L of 2013, decided on 7th March, 2016.

(Against the judgment dated 17.12.2012 of the Lahore High Court, Bahawalpur Bench passed in C.R. No. 333/2010-Bwp)

Civil Procedure Code (V of 1908)---

----S. 115---Remand order challenged in revisional jurisdiction of High Court---Scope---Suit for specific performance filed by the plaintiff was dismissed by the Trial Court---Such decree was challenged by the plaintiff before the District Judge in appeal, which was accepted and the case was remanded to the Trial Court, which again dismissed the suit---Plaintiff did not file any appeal against such judgment and decree of dismissal, rather directly filed a revision petition before the High Court which revision petition was discarded by the High Court---Validity---Primarily the order of remand was challenged before the High Court which could not be assailed for the reason that it had attained finality and was not amenable to the revisional jurisdiction---Where an appeal had not been filed (before the Appellate Court), yet the High Court, in appropriate cases, could exercise its revisional jurisdiction against the challenged decree, however present case was not an appropriate case for the exercise of such revisional/supervisory jurisdiction by the High Court---Petition for leave to appeal was dismissed accordingly.

Mian Allah Nawaz, Senior Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

2016 S C M R 2176

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

HAIBAT KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.94-L of 2016, decided on 4th February, 2016.

(Against the order dated 23.12.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.25817-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 376(1)---Rape---Bail, grant of---Further inquiry---FIR had been lodged with a delay of 14 days---Medico-legal certificate of the alleged victim did not depict any mark of violence on any part of her body---Chemical examiner had submitted his report in the negative in respect of the vaginal swabs of the alleged victim and the report of the D.N.A. test had been received in the negative---Perusal of the FIR showed that none of the eye-witnesses had in fact witnessed the alleged rape and it was the minor victim herself who had disclosed to them that the accused had committed rape with her---Material available on the record showed that the present case was merely a case of an attempt which had remained abortive or a case of a mere preparation---Investigating agency had already concluded that the allegation levelled against the accused was false and that upon completion of the investigation a report had already been submitted seeking cancellation of the FIR---Case against the accused called for further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.--- Accused was admitted to bail accordingly.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Complainant in person.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab and Abdul Sittar, Inspector for the State.

2016 S C M R 2178

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Khilji Arif Hussain, JJ

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

Versus

IMRAN BADAR---Respondent

Civil Petition No.582-K of 2016, decided on 26th August, 2016.

(Against the judgment dated 28.6.2016 passed by High Court of Sindh, Circuit Court Larkana in Constitutional Petition No.D-438 of 2016)

Civil Service (Executive Branch) Rules, 1964---

----R. 5(1) [as amended by Notification dated 02-02-1999]---Recruitment Management Regulation, 2006, Regln. 0743---Sindh Public Service Commission Combined Competitive Examination---Grace marks, award of---Legality---Sindh Public Service Commission was not vested with any authority to award grace marks---Authority of Sindh Public Service Commission to grant grace marks to the deserving candidate was deleted vide a Notification dated 2-2-1999--- Furthermore regulation 0743 of Recruitment Management Regulation, 2006, which provided for qualifying/passing criteria in the 'Combined Competitive Examination', specifically forbade concession of grace marks---Supreme Court observed that deletion of provision for grant of grace marks by Sindh Public Service Commission as contained in the Civil Service (Executive Branch) Rules 1964 through amending notification dated 2-2-1999, was a positive step in furtherance of good governance aiming towards raising and increasing merits and high standard of professional competence of civil servants.

N.W.F.P. Public Service Commission v. Muhammad Arif and others 2011 SCMR 848 ref.

Adnan Karim, Additional A.-G. for Petitioners.

Athar Abbas Solangi, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2016 S C M R 2183

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Faisal Arab, JJ

Messrs CHILTAN GHEE MILLS, QUETTA and others---Petitioners

Versus

DEPUTY COLLECTOR OF SALES TAX (REFUND), CUSTOMS HOUSE, QUETTA and others---Respondents

Civil Petition No. 84-Q of 2011, decided on 3rd October, 2016.

(On appeal against the judgment dated 26.05.2011 passed by the High Court of Balochistan, Quetta in Sales Tax Appeal No.3/2004)

Sales Tax Act (VII of 1990)---

----Ss. 7, 8(1)(a) & 13---Sales tax, refund of---Scope---Adjustment of input tax could only be claimed in a situation where the goods that had been manufactured or produced fell within the definition of 'taxable supplies'---Where the goods that were to be supplied were exempt from sales tax then the question of seeking refund of the sales tax paid on the purchase of raw material used in the production of exempt supplies did not arise at all---Where a registered person was exempted from the liability of sales tax on its supplies, it did not mean that the tax that was paid on the purchase of raw material used in the making of such supplies would be liable to be refunded.

Section 7 of the Sales Tax Act, 1990 provided that for the purposes of determining tax liability in respect of 'taxable supplies', a registered person shall be entitled to deduct input tax paid during the tax period. Such concession was clearly available only when a registered person made 'taxable supplies' but was not available where the supplies were totally exempt from the sales tax liability. Such mandate of the law was further affirmed in section 8(1)(a) of the Sales Tax Act, 1990 which provided that notwithstanding anything contained in any other provision of the Act, a registered person shall not be entitled to claim input tax paid on goods that were used in the making of supplies which had been exempted from the sales tax liability under the provisions of section 13 of the said Act.

Adjustment of input tax could only be claimed in a situation where the goods that had been manufactured or produced fell within the definition of 'taxable supplies'. Where the goods that were to be supplied were exempt from sales tax then the question of seeking refund of the sales tax paid on the purchase of raw material used in the production of exempt supplies did not arise at all. The whole object behind the provision of section 8(1)(a) of Sales Tax Act, 1990 seemed to be that where at any stage sales tax has been legitimately paid then refund of input tax could not be claimed where such goods were used in the manufacture of 'exempt supplies'. Thus where a registered person was exempted from the liability of sales tax on its supplies, it did not mean that the tax that was paid on the purchase of raw material used in the making of such supplies would be liable to be refunded.

Sahibzada Muhammad Khan, M.D. in person for Petitioners.

Nemo for Respondents.

2016 S C M R 2186

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

Mian UMAR IKRAM-UL-HAQUE---Appellant

Versus

Dr. SHAHIDA HASNAIN and another---Respondents

Civil Appeal No.222-L of 2016, decided on 10th October, 2016.

(Against the judgment dated 10.6.2015 of the Lahore High Court, Lahore passed in W.P. No. 3925 of 2015)

(a) Interpretation of statutes---

----Where a statute used a particular word(s), the presumption was that such word(s) was illustrative of the legislative intent unless there were very cogent reasons to displace the same.

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

----Ss. 24 & 2(l)---Eviction application---Denial of relationship of landlord and tenant---Order for payment of rent and other dues pending proceedings---Scope---Order for payment of rent and other dues under S. 24 of the Punjab Rented Premises Act, 2009 ("the Act") could not be passed against a respondent of an eviction application when he had denied the relationship of tenancy, and leave to contest had been granted by the Rent Tribunal and an issue to that effect had also been framed---Relationship of landlord and tenant was an essential question which had a direct effect upon the assumption and exercise of the jurisdiction of the Rent Tribunal, which (question) must necessarily be positively ascertained before passing an order for payment of rent due under S. 24 of the Act.[Farrukh Nadeem v. Muhammad Ahmad Khan and another (2009 MLD 955) declared to be bad law]

Where the relationship of landlord and tenant was denied by the respondent of an eviction application, the Rent Tribunal would lack jurisdiction, on account of the doctrine of jurisdictional fact, to pass an order for payment of rent due under section 24 of the Punjab Rented Premises Act, 2009 until and unless the Tribunal positively ascertained the relationship of tenancy and established that the respondent to the eviction application was in fact a 'tenant' in terms of section 2(l) of the said Act.

Where the denial of relationship of tenant, prima facie, appeared to be tainted and contumacious, the Rent Tribunal would refrain from granting leave to the respondent as a matter of right. Instead, the Rent Tribunal, without framing an issue, could conclude that the denial (of tenancy) was contumacious in nature, and it may refuse to grant leave and allow the eviction application. Whilst doing so, the Tribunal could simultaneously pass an order under section 24 of the Punjab Rented Premises Act, 2009, finally determining the rent due from the tenant and direct that the same be deposited/paid. However, in a case, where leave had been granted to the respondent and the Tribunal had to first decide the question of its own jurisdiction, then, on account of the clear provisions of section 24 read with the definition of the word 'tenant' appearing in section 2(l) of the said the Act, the Rent Tribunal was precluded from passing an order without first determining the jurisdictional fact.

Farrukh Nadeem v. Muhammad Ahmad Khan and another 2009 MLD 955 declared to be bad law.

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

----Ss. 15 & 24---Eviction application---Default in payment of rent raised as a ground for eviction---Denial of relationship of landlord and tenant---Order for payment of rent and other dues pending proceedings---Scope---Where default in the payment of rent was set out as a ground in the eviction application, the relationship of tenancy was denied by the respondent, leave was granted to the respondent of the case, an issue in such context was framed, evidence was led by the parties, and the Rent Tribunal came to the conclusion that such relationship did exist, the Tribunal by applying the principles of estoppel and the rule of forfeiture of tenancy shall straightaway pass an order of eviction against the respondent/tenant and shall also pass the final order regarding the amount of rent due to the landlord which the respondent (adjudged as a tenant) was obliged to pay, and such order shall be executable against the tenant, besides the execution of the eviction---Where, however, grounds envisaged by S. 15 of the Punjab Rented Premises Act, 2009 ("the Act") other than default in payment of rent were raised in an eviction application, the Rent Tribunal after deciding the issue of relationship of tenancy and finding in favour of the landlord may frame further issues on merits and at that point of time pass an order for payment of rent and other dues pending proceedings under S. 24 of the Act.

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

----S. 10---Agreement to sell entered into between the landlord and the tenant after the execution of the tenancy agreement---Scope---Words 'landlord' and 'tenant' used in S. 10 of the Punjab Rented Premises Act, 2009 ("the Act") presupposed the existence of the relationship of tenancy between the parties---Agreements to sell that S. 10 of the Act referred to were, therefore, the ones entered into between existing landlords and tenants subsequent to their tenancy agreement and during the subsistence thereof, which was entirely different from those cases where there was no relationship of landlord and tenant from the very beginning.

Qamar Zaman Qureshi, Advocate Supreme Court for Appellant.

Riasat Ali Chaudhry, Advocate Supreme Court for Respondent No.1.

2016 S C M R 492

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJSC

TERVITA CORPORATION, COMPLETE ENVIRONMENTAL INC. AND BABKIRK LAND SERVICES INC.---Appellants

Versus

COMMISSIONER OF COMPETITION---Respondent

File No. 35314, decided on 22nd January, 2015.

Per Rothstein J: McLachlin C.J., Cromwell, Moldaver and Wagner, JJ. concurring; Karakatsanis, J., dissenting.

(a) Competition---

----"Merger"---Definition.

B. A. Facey and D. H. Assaf, Competition and Antitrust Law: Canada and the United States. (4th Ed., 2014), at p.205 ref.

(b) Competition---

----"Merger"--- Anti-competitive effects of merger--- Merger substantially lessening or preventing competition---Scope---"Market power"---Meaning---Merger would only be found to meet the "lessen or prevent substantially competition" standard where it was likely to create, maintain or enhance the ability of the merged entity to exercise market power, unilaterally or in coordination with other firms---Market power was the ability to profitably influence price, quality, variety, service, advertising, innovation or other dimensions of competition---Market power was the ability to maintain prices above the competitive level for a considerable period of time without such action being unprofitable; where price was generally used as shorthand for all aspects of a firm's actions that had an impact on buyers---If a merger did not have or likely have market power effects, question of substantially lessening or preventing competition would not arise---Merger's likely effect on market power was what determined whether its effect on competition was likely to be "substantial"---Two key components in assessing substantiality under the "lessening" branch were the degree and duration of the exercise of market power---Degree and duration of the exercise of market power could also be considered under the "prevention" branch.

O. Wakil, The 2014 Annotated Competition Act (2013), at p. 246; Canada (Commissioner of Competition) v. Canadian Waste Services Holdings Inc. (2001), 11 C.P.R. (4th) 425 (Comp. Trib.), at para. 7 aff d 2003 FCA 131, 24 C.P.R. (4th) 178; Canada (Director of Investigation and Research) v. Hillsdown Holdings (Canada) Ltd. (1992), 41 C.P.R. (3d) 289 (Comp. Trib.), at p. 314; J. B. Musgrove, J. MacNeil and M. Osborne, eds., Fundamentals of Canadian Competition Law (2nd ed. 2010), at p. 29 and B. A. Facey and C. Brown, Competition and Antitrust Laws in Canada: Mergers, Joint Ventures and Competitor Collaborations (2013), at p.141 ref.

(c) Competition---

----Merger and acquisition---Merger preventing competition or likely to prevent competition substantially---Legal test to determine whether a proposed transaction may result in a substantial prevention of competition stated.

Test for assessing whether a merger prevented competition or was likely to prevent competition was to compare the likely competitive effects of the merger to the likely competitive environment "but for" the merger. Words "likely to prevent or lessen" competition pointed to events in the future, therefore, the test for merger review was forward-looking. Merger review, by its nature, required examining a counterfactual scenario; whether the merger would give the merged entity the ability to prevent or lessen competition substantially compared to the pre-merger benchmark or 'but for' world.

Test for assessing whether a merger prevented competition or was likely to prevent competition was a three step test. First step was to identify the potential competitor and assess whether 'but for' the merger that potential competitor was likely to enter the market and determine whether its effect on the market would likely be substantial. In the competition law jurisprudence "entry" was considered either the establishment of a new firm in the market whether entirely new to the industry or new to the geographic area or local firms which previously did not offer the product in question commencing to do so. Typically, the potential competitor would be one of the merged parties: the acquired firm or the acquiring firm. The potential entry of the acquired firm would be the focus of the analysis when, but for the merger, the acquired firm would likely have entered the relevant market. The potential entry of the acquiring firm will be the focus of the analysis when, but for the merger, the acquiring firm would have entered the relevant market independently or through the acquisition and expansion of a smaller firm. A likely substantial prevention of competition could also stem from the merger preventing another type of future competition, meaning that it was possible that a third party entrant, one not involved in the merger, may be prevented from entering the market as a result of the merger.

Second step in assessing whether a merger prevented or was likely to prevent competition was to examine the "but for" market condition to see if, absent the merger, the potential competitor (usually one of the merging parties) would have likely entered the market and if so whether that entry would have decreased the market power of the acquiring firm. If the independent entry had no effect on the market power of the acquiring firm then the merger could not be said to prevent competition substantially. Findings of a Competition Tribunal in such regard must not be speculative but must be based on evidence. Tribunal must be of the view that it was more likely than not that the merger would result in a substantial prevention of competition. Mere possibilities were insufficient to meet this standard. Moreover, the further into the future that the Competition Tribunal must look, the more difficult it would be to show that a prevention of competition was likely.

In determining whether one of the merging parties would, in the absence of the merger, be likely to enter the market independently, any factor that in the opinion of the Competition Tribunal could influence entry upon which evidence had been adduced should be considered. This would include the plans and assets of that merging party, current and expected market conditions, etc. Where the evidence did not support the conclusion that one of the merging parties or a third party would enter the market independently there could not be a finding of likely prevention of competition by reason of the merger. To the same effect, where the evidence was only that there was a possibility of the merging party entering the market at some time in the future, a finding of likely prevention could not be made. Timeframe for entry must be discernible. While timing did not need to be a precisely calibrated determination, there must be evidence of when the merging party was realistically expected to enter the market in absence of the merger. Otherwise the timing of entry was simply speculative and the test of likelihood of prevention of competition was not met. Even where there was evidence of a timeframe for independent entry, the farther into the future predictions were made, the less reliable they would be. Competition Tribunal must be cautious in declaring a lengthy timeframe to be discernible, especially when entry depended on a number of contingencies. In assessing whether a merger would likely prevent competition substantially, neither the Competition Tribunal nor courts should claim to make future business decisions for companies. Factual findings about what a company may or may not do must be based on evidence of the decision the company itself would make; not the decision the Tribunal would make in the company's circumstances.

Third and final step in assessing whether a merger prevented or was likely to prevent competition was to determine whether entry of merging party would likely result in a 'substantial effect' on competition in the market. It was not enough that a potential competitor must be likely to enter the market; such entry must be likely to have a substantial effect on the market. Assessing substantiality required assessing a variety of dimensions of competition including price and output. It also involved other factors assessing the degree and duration of any effect it would have on the market, whether a party was a failing business, the availability of acceptable substitutes, barriers to entry into the relevant market, the extent to which effective competition remained or would remain after a merger, and whether the merger would result in the removal of a vigorous and effective competitor.

(d) Competition---

----Merger and acquisition---Merger likely to prevent competition substantially---Exemption---Efficiencies defence---Merger likely to prevent competition substantially but the efficiencies generated by the merger offsetting any proven anti-competitive effects---Proper approach to be adopted by courts for the efficiencies defence stated.

Section 96 of Competition Act, R.S.C. 1985(Canada) provided a defence to mergers that were otherwise likely to lessen or prevent competition where the efficiencies from the merger were likely to be greater than and offset the merger's anti-competitive effects.

Efficiency defence required an analysis of whether the efficiency gains of the merger, which resulted from the integration of resources, outweighed the anti-competitive effects, which resulted from the decrease in or absence of competition in the relevant geographic and product market. In making such determination, the Competition Tribunal may choose between different possible methodologies for determining the efficiencies including the "total surplus standard" and "balancing weights standard".

Although the merging parties had to prove their claimed efficiencies gains, it was the Competition Commissioner's burden to prove the quantitative and qualitative anti-competitive effects of a merger and to quantify those effects wherever possible. Any effects that were realistically measurable could not be considered on a qualitative basis if no quantitative evidence was provided.

Commissioner of Competition had the burden to prove the anti-competitive effects. The merging parties bore the onus of establishing all other elements of the efficiencies defence, including the extent of the efficiency gains and whether the gains were greater than and offset the anti-competitive effects.

Commissioner's burden was to quantify by estimation all quantifiable anti-competitive effects. Estimates were acceptable as the analysis was forward-looking and looked to anti-competitive effects that would or were likely to result from the merger. Competition Tribunal accepted estimates because calculations of anti-competitive effects did not have the precision of history. However, to meet the burden, the Commissioner must ground the estimates in evidence that could be challenged and weighed. Qualitative anti-competitive effects, including lessening of service or quality reduction, were only assessed on a subjective basis because such analysis involved a weighing of considerations that could not be quantified because they had no common unit of measure (that is, they were "incommensurable"). Due to the uncertainty inherent in economic prediction, the analysis must be as analytically rigorous as possible in order to enable the Competition Tribunal to rely on a forward-looking approach to make a finding on a balance of probabilities.

Where the Commissioner of Competition failed to quantify all quantifiable effects, it was a failure to meet his legal burden and, as a result, the quantifiable anti-competitive effects should be fixed at zero. Quite simply, where the burden was not met, there were no proven quantifiable anti-competitive effects.

Distinction had to be drawn between quantitative and qualitative effects of merger, and then a two-step inquiry should be made. First, the quantitative efficiencies of the merger at issue should be compared against the quantitative anti-competitive effects. Where the quantitative anti-competitive effects outweighed the quantitative efficiencies, this first step would in most cases be dispositive, and the efficiencies defence would not apply. Second, the qualitative considerations must next be weighed. Qualitative efficiencies should be balanced against the qualitative anti-competitive effects, and a final determination must be made as to whether the total efficiencies offset the total anti-competitive effects of the merger at issue. In most cases qualitative effects of a merger were of lesser importance than quantitative effects.

Where environmental effects of a merger had economic dimensions, such effects may properly be considered under the balancing exercise between quantitative and qualitative efficiencies and their corresponding anti-competitive effects.

There was no minimum threshold of efficiency gains that must be found in order for the efficiency defence to apply. Efficiencies were not required to substantially outweigh the anti-competitive effects for the defence to apply. Merging parties were not required to establish "more than marginal" efficiency gains. Where the Commissioner of Competition had failed to meet his onus, even a marginal showing of efficiency gains may redeem an anti-competitive merger, meaning that potentially small degrees of net efficiencies were enough for the defence to apply.

Per Karakatsanis, J; dissenting: With respect to efficiencies defence, majority opinion in the present case that qualitative effects of a merger were of lesser importance than quantitative effects, was not correct. Indeed, many important anti-competitive effects of a merger may be qualitative in nature, and in some cases, those qualitative effects may be determinative for purposes of the efficiencies defence. Relative significance of qualitative and quantitative gains or effects could only be determined in the circumstances of each case. It was neither helpful nor necessary to predetermine their relative role and importance in the efficiencies defence.

Efficiencies defence was about balancing overall efficiency gains against overall anti-competitive effects, providing an appropriate level of flexibility. It allowed the Competition Tribunal to holistically assess the entirety of the evidence before it, rather than artificially bifurcating the analysis of qualitative and quantitative effects.

Commissioner of Competition bore the evidentiary burden to lead evidence of the anti-competitive effects of a merger, and bore the risk that the failure to fully quantify such effects where possible may render the evidence insufficient to counter the evidence of efficiency gains. However, the failure of Commissioner to quantify quantifiable anti-competitive effects did not invalidate the evidence that established there was a known anti-competitive effect of undetermined extent. Relevant evidence was generally admissible, and the failure to lead the best evidence available went to weight, not admissibility or relevancy of such evidence. Purpose and context of efficiencies defence did not require that an anti-competitive effect of undetermined weight became irrelevant or inadmissible.

Anti-competitive effects that could be quantified should be quantified. However, negligible gains in efficiency would not necessarily outweigh and offset known anti-competitive effects, even if they were assigned an "undetermined" weight.

Per Rothstein J: McLachlin C.J., Cromwell, Moldaver and Wagner, JJ concurring; Karakatsanis, J., dissenting.

(e) Competition---

----Merger and acquisition---Merger likely to prevent competition substantially--- Exemption--- Efficiencies defence---Scope---Gains in efficiency resulting from merger greater than and offsetting anti-competitive effects of merger---In the present case appellant-company acquired company 'C' and its wholly owned subsidiary, 'B'---Said merger was likely to result in a prevention of competition but the efficiencies generated by the merger offset any proven anti-competitive effects---Commissioner of Competition failed to meet her burden to prove the quantifiable anti-competitive effects of the merger---Supreme Court agreed that the merger would likely prevent competition substantially, however, it accepted appellant-company's efficiencies defence and allowed the merger.

Appellant-company owned the only two hazardous waste landfills in a certain area. Appellant-company acquired company 'C' and its wholly owned subsidiary, 'B', which held a permit to develop and operate a new hazardous waste landfill in the same area. Commissioner of Competition opened an investigation as a result of market place complaints and ultimately challenged the acquisition seeking an order requiring the parties to unwind the transaction or divest 'B' on the basis that it was likely to result in a substantial prevention of competition in the market for the disposal of solid hazardous waste produced at oil and gas fields. Commissioner alleged that, because appellant-company owned the only two operating secure landfills in the said area, it would have a monopoly and associated market power that would allow it to set prices above competitive levels. Appellant-company argued that the transaction would not result in a prevention of competition because the sellers did not intend to open a competing landfill business; and that the efficiency gained arising from the transaction were greater than, and would offset the effects of any prevention of competition.

Sufficient evidence was available on record to suggest that, "but for" the merger, the sellers would have ultimately established a secure landfill in the region to compete with appellant-company. Thus the acquisition of company 'C' and its subsidiary, 'B' by appellant-company resulted in a likely prevention of competition.

Once the appellant-company, in the present case, had successfully proved that the merger gave rise to efficiency gains, the Commissioner of Competition had the burden to prove the quantifiable anti-competitive effects of the merger that were to be weighed against the efficiency gains. In the present case, the Commissioner had failed to provide measurements of the quantifiable anti-competitive effects, thus she had failed to meet her burden to prove the quantifiable anti-competitive effects of the merger. Since no quantitative or qualitative effects of the merger were proven, the efficiency gains proven to result from the merger were greater than and offset any anti-competitive effects of the merger, meaning that the efficiencies defence applied to the merger in the present case.

John B. Laskin, Linda M. Plumpton, Dany H. Assaf and Crawford G. Smith for Appellants.

Christopher Rupar, John Tyhurst and Jonathan Hood for Respondent.

2016 S C M R 296

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson and Lord Hodge

CAVENDISH SQUARE HOLDING BV---Appellant

Versus

TALAL EL MAKDESSI---Respondent

(On appeal from [2013] EWCA Civ 1539)

BEAVIS---Appellant

Versus

PARKINGEYE LIMITED---Respondent

(On appeal from [2015] EWCA Civ 402)

Decided on 4th November, 2015.

Per Lord Neuberger (President) and Lord Sumption, JJSC; Lord Clarke and Lord Carnwath, JJSC agreeing; Lord Mance and Lord Hodge, JJSC concurring; Lord Toulson partly dissenting.

(a) Contract---

----Penalty clauses---Common law rule that contractual penalty clauses were not enforceable ("penalty rule")---Types of clauses in a contract to which penalty rule was applicable stated.

An important question was as to what were the circumstances when the principles relating to contractual penalty clauses ("the penalty rule") were engaged? Penalty rule regulated only the remedies available for breach of a party's primary obligations, not the primary obligations themselves.

Export Credits Guarantee Department v. Universal Oil Products Co [1983] 1 WLR 399 ref.

Leaving aside challenges going to the reality of consent, such as those based on fraud, duress or undue influence, the courts do not review the fairness of bargains, either at law or in equity. Thus, where a contract contained an obligation on one party to perform an act, and also provided that, if he did not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum was a secondary obligation which was capable of being a penalty; but if the contract did not impose (expressly or impliedly) an obligation to perform the act, but simply provided that, if one party did not perform, he will pay the other party a specified sum, the obligation to pay the specified sum was a conditional primary obligation, and could not be a "penalty".

Classification of terms for the purposes of the penalty rule depended on the substance of the term and not mere form. Further, although the payment of money was the classic obligation under a penalty clause, there was no reason why the penalty rule should not apply to an obligation to transfer assets (either for nothing or at an undervalue).

Per Lord Mance: Penalty rule applied not only to clauses involving payment of money on breach; it also equally applied to clauses withholding payments on breach, and transfer of money or money's worth in the form of property belonging to party in breach, and could also apply alongside relief against forfeiture.

Per Lord Hodge: Law on penalties should not be confined to clauses that required the contract-breaker to pay money in the event of breach, it should also be extended to clauses that in the same circumstance allowed the innocent party to withhold moneys which were otherwise due.

Rule against penalties could apply alongside relief against forfeiture. Contractual provision which involved forfeiture of sums otherwise due, could be subjected to the rule against penalties, if the forfeiture was wholly disproportionate either to the loss suffered by the innocent party or to another justifiable commercial interest which that party had sought to protect by the clause. Court should ask first whether, as a matter of construction, the clause was a penalty and, if it answered that question in the negative, then it could consider (where relevant) whether relief against forfeiture should be granted in equity having regard to the position of the parties after the breach and the circumstances in which the contract was broken.

Rule against penalties also extended to clauses that required the contract-breaker to transfer property to the innocent party on breach.

Certain clauses requiring the purchaser of property to pay an extravagant non-refundable deposit (token money) to the seller were also subject to the penalty rule. Where the deposit (token money) was fixed at a reasonable figure, its forfeiture on breach of contract did not bring into play the rule against penalties, its purpose not being related to any loss that the seller may have suffered and that he may seek to recover in damages. However a clause which stipulated a deposit which was not reasonable as earnest money may be challenged as a penalty. Also where the stipulated deposit exceeded the percentage set by long established practice the seller must show special circumstances to justify such deposit if it was not to be treated as an unenforceable penalty.

(b) Contract---

----Penalty clauses---Enforceability---Test for determining whether a provision in a contract was a "penalty clause", and hence unenforceable, stated.

Principles underlying the law relating to contractual penalty clauses ("the penalty rule") was an ancient, haphazardly constructed edifice which has not weathered well.

Law relating to penalties had become the prisoner of artificial categorisation, with unsatisfactory distinctions being drawn between a penalty and a genuine pre-estimate of loss and a genuine pre-estimate of loss and a deterrent. The established four tests on penalties set out by Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 394 had been applied over-literally and did not reflect the complexity of modern commercial transactions.

The real question when a contractual provision was challenged as a penalty was whether it was penal (i.e. a punishment), not whether it was a genuine pre-estimate of loss. These were not natural opposites or mutually exclusive categories. A damages clause may be neither or both; the fact that the clause was not a pre-estimate of loss did not therefore, at any rate without more, mean that it was penal. To describe a clause as a 'deterrent' did not add anything - a deterrent was just another provision in a contract designed to influence the conduct of a party. Whether a deterrent provision was enforceable would depend on the means by which the contracting party's conduct was to be influenced were "unconscionable" or "extravagant" by reference to some norm.

True test for determining whether a clause was a penalty, was whether the impugned provision was a secondary obligation which imposed a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. If so, the clause would be penal and therefore unenforceable. The fact that a clause was not a pre-estimate of loss would not, without more, mean that it was penal. In a straightforward damages clause, the innocent party's interest would rarely extend beyond compensation for breach, and so the traditional four tests set out by Lord Dunedin's in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 394 would usually be perfectly adequate to determine its validity. However, compensation was not necessarily the only legitimate interest which the innocent party might have in the performance of the defaulter's primary obligations; a party may have a legitimate interest in the enforcement of the contract which extended beyond the recovery of compensation for breach, in which case the clause would be upheld unless it was out of all proportion to that interest.

Circumstances in which a contract was made and the nature of the parties were also relevant in considering the application of the penalty rule. In a negotiated contract between properly advised parties of comparable bargaining power, the strong initial presumption must be that the parties themselves were the best judges of what was legitimate in a provision dealing with the consequences of breach.

Per Lord Mance: When considering whether a clause was penalty clause, the first thing to consider was, whether any (and if so what) legitimate business interest was served and protected by the clause, and, second, whether, assuming such an interest did exist, the provision made for the interest was nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what was extravagant, exorbitant or unconscionable, the extent to which the parties were negotiating at arm's length on the basis of legal advice and had every opportunity to appreciate what they were agreeing must at least be a relevant factor.

Per Lord Hodge: Correct test for a penalty was whether the sum or remedy stipulated as a consequence of a breach of contract was exorbitant or unconscionable when regard was had to the innocent party's interest in the performance of the contract. Any clause fixing a level of damages payable on breach would be a penalty and thus unenforceable if there was an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach. In other circumstances the contractual provision that applied on breach was measured against the interest of the innocent party which was protected by the contract and the court asked whether the remedy was exorbitant or unconscionable.

(c) Contract---

----Penalty clauses---Share purchase and shareholders' agreement ("the agreement")---Restrictive trade covenant/non-competition clauses---Price adjustment clause---Call option---Clauses in share purchase agreement providing that if seller (of shares) breached non-competition restrictions stipulated in the agreement, he lost his entitlement to two deferred installments that would otherwise be payable, and that buyer could trigger a call option i.e. require seller to sell his remaining shares to the buyer at a price which did not include goodwill---Both said clauses were not penalty clauses, instead they related to primary obligations of the seller and the legitimate interest of the buyer in the observance of the restrictive covenants in order to protect the goodwill of the business he had brought from the buyer---Both parties, in the present case, who were commercially experienced and bargained on equal terms over a long period with expert legal advice, were the best judges of how their proper commercial interests should be reflected in the agreement---Lord Mance: When considering whether certain clauses were penalty clause, the focus should be on the overall picture and the general interest being protected, not on the individual breaches or their timing or consequences---Both clauses in question, in the present case could not be regarded as extravagant, exorbitant or unconscionable---Lord Hodge: Seller was selling shares of a company, which operated in a region of the world where personal relationships were very important---Success of the company's business depended on the personal relationships which the sellers had built up with their key clients---In such background the share purchase agreement was structured to protect the goodwill of the company, once its shares were brought by the buyer---Buyer thus had a very substantial legitimate interest to protect by making the deferred installments depended upon the continued loyalty of the sellers---Clause relating to call option which require seller to sell his remaining shares against his will in case of breach at a price not including goodwill was harsh but not exorbitant; it was a legitimate means of encouraging the sellers to comply with their non-competition obligations which were critical to buyer's investment.

Defendant 'M' and defendant 'G', owners of an advertising and marketing communications group (the Group), entered into an agreement to sell 47.4 per cent of the Group to claimant-company (giving claimant a stake of 60 per cent overall). A large proportion of the purchase price, which was to be paid by installments, represented goodwill. Under the terms of the agreement, defendants were obliged to refrain from competing activities for a number of years. If a defendant did not comply with these restrictive covenants, the contract stipulated that; he would no longer be entitled to two of the payment installments still due to be paid (clause 5.1); and he could be required to sell his remaining holding in the Group to claimant, for a sum ignoring any value for goodwill (clause 5.6). Subsequently defendant 'M' breached the non-competition clause in the agreement. Claimant commenced proceedings against defendant 'M' contending that in terms of clauses 5.1 and 5.6 of the agreement, defendant 'M' was not entitled to further (i.e. deferred) payments and he also was obliged to sell to the claimant all his shares in the Group at a price, which did not include the value of the goodwill. Defendant 'M' alleged that clauses 5.1 and 5.6 constituted penalty clauses, and were therefore unenforceable.

Clauses 5.1 and 5.6 of the agreement were not penalty clauses, essentially for two reasons. First, in substance, they were not secondary obligations but rather primary obligations under the contract. i.e. the clauses could not be treated as invalid without re-writing the contract and it was not for the Court to assess the fairness of those provisions. They were not contractual alternatives to damages. Clause 5.1 of the agreement depriving defendant 'M' of his entitlement to two deferred installments was, in reality, a price adjustment clause. Although the occasion for its operation was a breach of contract, it was in no sense a secondary provision. Similarly, clause 5.6 of the agreement requiring defendant 'M' to sell his remaining shares, at a price which excluded the value of goodwill, reflected the reduced price which claimant was prepared to pay for the business in circumstances where it could not count on the loyalty of defendant 'M'. Second, the clauses were justified by claimant's legitimate interest in the observance of the restrictive covenants in order to protect the goodwill of the business. Goodwill had been highlighted during the contract negotiations as very important - it was critical to the value of the business from claimant's perspective.

Whilst clause 5.6 may be described as a deterrent, it would only be invalid if the object was to punish. In the present case, clause 5.6 had a legitimate function which, had nothing to do with punishment and everything to do with achieving claimant's commercial objective in acquiring the business.

Parties, who were sophisticated, successful and experienced commercial people bargaining on equal terms over a long period with expert legal advice, were the best judges of how their proper commercial interests should be reflected in the agreement.

Per Lord Mance: In the present case, claimant was protecting the whole of the business, of which it was to be majority shareholder, involving many actual and potential transactions with many different customers, by imposing a competitive restriction on the sellers (defendants) from whom it was buying the majority control. Any breach of non-competition clause could and would change in a fundamental respect the risk element involved in claimant's purchase of a large block of shares in the Group. The essence of what the parties were agreeing was that goodwill was crucial, and that there could be no further question of paying for any goodwill element of a defendant's shares if he committed a breach of his non-competitive obligations. In such circumstances, it was understandable that claimant should no longer be prepared to pay any further goodwill element, once competitive activity by defendant 'M' had cast a doubt over the current and future value of the Group's goodwill.

When considering whether certain clauses were penalty clause, the focus should be on the overall picture and the general interest being protected, not on the individual breaches or their timing or consequences.

In the present case, the agreement was made deliberately and advisedly between informed and sophisticated parties. Effect of Clause 5.1 was to revise the basic price calculation for the shares which had been agreed to be sold, and, so viewed in the context of a carefully negotiated agreement between informed and legally advised parties at arm's length, Clause 5.1 should not be regarded as extravagant, exorbitant or unconscionable. Clause 5.1 could not be condemned as penal, thus it was enforceable.

Clause 5.6 of the agreement was a provision requiring party in breach to transfer property in his remaining shares against his will at a price based on net asset value alone. Said clause was explained in terms of a desire to sever all interest from someone who had breached his contract. Once a defendant breached the non-competition clause, it was in principle understandable and a natural consequence that he should be required to sever any shareholding relationship completely by selling his remaining shares to the claimant. Clause 5.6 of the agreement, which was a carefully negotiated clause, attributing a nil value to goodwill on a forced severance of shareholding relationships triggered by a breach of basic restrictive covenants, could not be regarded as exorbitant or unconscionable.

Per Lord Hodge: Clause 5.1 of the agreement was not an unenforceable penalty clause for various reasons. First, it was important to consider the nature of the obligations of the sellers (i.e. defendants) which could trigger the withholding of the installments under clause 5.1. Having sold substantial blocks of shares in the company for a price which attributed a high value to its goodwill, the sellers (defendants) were prohibited from derogating from what they had sold. Secondly, the factual matrix of the case showed the importance of personal relationships in the marketing sector and particularly in the region of the world where the Group operated. Success of the Group's business depended on the personal relationships which the sellers (defendants) had built up with their key clients. In such background the share purchase agreement was structured to protect the goodwill of the Group. The continued loyalty of the sellers (defendants) was critically important to preserving the value of the Group's goodwill. Thirdly, the evidence and the agreement itself showed that a large proportion of the agreed purchase price was attributable to that goodwill. Claimant company therefore needed to be assured of the sellers' (defendants') loyalty. Claimant had a very substantial and legitimate interest in protecting the value of the company's goodwill, and it did so by giving the sellers (defendants) a strong financial incentive to remain loyal by complying with the restrictions set out in agreement. Sellers (defendants), who, like the claimant company, had access to expert legal advice and negotiated the contract over several months, agreed to peril their entitlement to the deferred consideration on their continued loyalty. Fourthly, clause 5.1 only addressed the disloyalty of a seller (defendant) who was prepared in any way to attack the Group's c goodwill, thus it was neither exorbitant nor unconscionable.

Clause 5.6 of the agreement was secondary obligation, which was designed to deter the sellers (defendants) from breaching their non-competition obligation. Clause 5.6 was not a provision which fixed the damages payable for a breach of contract; it sought to regulate the terms on which a defaulting shareholder severed his connection with the company. Defaulting shareholder option price, which was the net asset value of the company excluding any goodwill value, was not an exorbitant or unconscionable undervaluation when measured against claimant's legitimate interest in protecting its investment from the risk of either of the sellers (defendants) acting against the Group's interests. Provisions of clause 5.6 were harsh, but they were not exorbitant. Clause 5.6, in the particular context of the purchase of a marketing business in the region of the world where the Group operated, was a legitimate means of encouraging the sellers (defendants) to comply with their non-competition obligations which were critical to claimant's investment.

(d) Contract---

----Penalty clauses--- Car park---Time limit of 2 hours for free parking---Parking charge for customers overstaying the two hour limit---Notice and signs at entrance of car park mentioning that any customer overstaying the two hour limit would pay a £85 charge---Said charge of £85 was not penal because it was justified by parking company's legitimate interest in imposing the charge, which went beyond recovery of any loss---Said charge had two main objects; managing the efficient use of the car park, by deterring motorists occupying spaces for long periods, and providing an income stream to enable the parking company to meet the costs of the scheme and make a profit from its services---Both objectives were perfectly reasonable, and the imposition of a charge to deter over stayers was a reasonable mode of achieving them---Charge of £85 was not out of all proportion to parking company's interest in imposing the charge, and so it was not penal---Lord Hodge: Charge of £85 was not excessive as it was in line with the prevailing authorised practices in the Country---Charge in question was also not unconscionable since motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge.

Once the defendant entered the car park and parked his car there, he had a contractual licence with the parking company on the terms of the notice posted at the entrance, which he had accepted by entering the site. One such term displayed on the notice at the entrance was that maximum parking time was 2 hours, and in case a customer breached such term he would pay a £85 charge. The £85 charge was payable upon a breach of contract (overstaying the 2 hour free period), and it was not a genuine pre-estimate of damages (since the operator lost nothing by the unauthorised use).

The £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets and of the users of those outlets. That was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices. The other purpose was to provide an income stream to enable the claimant to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. Said two objectives were perfectly reasonable in themselves and, subject to the penalty rule, the imposition of a charge to deter overstayers was a reasonable mode of achieving them. While the penalty rule was plainly engaged in the present case, the £85 charge was not a penalty. Although the claimant was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss. None of this however meant that parking company could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner of the car park for whom it was providing the service. There was no reason to suppose that £85 charge (which was a common charge for overstaying in the UK) was out of all proportion to the claimant's interests. The charge was neither extravagant nor unconscionable.

Per Lord Mance: Charge of £85 for overstaying had to have, and indeed was intended to have, a deterrent effect in the present case, however it was neither improper in its purpose nor manifestly excessive in its amount. Said charge was an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agreed to the scheme by doing so. Charge was commercially justifiable, not only from the viewpoints of the landowner and the parking company, but also from that of the great majority of motorists who enjoyed the benefit of free parking at the site, effectively paid for by the minority of defaulters, who had been given clear notice of the consequences of overstaying.

Per Lord Hodge: Parking company had a legitimate interest to protect. It undertook to manage the car park for the landlord in a way which benefitted the landlord and the retailers and also the public seeking to visit units within the retail park by encouraging the public to remain in the car park for no longer than two hours. Parking company imposed the parking charge of £85 in order to encourage the prompt turnover of car parking spaces and also to fund its own business activities and make a profit. Parking charge would not be justified or exorbitant if it were out of all proportion to the legitimate interest of the parking company. However, evidence in the present case in the form of prevailing authorised practices suggested that charge of £85 was not excessive as it was common practice in the Country to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85. Fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supported the view that the parking charge of £85 was not unconscionable.

Per Lord Toulson, dissenting [Minority view]: Clause stipulating a charge of £85 infringed the Unfair Terms in Consumer Contracts Regulations 1999. Burden was on parking company to show that customer would have agreed to the terms of parking in individual negotiations on level terms. Parking company failed to show grounds for assuming that a customer who was in a position to bargain individually, and who was advised by a competent lawyer, would have agreed to the penalty clause (£85) as it stood.

Per Lord Mance, JSC; concurring with Lord Neuberger (President) and Lord Sumption, JJSC.

(e) Contract---

----Penalty clauses---Enforceability---Clause in agreement providing that party in breach would be forced to transfer (asset) to other party for no consideration or for a consideration which did not reflect the value of the asset transferred---Such a clause may constitute a penalty within the scope of the penalty doctrine, and thus would be unenforceable.

Per Lord Hodge, JSC; concurring with Lord Neuberger (President) and Lord Sumption, JJSC.

(f) Contract---

----Penalty clauses---Rule that contractual penalty clauses were not enforceable ("rule against penalties")---Applicability---Rule against penalties applied only in the context of a breach of contract---Rule against penalties applied only in relation to secondary obligations i.e. penal remedies for breach of contract.

Joanna Smith QC, Richard Leiper, James McCreath and Edwin Peel (Instructed by Squire Patton Boggs (UK) LLP) for Appellant (Cavendish Square Holding BV).

John de Waal QC, David Lewis and Ryan Hocking (Instructed by Harcus Sinclair) for Appellant (Beavis).

Michael Bloch QC and Camilla Bingham QC (Instructed by Clifford Chance LLP) for Respondent (Talal El Makdessi).

Jonathan Kirk QC, David Altaras and Thomas Samuels (Instructed by Cubism Law) for Respondent (Parking Eye Limited).

Christopher Butcher QC (Instructed by Consumers' Association In-House Lawyers) for Intervener (Consumer's Association).

Dates of hearing: 21st, 22nd and 23rd July, 2015.

2016 S C M R 963

[Supreme Court of UK]

Present Lord Neuberger, President, Lady Hale, Deputy President, Lord Dyson, Lord Reed and Lord Toulson

A M MOHAMUD---Appellant

Versus

WM MORRISON SUPERMARKETS PLC---Respondent

Decided on 2nd March, 2016.

(On appeal from [2014] EWCA Civ 116)

Per Lord Toulson, JSC; Lord Neuberger (President), Lady Hale (Deputy President), Lord Dyson and Lord Reed, JJSC agreeing.

(a) Tort---

----Vicarious liability---Pre-requisites---Vicarious liability in tort required, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoer's act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer's conduct.

(b) Tort---

----Vicarious liability---Historic origins and development of principle of vicarious liability traced through case-law.

Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366; Holdsworth's A History of English Law (1908) (vol 3, pp 383-387); Boson v Sandford (1691) 2 Salk 440; Tuberville v Stamp (1698) 1 Ld Raym 264, Skinner 681, SC Comb 459; Hern v Nichols (1700) 1 Salk 289; Sir Robert Wayland's case (1706) 3 Salk 234; Middleton v Fowler (1699) 1 Salk 282; Barwick v English Joint Stock Bank (1867) 2 LR Exch 259, 265; Lloyd v Grace, Smith & Co [1912] AC 716; Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317, 339; Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394, 410; Petterson v Royal Oak Hotel Ltd [1948] NZLR 136; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Warren v Henlys Ltd [1948] 2 All ER 935; Keppel Bus Co Ltd v Ahmad [1974] 1 WLR 1082; Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796, 802; Rose v Plenty [1976] 1 WLR 141 and Bazley Curry (1999) 174 DLR (4th) 45 ref.

(c) Tort---

----Vicarious liability---Tort committed by employee during course of employment---Employer vicariously liable---'Close-connection' test---Proposed 'representative capacity' test---His Lordship in re-affirming the 'close connection' test as set forth in the cases of Lister v Helsey Hall Ltd [2001] UKHL 22 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 observed that there was need to alter the said test and replace it with the 'representative capacity' test; proposed by the claimant in the present case that the close connection test was sufficient and had been consistently followed in later cases at the highest level. [Per Lord Dyson: 'Close connection' test was firmly rooted in justice---"Representative capacity" test proposed by the claimant in the present case was hopelessly vague.

Contention of appellant that in place of the "close connection" test the courts should apply a broader test of "representative capacity", meaning that in the case of a tort committed by an employee, the decisive question should be whether a reasonable observer would consider the employee to be acting in the capacity of a 'representative' of the employer at the time of committing the tort.

Per Lord Toulson: His Lordship in re-affirming the 'close connection' test observed that there was need to alter the said test in the way proposed by the appellant; that the close connection test was sufficient and had been consistently followed in later cases at the highest level.

Bernard v Attorney General of Jamaica [2004] UKPC 47; [2005] IRLR 398; Brown v Robinson [2004] UKPC 56; Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34; [2007] 1 AC 224 and Various Claimants v Catholic Child Welfare Society [2012] UKHL 56; [2013] 2 AC 1 ref.

Per Lord Dyson: Close connection test had been repeatedly applied by the courts for some years. Said test should only be abrogated or refined if a demonstrably better test could be devised. Far from being demonstrably better, the new "representative capacity" test proposed by the appellant was hopelessly vague. Question was as to what "representative capacity" meant in such context, and by what criteria was the court to determine the circumstances in which the reasonable observer would consider the employee to be acting in a representative capacity. Proposed "representative capacity" test was not precise than the 'close connection' test and did not better reflect modern views of justice. Attraction of the close connection test was that it was firmly rooted in justice. It asked whether the employee's tort was so closely connected with his employment as to make it just to hold the employer liable.

(d) Tort---

----Vicarious liability---Assault committed by employee of a supermarket during course of employment---Employer (supermarket) vicariously liable---'Close connection' test---Principles and scope---Question whether there was sufficient connection between the employee's employment and his conduct towards the claimant to make the employer (supermarket) legally responsible---Correct test was to consider what, broadly speaking, was the nature of the employee's employment and then ask whether the employee's tort was so closely connected with that employment that it would be just to hold the employer (supermarket) liable---In the present case, the employee's job had been to attend to customers and respond to their inquiries---Unbroken sequence of events occurred in the present case starting from employee's initial attending to the claimant (customer) and talking to him in an offensive manner, then following him onto the forecourt and ordering him never to return to the supermarket and finally assaulting the claimant (customer)---Although such actions had been a gross abuse of the employee's position, they had been in connection with the business in which he had been employed to serve customers---In such circumstances it was just that the employer (supermarket) should be liable for its employee's abuse of his position.

Claimant visited a kiosk of a supermarket (employer) and asked one of its employees whether he could print off some images from a USB stick. Employee, who worked behind a counter, used foul and abusive language against the customer, and told him to leave. Claimant went to his car, but was followed by the employee, who opened the passenger door and told the claimant in a threatening manner never to come back. When claimant asked him to shut the door, he was severely assaulted by the employee, despite his supervisor telling him to stop. Question in such circumstances was whether there was a sufficiently close connection between what the employee was employed to do and assaulting a customer, so as to make the supermarket/employer vicariously liable for the assault by its employee.

Court must consider two matters: first, what functions or field of activities had been entrusted by the employer supermarket to its employee; and second, whether there was a sufficient connection between the position in which employee was employed, and his wrongful conduct, to make it right for the supermarket to be held liable under the principle of vicarious liability. In assessing the first matter, inquiry of functions entrusted to employee must be undertaken on a broad level. Correct question to ask was what was the job on which the employee was engaged for his employer. As regards the second matter, the inquiry conducted in such regard should also be a broad one. To try to measure the closeness of the connection, as it were, on a scale of one to ten, would be a forlorn exercise and, it would miss the point.

Ilkiw v Samuels [1963] 1 WLR 991, 1004; Lister v Hesley Hall Ltd [2002] 1 AC 215, HL(E) and Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, HL(E) ref.

Applying the test in the present case it was the employee's job to attend to customers and respond to their inquiries. His foul-mouthed response and ordering the claimant to leave was inexcusable but within the field of activities assigned to him. There was no break in the chain by employee following the claimant to his car. It was a seamless episode and an unbroken sequence of events, and accordingly fell within the boundaries of vicarious liability. Further, when employee opened the passenger door of claimant's car, he ordered the claimant to keep away from his employer's premises, which was reinforced by the assault. It was not something personal between them. Fact that the assault was a gross abuse of employee's position was irrelevant. Employee's true motive was also irrelevant to the inquiry as to whether the supermarket/employer was vicariously liable: although employee was motivated by personal racism, this did not affect whether he was acting within the field of activities assigned to him in the present case. It was not correct to regard the employee as having metaphorically taken off his uniform the moment he stepped out from behind the counter - he was following up on what he said to the claimant. When employee followed the claimant to his car and told him not to come back to the petrol station, it was effectively an order to keep away from his employer's premises, which was reinforced by violence. In giving such order, employee was purporting to act about his employer's business.

Employee, in the present case, had committed a gross abuse of his position but his conduct was closely connected to the scope of his employment. Supermarket/employer had entrusted him to serve customers and deal with members of the public and it was just that they should be responsible for his abuse of this trust. Supermarket (employer) was held to be vicariously liable for the assault committed by its employee. Appeal was allowed accordingly.

Joel Donovan QC and Adam Ohringer (Instructed by Bar Pro Bono Unit) for Appellant.

Benjamin Browne QC, Roger Harris and Isabel Barter (Instructed by Gordons LLP) for Respondent.

Dates of hearing: 12th and 13th October, 2015.

2016 S C M R 1098

[Supreme Court of UK]

Present Lord Neuberger, President, Lord Mance, Lord Reed, Lord Carnwath and Lord Hodge

COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS---Appellant

Versus

UBS AG and another---Respondents

Decided on 9th March, 2016.

(On appeal from [2014] EWCA Civ 452)

Per Lord Reed, JSC: Lord Neuberger (President), Lord Mance, Lord Carnwath & Lord Hodge, JJSC agreeing.

(a) Income tax---

----Purposive construction of provisions of a taxing statute---Income tax, avoidance of---Share scheme designed by banks to avoid income tax on the payment of bonuses to employees---Statutory exemption from income tax was conferred on the award to employees of "restricted securities" i.e. shares which were subject to provision for their forfeiture if some contingency occurred---Banks, in the present case, rather than paying bonuses to employees directly, instead gave them redeemable shares in offshore companies set up for the purposes of the availing the statutory exemption----Conditions were attached to the shares making them subject to forfeiture if certain contingency occurred, but the contingencies (conditions)were unlikely events having no business or commercial purpose---After the exemptions had accrued (by contingency not occurring) employees were free to redeem shares for cash---Question was as to whether statutory exemption from income tax would apply to the shares issued to the employees---Revenue authority assessed tax on such shares as if the employees had been paid the bonuses in cash---Validity---Transactions, in the present case, had 'no real world purpose of any kind', and a purposive interpretation of the taxing statute would suggest that they had been inserted for the sole purpose of tax avoidance---Statutory exemption, in the present case, was only intended to encourage workers to own stakes in their companies and counter opportunities for tax avoidance---Statutory exemption for "restricted securities" in the present case should be construed as limited to provision for a commercial or business purpose---On this basis, Parliament could not have intended to encourage the award of shares to employees, where the same had no purpose other than obtaining an exemption from income tax---Bonus schemes formed by the banks, in the present case, had no commercial or business purpose, thus, they did not fall within the statutory exemption---Supreme Court (UK) held that bonuses awarded by banks, to employees in the form of redeemable shares in offshore companies, in order to take advantage of statutory exemption from income tax, should be treated, for income tax purposes, as if they had been paid in cash , and thus income tax was payable on the bonuses, based on the value of the shares awarded to the employees.

Two banks, in the present case, entered into schemes designed to avoid the payment of income tax on bankers' bonuses, by taking advantage of the exemptions from income tax provided under Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003("ITEPA 2003") as amended by Schedule 22 to the Finance Act 2003. Specifically under section 425(2) of ITEPA 2003, an exemption from income tax was conferred on the award to employees of "restricted securities", defined by section 423 as shares which were subject to provision for their forfeiture if some contingency occurred.

Banks invoked a scheme whereby they set up (offshore) companies merely for the purposes of the scheme, which undertook no activities beyond its participation in the scheme, and they were to be liquidated upon the termination of the scheme. Memorandum and articles of said companies contained conditions designed to comply with the statutory exemption, and the shares of the company were to be allocated to specified employees in lieu of a cash bonus. In the case of the first bank shares in the offshore company were given to the employees attached with the condition for an immediate and automatic sale of the shares if, on any date during a specified three week period, the closing value of the FTSE 100 Index exceeded a defined "trigger level", the probability of which was unlikely but in any event was hedged against so that in the event of a forced sale the employees would not be materially worse off. In the case of the second bank shares in the offshore company were given to the employees attached with a condition that an employee would forfeit his shares if he voluntarily resigned or was dismissed for misconduct during the first eight weeks after the company was set up. Neither contingency was likely to occur, not least because its occurrence lay largely within the control of the employee, for whom it would have significant financial consequences. In case of both banks, once the exemptions from income tax conferred by sections 425(2) and 429 of ITEPA 2003 had accrued, the shares were redeemable by the employees for cash. Revenue authority took the view that the banks were to be treated as having paid the relevant employees cash sums equal to their share allocation and therefore the statutory exemption would not apply and income tax was to be paid on the value of the shares.

Context and background of exemptions contained in Part 7 of the Income Tax (Earnings and Pensions) Act 2003 ("ITEPA 2003") indicated that its main purpose was to promote employee share ownership by encouraging share incentive schemes and to counteract consequent opportunities for tax avoidance. Parliament could not have intended to encourage by exemption from tax the award of shares to employees where the award of shares had no purpose whatsoever other than the obtaining of the exemption itself, a matter reflected in the fact that the shares were in a (offshore) company which had been brought into existence merely for the purposes of the scheme, which undertook no activities beyond its participation in the scheme and was liquidated upon the termination of the scheme. The encouragement of such schemes, unlike the encouragement of employee share ownership or share incentive schemes, would have no rational purpose. The provision in section 423 of ITEPA 2003 conferring the exemption was to be construed as being limited to conditions having a business or commercial purpose and did not apply to commercially irrelevant conditions the only purpose of which was the obtaining of the exemption from income tax.

Fact that Parliament has expressly dealt with tax avoidance in Chapters 3A to 3D of ITEPA 2003 did not support the inference that they were exhaustive and that Parliament could not be taken to have had any wider, unexpressed, intention to counter tax avoidance under the said statute.

In the case of the first bank, the restrictive condition - whether the FTSE 100 rose by a specified amount during a three week period - was completely arbitrary. It had no business or commercial rationale beyond tax avoidance. Such a condition was simply not relevant to the application of section 423 of ITEPA 2003, which section was concerned with "provision" having a genuine business or commercial purpose. Applying section 423 of ITEPA 2003 to the case of the first bank, viewed from a commercially realistic perspective, the condition to which the shares were subject should be disregarded, with the consequence that the shares were not "restricted securities" within the meaning of section 423 of ITEPA 2003. Such conclusion was fortified by the fact that economic effect of the restrictive condition was in any event nullified by the hedging arrangements, except to an insignificant and pre-determined extent (namely 0.8% at most). Shares in question, thus, did not fall within the statutory exemption from income tax.

Restrictive condition in the case of the second bank - 'employee would forfeit his shares if he voluntarily resigned or was dismissed for misconduct during the first eight weeks after the company was set up'- was equally artificial. Forfeiture provision operated for only a very short period, during which the possibility that it might be triggered lay largely within the control of the employee who would be adversely affected. It had no business or commercial purpose, and existed solely to bring the securities within the scope of the statutory exemption. Second bank deliberately included a contingency which created a minor risk, but one which the parties were willing to accept in the interests of the scheme. The scheme should therefore be considered as it was intended to operate, without regard to the possibility that it might not work as planned. Shares in question, thus, did not fall within the statutory exemption from income tax.

Income tax was payable on the bonuses, based on the value of the shares awarded to the employees. Value of the shares had to be assessed as at the date of their acquisition, and the restrictive conditions attached to the shares must be taken into account, as ordinary taxation principles required the tax to be based on the shares' true value.

(b) Interpretation of statutes---

----Purposive approach---Modern approach to statutory construction was to have regard to the purpose of a particular provision and interpret its language, so far as possible, in the way which best gave effect to that purpose.

Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51 ref.

(c) Interpretation of statutes---

----Fiscal or taxing statute---Purposive approach---Purposive approach to statutory construction could be extended to tax cases---Analysis of the facts depended on such purposive construction of the statute.

W T Ramsay Ltd v Inland Revenue Comrs [1982] AC 300 ref.

(d) Income Tax---

----Tax avoidance schemes---Meaning and scope---Tax avoidance schemes commonly included elements which had been inserted without any business or commercial purpose but were intended to have the effect of removing the transaction from the scope of the charge---Where an enactment was of such character, and a transaction, or an element of a composite transaction, had no purpose other than tax avoidance, it could usually be said that to allow tax treatment to be governed by transactions which had no real world purpose of any kind was inconsistent with that fundamental characteristic---Where schemes involved intermediate transactions inserted for the sole purpose of tax avoidance, it was quite likely that a purposive interpretation would result in such steps being disregarded for fiscal purposes---However in contrast to that the count in numerous cases have decided that elements inserted into a transaction without any business or commercial purpose did not prevent the composite transaction from falling within a charge to tax, or bring it within an exemption from tax, as the case might be---Ultimate question was whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.

Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51; Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 46; (2003) 6 ITLR 454, para 35; Inland Revenue Comrs v Burmah Oil Co Ltd 1982 SC (HL) 114; Furniss v Dawson [1984] AC 474; Carreras Group Ltd v Stamp Comr [2004] UKPC 16; [2004] STC 1377; Inland Revenue Comrs v Scottish Provident Institution and Tower M Cashback LLP 1 v Revenue and Customs Comrs [2011] UKSC 19 and [2011] 2 AC 457 ref.

Paul Lasok QC, Richard Vallat and Anneliese Blackwood (Instructed by The General Counsel and Solicitor for HM Revenue and Customs) for Appellant.

Kevin Prosser QC (Instructed by Pinsent Masons LLP) for Respondent (UBS AG).

David Goy QC and Nicola Shaw QC (Instructed by Slaughter and May) for Respondent (DB Group Services (UK) Ltd).

Date of hearing: 3rd December, 2015.

2016 S C M R 1340

[Supreme Court of UK]

Present Lord Neuberger, President, Lady Hale, Deputy President, Lord Dyson, Lord Reed and Lord Toulson

MINISTRY OF JUSTICE---Appellant

Versus

COX---Respondent

Decided on 2nd March, 2016.

(On appeal from [2014] EWCA Civ 132)

(a) Tort---

----Vicarious liability---Relationship other than one of employment which could give rise to vicarious liability---Pre-requisites---Claimant, who worked for the prison service (an executive agency of the Ministry of Justice) provided catering services to a prison---Claimant suffered an injury due to negligence of a prisoner---Whether prison service vicariously liable for prisoner's negligence---Case of Various Claimants v Catholic Child Welfare Society 2013 SCMR 787, laid down five factors to consider whether a relationship other than one of employment could give rise to vicarious liability; first, the defendant was more likely to have the means to compensate the victim than the tortfeasor; second, the tort would have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant; third, the tortfeasor's activity was likely to be part of the business activity of the defendant; fourth, the defendant, by employing the tortfeasor to carry on the activity, would have created the risk of the tort committed by the tortfeasor, and fifth, the employee would, to a greater or lesser degree, have been under the control of the employer---First and fifth factors were not as significant as the other three inter-related factors---Relationship other than one of employment was in principle capable of giving rise to vicarious liability where harm was wrongfully done by an individual who carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual in question---Defendant need not be carrying on activities of a commercial nature and the benefit which it derived from the tortfeasor's activities need not take the form of a profit---Furthermore payment of a wage was not essential for imposing vicarious liability---In the present case, the prisoners were integrated into the operation of the prison so that that the activities assigned to them formed an integral part of the activities which the prison carried on in the furtherance of its aims i.e. in providing meals to its prisoners---Prisoners were placed in a position where there was a risk of them committing a variety of negligent acts and the work was done under the direction of prison staff---Claimant had been injured as a result of the negligence of a prisoner working in the kitchen carrying on the activities assigned to him---Five requirements for vicarious liability set out in Various Claimants v Catholic Child Welfare Society 2013 SCMR 787, were met in the present case and since the imposition of such liability was fair, reasonable and just, the prison service was vicariously liable for the claimant's injuries.

Claimant worked as a catering manager at a prison service (an executive agency of the Ministry of Justice). Several prisoners were engaged in paid work within the kitchen under the claimant's supervision. One of the prisoners was carrying a heavy sack when he lost his balance and dropped a sack onto the claimant's back, causing injury. It was accepted by both parties that the prisoner had ignored instructions and acted negligently. Claimant brought proceedings against the Ministry of Justice, claiming damages for personal injury on the basis, inter alia, that it was vicariously liable for the negligence of the prisoner.

Scope of vicarious liability depended upon the answers to two questions. First, what sort of relationship had to exist between an individual and a defendant before the defendant could be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner did the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant? Answers to these questions were inter-connected, however the present case was concerned with the first question.

General approach to be adopted in deciding whether a relationship other than one of employment could give rise to vicarious liability, subject to there being a sufficient connection between that relationship and the tort in question, was explained in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 = 2013 SCMR 787, which set out five factors to be considered in deciding whether it was fair, just and reasonable to impose vicarious liability:

(i) the defendant was more likely to have the means to compensate the victim than the tortfeasor and could be expected to have insured against that liability;

(ii) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant;

(iii) the tortfeasor's activity was likely to be part of the business activity of the defendant;

(iv) the defendant , by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor;

(v) the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant.

These factors were not all of equal significance. First factor - that the defendant was more likely than the tortfeasor to have the means to compensate the victim, and could be expected to have insured against vicarious liability - was unlikely to be of independent significance in most cases. The fifth factor - that the tortfeasor would, to a greater or lesser degree, have been under the control of the defendant - no longer had the significance that it was sometimes considered to have in the past. It was not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by. The remaining three factors (other than the first and the fifth) were inter-related.

Relationship other than one of employment was in principle capable of giving rise to vicarious liability where harm was wrongfully done by an individual who carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual in question.

General approach for establishing vicarious liability described in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 = 2013 SCMR 787 was not confined to some special category of cases; it was intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment. By focusing upon the business activities carried on by the defendant and their attendant risks, it directed attention to the issues which were likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflected prevailing ideas about the responsibility of businesses for the risks which were created by their activities. It resulted in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor's activities were entirely attributable to the conduct of a recognisably independent business of his own or of a third party. An important consequence of such an extension was to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which had nothing to do with the nature of the enterprises' activities or the attendant risks.

Where the criteria set out in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 = 2013 SCMR 787 were satisfied, it should not generally be necessary to re-assess the fairness, justice and reasonableness of the result in the particular case. Said criteria were designed to ensure that it was imposed where it was fair, just and reasonable to do so.

Defendants could not avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort. For purposes of vicarious liability the defendant need not be carrying on activities of a commercial nature. The benefit which it derived from the tortfeasor's activities need not take the form of a profit. It was sufficient that there is a defendant carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort.

Arguments that requiring prisoners to work served the purpose of rehabilitation and that the prisoners had no interest in furthering the objectives of the prison service could not be accepted. Rehabilitation was not the sole objective. Penal policy also aimed to ensure that convicted prisoners contributed to the cost of their upkeep. When prisoners worked in the prison kitchen they were integrated into the operation of the prison, and their activities were of direct and immediate benefit to the prison service itself.

Fact that a prisoner was required to serve part of his sentence in prison, and to undertake useful work there for nominal wages, bound him into a closer relationship with the prison service than would be the case for an employee. It strengthened, rather than weaken, the case for imposing vicarious liability. Fact that the incentive payments made to prisoners were below the level of a commercial wage reflected the context in which prisoners worked, but did not entail that vicarious liability should not be imposed. Payment of a wage was not essential for imposing vicarious liability.

In the present case, the requirements laid down in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 = 2013 SCMR 787 were met. The prison service carried on activities in furtherance of its aims. The fact that those aims were not commercially motivated, but served the public interest, was no bar to the imposition of vicarious liability. Prisoners working in the prison kitchens were integrated into the operation of the prison, so that the activities assigned to them by the prison service formed an integral part of the activities which it carried on in the furtherance of its aims: in particular, the activity of providing meals for prisoners. Prisoners were placed by the prison service in a position where there was a risk that they may commit a variety of negligent acts within the field of activities assigned to them. Furthermore, they worked under the direction of prison staff. Claimant was injured as a result of negligence by a prisoner in carrying on the activities assigned to him. The prison service was therefore vicariously liable to her.

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510, CA; E v English Province of Our Lady of Charity [2013] QB 722, CA and Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, SC(E) ref.

(b) Tort---

----Vicarious liability---Relationship other than one of employment which could give rise to vicarious liability---Pre-requisites---Relationship other than one of employment was in principle capable of giving rise to vicarious liability where harm was wrongfully done by an individual who carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual in question.

James Eadie QC, Kate Grange and Stephen Kosmin (Instructed by the Government Legal Department) for Appellant.

Robert Weir QC and Robert O'Leary (Instructed by Thompsons Solicitors) for Respondent.

Date of hearing: 12th October, 2015.

2016 S C M R 1637

[Supreme Court of UK]

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson and Lord Hodge

MIRZA---Appellant

Versus

PATEL---Respondent

Decided on 20th July, 2016.

(On appeal from [2014] EWCA Civ 1047)

Per Lord Toulson, JSC; Lady Hale (Deputy President) , Lord Kerr, Lord Wilson and Lord Hodge, JJSC, agreeing; Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption, JJSC concurring with conclusion but with their own reasons.

(a) Illegality---

----Doctrine of---Illegality as a defence to a civil claim---Whether a defendant would be able to rely on the defence of illegality---"Reliance test" and "Range of factors" approach to the issue of illegality---Scope and relevance---[Per Lord Toulson, JSC, 'Reliance test' expressed in Tinsley v Milligan [1994] 1 AC 340, which was the authority for the illegality defence, should no longer be followed as it resulted in inconsistent and unjust outcomes---New test for the defence of illegality was the "range of factors" approach, whereunder the court had to consider, first the underlying purpose of the prohibition which had been transgressed and whether that purpose would be enhanced by denial of the claim; second, any other relevant public policy on which the denial of the claim may have an impact, and, third whether denial of the claim would be a proportionate response to the illegality]---[Per Lord Kerr; Rule-based approach to the question of illegality, exemplified in Tinsley v Milligan [1994] 1 AC 340, failed to deliver predictability---Court should apply a more flexible approach, taking into account the policy considerations that were said to favour recognising the defence of illegality]---[Per Lord Neuberger: When faced with a claim based on a contract which involved illegal activity the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular the policy behind the illegality; any other public policy issues, and the need for proportionality]---[Per Lord Mance (Minority view): Whatever shortcomings the "reliance test" may have, it did not justify tearing up the existing law and starting again---Court should adopt a limited approach to the effect of illegality, focused on the need to avoid inconsistency in the law, without depriving claimants of the opportunity to obtain damages for wrongs or to put themselves in the position in which they should have been---'Range of factors' approach to the issue of illegality would be too vague and potentially too wide, requiring courts to make value judgments in an unspecific and non-legal sense]---[Per Lord Clarke (Minority view): "Range of factors" approach to the issue of illegality was far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights---Power of the court to deny recovery on the ground of illegality should be limited to well defined circumstances, and there was no need to replace such approach with an open and unsettled range of factors]---[Per Lord Sumption (Minority view): 'Reliance test' accorded with settled principle; it ensured that the illegality principle applied no more widely than was necessary to give effect to its purpose of preventing legal rights from being derived from illegal acts---"Range of factors" approach would widen the application of the defence of illegality as well as render its application more uncertain---Furthermore it would largely devalue the principle of consistency, by relegating it to the status of one of a number of evaluative factors, entitled to no more weight than the judge choose to give it in the particular case]---Supreme Court concluded that 'reliance test' expressed in Tinsley v. Milligan [1994] 1 AC 340 should no longer be followed as the authority for the illegality defence, and instead the 'range of factors' approach/test should be applied.

Per Lord Toulson, JSC (Deputy President) [Majority view]

No court would lend its aid to a man who founded his cause of action upon an immoral or an illegal act. There were two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim; first, a person should not be allowed to profit from his own wrongdoing, and second, the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it took with the right hand.

Holman v Johnson (1775) 1 Cowp 341, 343 ref.

'Reliance test' expressed in Tinsley v Milligan [1994] 1 AC 340, which till now stood as authority for the illegality defence, barred the claimant if he/she relied on the illegality of his act in order to bring the claim. 'Reliance test' was arbitrary in that the question of whether the illegality prevented a claimant from obtaining relief depended not on the merits of the parties, the degree and centrality of the illegality, the policies underlying the illegality defence, but on a procedural issue of whether a party needed to rely on illegality in its pleading to advance its case. This risked resulting in inconsistent and unjust outcomes and should no longer be followed.

Tinsley v Milligan [1994] 1 AC 340 overruled

The essential rationale of the illegality doctrine was that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. The integrity and harmony of the law required flexibility in assessing whether the defence should apply. The risk of applying a formal "rule based" approach was that it may produce disproportionate and unjust results. On such basis, a "range of factors" based approach should be applied for the defence of illegality. The new test for the defence of illegality was a three pronged one characterised as "range of factors" approach. Under this approach it was necessary to consider, first the underlying purpose of the prohibition which had been transgressed and whether that purpose would be enhanced by denial of the claim; second, any other relevant public policy on which the denial of the claim may have an impact, and, third whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment was a matter for the criminal courts. When considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant e.g. seriousness of the conduct, its centrality to the contract, whether it was intentional, and whether there was marked disparity in the parties' respective culpability. Under the new approach, a claimant would not ordinarily be debarred from enforcing a claim for unjust enrichment simply because the money he sought to recover was paid for an unlawful purpose - though there may be rare cases where enforcing such a claim might be regarded as undermining the integrity of the justice system.

Hall v Hebert [1993] 3 RCS 159 ref.

Per Lord Kerr, JSC [Majority view]

Court had to make its choice between, on the one hand, cleaving to the rule-based approach exemplified by Tinsley v Milligan [1994] 1 AC 340 and, on the other, a more flexible approach, taking into account the policy considerations that were said to favour recognising the defence of illegality, those which militated against such recognition and the proportionality of allowing the defence to prevail. A rule-based approach to the question of the effect of illegality on the availability of a remedy had failed to deliver on its principal virtues viz ease of application and predictability of outcome. Even if the claim to predictability of outcome for the reliance test could be made good, it was questionable whether particular weight should be given to such consideration in circumstances where a claimant and defendant had been parties to an agreement which was plainly illegal.

Per Lord Neuberger, JSC [Majority view]

When faced with a claim based on a contract which involved illegal activity (whether or not the illegal activity had been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular the policy behind the illegality; any other public policy issues, and the need for proportionality.

Per Lord Mance, JSC; dissenting with Lord Toulson, JSC (Deputy President) on the issue of 'range of factors' approach [Minority view]

What was called for was a limited approach to the effect of illegality, focused on the need to avoid inconsistency in the law, without depriving claimants of the opportunity to obtain damages for wrongs or to put themselves in the position in which they should have been. This would offer the opportunity of resolving problems identified in the present law, without replacing it wholesale with an open and unsettled range of factors. Whatever shortcomings the old test may have suffered from, they did not justify tearing up the existing law and starting again.

"Range of factors" based approach to the issue if illegality would introduce not only a new era but entirely novel dimensions into any issue of illegality. Courts would be required to make a value judgment, by reference to a widely spread mélange of ingredients, about the overall "merits" or strengths, in a highly unspecific non-legal sense, of the respective claims of the public interest and of each of the parties.

Per Lord Clarke, JSC; dissenting with Lord Toulson, JSC (Deputy President) on the issue of 'range of factors' approach. [Minority view]

Power of the court to deny recovery on the ground of illegality should be limited to well defined circumstances. In the absence of such circumstances, claimants should not be deprived of the opportunity to obtain damages for wrongs or to put themselves in the position in which they should have been. There was no need to replace such approach with an open and unsettled range of factors by adopting the "range of factors" approach.

"Range of factors" approach to the issue of illegality was far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. It converted a legal principle into an exercise of judicial discretion. The illegality defence deprived claimants of their legal rights. The correct response for the court was not to leave the problem to a case by case evaluation by the lower courts by reference to a potentially unlimited range of factors, but to address the problem by supplying a framework of principle which accommodated legitimate concerns about the present law.

Per Lord Sumption, JSC; dissenting with Lord Toulson JSC, (Deputy President) on the issue of 'range of factors' approach. [Minority view]

'Reliance test' accorded with settled principle. First, it gave effect to the basic principle that a person may not derive a legal right from his own illegal act. Second, it established a direct causal link between the illegality and the claim, distinguishing between those illegal acts which were collateral or matters of background only, and those from which the legal right asserted could be said to result. Third, it ensured that the illegality principle applied no more widely than was necessary to give effect to its purpose of preventing legal rights from being derived from illegal acts. The reliance test was the narrowest test of connection available. Every alternative test/approach which had been proposed would widen the application of the defence as well as render its application more uncertain.

Whatever rationale one adopted for the illegality principle, it was manifestly designed to vindicate the public interest as against the interests and legal rights of the parties. That was why the judge was required to take the point of his own motion even if the parties had not raised it. The operation of the principle could not therefore depend on an evaluation of the equities as between the parties or the proportionality of its impact upon the claimant. "Range of factors" approach largely devalued the principle of consistency, by relegating it to the status of one of a number of evaluative factors, entitled to no more weight than the judge chooses to give it in the particular case. Said approach discarded any requirement for an analytical connection between the illegality and the claim, by making the nature of the connection simply one factor in a broader evaluation of individual cases and offering no guidance as to what sort of connection might be relevant.

Adoption of a "range of factors" approach on a case by case basis would create uncertainty. An evaluative test dependent on the perceived relevance and relative weight to be accorded in each individual case to a large number of incommensurate factors left a great deal to a judge's visceral reaction to particular facts. Such an approach was far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. It converted a legal principle into an exercise of judicial discretion, in the process exhibiting all the vices of complexity, uncertainty, arbitrariness and lack of transparency. Questions such as how illegal was illegality would admit of no predictable answer, even if the responses of different judges were entirely uniform. With the adoption of "range of factors" approach a new body of jurisprudence would be gradually built up to identify which of a large range of factors should be regarded as relevant and what considerations should determine the weight that they should receive. No one factor would ever be decisive as a matter of law.

Per Lord Toulson, JSC

(b) Unjust enrichment, principle of---

----Scope---Defendant's enrichment was prima facie unjust if the claimant had enriched the defendant on the basis of a consideration which failed---Consideration may have been a promised counter-performance (whether under a valid contract or not), an event or a state of affairs, which failed to materialize---Failure of the consideration for a payment meant that the state of affairs contemplated as the basis or reason for the payment had failed to materialise or, if it did exist, had failed to sustain itself.

Professor Andrew Burrows' A Restatement of the English Law of Unjust Enrichment, 2012, p 86, para 15 and Sharma v Simposh Ltd [2013] Ch 23, at para 24 ref.

(c) Illegality, doctrine of---

----Illegality as a defence to a civil claim---Unjust enrichment---Illegal contract---Whether a claimant who had transferred money pursuant to an illegal contract could recover the sums paid, when the contract was not executed---Principles---Circumstances in which illegality should be a defence to a civil claim---Plaintiff gave money to the defendant to buy shares on the basis of insider knowledge---Insider dealing plan did not materialize---Plaintiff sued the defendant to recover his money---[Per Lord Toulson: Plaintiff was entitled to restitution of the money which he paid to the defendant---Illegality did not necessarily prevent the operation of the unjust enrichment rules---Claimant who satisfied the ordinary requirements of a claim for unjust enrichment should not be debarred from enforcing his claim by reason only of the fact that the money which he sought to recover was paid for an unlawful purpose---In rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there were no such circumstances in the present case]---[Per Lord Neuberger: In a case, such as the present one, the general rule should be that the claimant was entitled to the return of the money which he had paid---Such general rule would apply to any contract where the illegality would result in the court (if it could otherwise do so) not being able to order specific performance of the contract or damages for its breach---Even where the contemplated illegal activity had been performed in part or in whole, it would be right to apply the general rule in appropriate cases]---[Per Lord Mance: So long as restitution was possible, there was no inconsistency in the law in permitting a party to an illegal arrangement to recover any sum paid under it---In the present case plaintiff was entitled to require the defendant to return the stake which plaintiff put up for an illegal purpose to make profits for their joint benefit---Plaintiff's claim did not seek to enforce or profit by the illegality, it sought merely to put the position back to where it should have been had no such illegal transaction ever been undertaken]---[Per Lord Clarke: General rule that the claimant was entitled to the return of the money which he had paid was consistent with authority and with policy and rendered the outcome in cases of contracts involving illegality and the maxim ex turpi causa non oritur actio relatively clear and certain]---[Per Lord Sumption: Restitution being possible in the present case, the plaintiff was not barred from recovering the money which he paid to the defendant---Order for restitution would simply return the parties to the position in which they would and should have been, had no such illegal arrangement been made]---Supreme Court held that the plaintiff was entitled to recover the money paid to the defendant along with interest---Appeal was dismissed accordingly.

In the present case, plaintiff transferred £620,000 to the defendant for the purpose of betting on the price of a bank's shares. Plaintiff intended to take advantage of advance insider information which the defendant expected to obtain from his contacts at the bank as to an anticipated government announcement, which would affect the price of the shares. The expected government announcement was never made and so the intended insider dealing plan did not materialize. Defendant failed to repay the money to the plaintiff despite promises to do so. Plaintiff sued the defendant to recover the sums he had paid. The claim was based on various basis including contract and unjust enrichment. The agreement between the plaintiff and defendant amounted to a conspiracy to commit an offence of insider dealing. Defendant contended that the plaintiff's claim should fail because of the illegality of the arrangement. The issue was when involvement in illegality barred a claim.

Per Lord Toulson, JSC

The essential rationale of the illegality doctrine, was that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it was necessary to consider, first the underlying purpose of the prohibition which had been transgressed and whether that purpose would be enhanced by denial of the claim; second, any other relevant public policy on which the denial of the claim may have an impact and, third whether denial of the claim would be a proportionate response to the illegality.

In the present case the court had to ask itself whether the policy underlying the rule which made the contract between the plaintiff and the defendant illegal would be stultified if plaintiff's claim in unjust enrichment were allowed. After examining the policy underlying the statutory provisions about insider dealing, there was no logical basis why considerations of public policy should require the plaintiff to forfeit the moneys which he paid into defendant's account, and which were never used for the purpose for which they were paid. Such a result would not be a just and proportionate response to the illegality. Plaintiff was seeking to unwind the arrangement, not to profit from it.

Person who satisfied the ordinary requirements of a claim in unjust enrichment would not prima facie be debarred from recovering money paid or property transferred by reason of the fact that the consideration which has failed was an unlawful consideration. In rare cases for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there were no such circumstances in the present case. No particular reason had been advanced in the present case to justify defendant's retention of the monies beyond the fact that it was paid to him for the unlawful purpose of placing an insider bet.

Per Lord Neuberger, JSC

In a case, such as the present one, the "general rule" should be that the claimant was entitled to the return of the money which he had paid. In the first place, such a rule was consistent with centuries old settled law; in addition it had support from modern cases. Secondly, such 'general rule' appeared to accord with policy, which was particularly important when illegality arose in the context of a civil claim. Thirdly, such 'general rule' rendered the outcome in cases in one area of a very difficult topic, that of contracts involving illegality, and the maxim ex turpi causa non oritur actio (i.e. that no claim can be based on an illegal or immoral arrangement), relatively clear and certain. There were two possible exceptions, when it may well be inappropriate to invoke the 'general rule'; first, where one of the parties, especially the defendant, was in a class which was intended to be protected by the criminal legislation involved; secondly, there could well be no recovery (or only partial recovery) by a plaintiff where the defendant was unaware of the facts which gave rise to the illegality - especially if he had received the money and had altered his position so that it might be oppressive to expect him to repay it. There could be other exceptions, but that did not undermine the usefulness of having the 'general rule' as the prima facie or presumptive approach.

Smith v Bromley (1760) 2 Doug KB 696n; Walker v Chapman (1773) Lofft 342; Neville v Wilkinson (1782) 1 Bro CC 543, 547; Taylor v Bowers (1876) 1 QBD 291 and Tribe v Tribe [1996] Ch 107 ref.

'General rule' that the claimant was entitled to the return of the money which he had paid would apply to any contract where the illegality would result in the court (if it could otherwise do so) not being able to order specific performance of the contract or damages for its breach. It would thus normally apply to any contract whose performance would inevitably involve the commission of a crime (i) because the whole purpose of the contract was the commission of a crime or (ii) because it was a contract whose essential ingredient was the commission of a crime (the present case was an example), or (iii) because the contract could not be performed without the commission of a crime.

Even where the contemplated illegal activity had been performed in part or in whole, it would be right to apply the 'general rule' in appropriate cases. There was no good reason for not extending the 'general rule' to partly or even wholly performed contracts where restitutio in integrum could be achieved in practical terms and would be consistent with policy and proportionality. Thus, in the case of an illegal contract where money was paid by the claimant to the defendant, and the contract was then partly or wholly performed by the defendant paying a lesser sum to the claimant, there was no reason why, at least in the absence of good reasons to the contrary, the court should not order that the claimant should recover the money that he paid the defendant, albeit reduced by the lesser sum which the claimant subsequently received from the defendant. Similar conclusion would apply where the contract was wholly performed. However, it was clear that there could be circumstances where application of the 'general rule' would not be appropriate in circumstances where the illegal activity has been wholly or partly put into effect.

Per Lord Mance, JSC

There was no inconsistency in the law in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution was possible. Further there was no necessary objection to permitting rescission after part performance (of illegal contract), by making, where possible, appropriate adjustments for benefits received.

Reliance on illegality remained significant as a bar to relief, but only in so far as it was reliance in order to profit from or otherwise enforce an illegal contract. Reliance in order to restore the status quo was unobjectionable.

In the present case there was no problem in recognising that plaintiff was entitled to require the defendant to return the stake which plaintiff put up for the illegal purpose of use by the defendant to make profits for their joint benefit by misuse of inside information. The plaintiff's claim did not seek to enforce or profit by the illegality. It sought merely to put the position back to where it should have been, and would have been had no such illegal transaction ever been undertaken.

Per Lord Clarke, JSC

General rule was that the claimant had the right to return of money paid by him to the defendant pursuant to a contract to carry out an illegal activity where the illegal activity was not in the event proceeded with owing to matters beyond the control of either party. Such general rule arose automatically and by operation of law; a right to restitution that in principle followed from the legal ineffectiveness of the contract. Said general rule was consistent with authority and with policy and rendered the outcome in cases of contracts involving illegality and the maxim ex turpi causa non oritur actio relatively clear and certain. There was obvious attraction in the notion that, if all transfers made pursuant to an unexecuted illegal contract were re-transferred, then the parties were back in the position they were, i.e. as if there had been no illegal contract, which would seem to comply with public policy.

Per Lord Sumption, JSC

Reason why the law should allow restitution in a case such as the present one was that it did not offend the principle applicable to illegal contracts. That principle was that the courts would not give effect to an illegal transaction or to a right derived from it. But restitution did not do that. It merely recognised the ineffectiveness of the transaction and gave effect to the ordinary legal consequences of that state of affairs. The effect was to put the parties in the position in which they would have been if they had never entered into the illegal transaction, which in the eyes of the law was the position which they should always have been in.

Restitution being possible in the present case, the plaintiff was not barred from recovering £620,000 which he paid to the defendant. Although plaintiff would have to rely on the illegal character of the transaction in order to demonstrate that there was no legal basis for the payment, an order for restitution would not give effect to the illegal act or to any right derived from it. It would simply return the parties to the status quo ante where they should always have been.

Matthew Collings QC, (Instructed by Mischon de Reya) for Appellant.

Philip Shepherd QC and Professor Graham Virgo (Instructed by K A Arnold & Co) for Respondent.

Dates of hearing: 16th and 17th February, 2016.

2016 S C M R 1841

[Supreme Court of UK]

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed and Lord Toulson

WILLERS---Appellant

Versus

JOYCE and another---Respondents

Decided on 20th July, 2016.

(On appeal from [2015] EWHC 1315)

Per Lord Toulson, JSC; Lady Hale (Deputy President), Lord Kerr and Lord Wilson, JJSC, agreeing; Lord Clarke, JSC, concurring; Lord Neuberger (President), Lord Mance, Lord Sumption and Lord Reed, JJSC, dissenting.

(a) Malicious prosecution---

----Cause of action---Civil proceedings between private individuals---Whether the tort of malicious prosecution should extend to a civil claim---Per Lord Toulson [Majority view]: Malicious prosecution already existed in relation to criminal proceedings, however claim in malicious prosecution could also be brought in relation to civil proceedings/claim between private individuals---Accepting that there was a tort of malicious prosecution of a crime but not a civil action, did not make any sense---Seemed instinctively unjust for a person to suffer injury as a result of the malicious prosecution of (civil) legal proceedings for which there was no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it---Extending tort of malicious prosecution to civil proceedings would not necessarily deter valid civil claims or encourage satellite litigation, as there was no way of testing such hypothesis and it seemed intrinsically unlikely---Action for malicious prosecution did not amount to a collateral attack on the outcome of the first proceedings---Per Lord Clarke [Majority view]: Tort of malicious prosecution should apply to the malicious and groundless prosecution of a civil claim causing damage---If a claimant was entitled to recover damages against a person who maliciously prosecuted him for an alleged crime, a claimant should also be entitled to recover damages against a person who maliciously brought civil proceedings against him---Ingredients for the tort of malicious prosecution of a crime and the tort of malicious prosecution of a civil action were essentially the same---Per Lord Mance, dissenting [Minority view]: Wisdom of the past precedents presented no decisive authority for the proposition that scope of malicious prosecution should be extended to civil proceedings also---Such an extension would also run contrary to the general policy of the law regarding costs---Recognition of a general tort of malicious prosecution in respect of civil proceedings would be carrying the law into uncharted waters, inviting fresh litigation about prior litigation, the soundness of its basis, its motivation and its consequences---Logically, it would also enable the claimant to threat a defendant with pursuing a malicious defence; it would also expose the witnesses to such claims, whether as co-conspirators or persons giving unfounded evidence due to ulterior motives---In civil actions it was well recognized that there was absence of any duty of care owed by one litigant to another, and the general immunity which attached to what was said or done in court by litigants or witnesses---Extending the tort of malicious prosecution to civil actions, would open the door to wider claims, to wider exposure and to wider risks of misuse---Per Lord Neuberger, dissenting [Minority view]: Tort of malicious prosecution should not be available in respect of civil proceedings between one private litigant and another for reasons that it was inconsistent with the general rule that a litigant owed no duty to his opponent in the conduct of civil litigation; it was inconsistent with witness immunity from civil liability; it would render the precise ambit of the tort of malicious prosecution, both uncertain and potentially very wide, and potentially make a claim which was not malicious initially, malicious at a later stage of the proceedings; it would create the danger of satellite litigation; it might have unanticipated knock-on effects in other areas of law, with unpredictable consequences, and it may also have a chilling effect on the bringing civil proceedings---Per Lord Sumption, dissenting [Minority view]: Recognition of a general liability for maliciously prosecuting civil proceedings circumvented the principled limits that the courts had imposed on the tort of abuse---Developments in law must be warranted by current values and social conditions.

Defendant controlled a leisure company. The claimant was a director of the company but was later dismissed. Company sued the claimant for alleged breach of contractual and fiduciary duties in causing the company to incur costs in pursuing certain third party litigation. Claimant defended the action and claimed an indemnity from the defendant on the grounds that he had acted under the defendant's directions in pursuing the litigation. Subsequently the company discontinued its claim against the claimant. Claimant brought the current action for malicious prosecution, alleging that the claim brought against him by the company was part of a campaign by the defendant to do him harm. The heads of damage claimed were damage to reputation, damage to health, loss of earnings and the difference between the full amount of the costs incurred in defending the company's claim and the amount of costs he had recovered on the standard basis on discontinuance. The question was whether a claim in malicious prosecution could be brought in relation to civil proceedings by one individual against another individual.

Per Lord Toulson [Majority view]

It was unjust for a person to suffer injury as a result of the malicious prosecution of legal (civil) proceedings for which there was no reasonable ground and not to be compensated for the injury intentionally caused by the person responsible for it.

There was no good reason for limiting the breadth of tort of malicious prosecution so as to exclude civil proceedings. Countervailing factors raised against extending scope of malicious prosecution to civil proceedings were insufficient to counter the conclusion that malicious prosecution was a tort which applied to civil just as to criminal proceedings. Argument that extending scope of malicious prosecution to civil proceedings would deter those who had valid (civil) claims, was also used in the past for not allowing the tort in criminal proceedings. There was a public interest in finality and in avoiding unnecessary satellite litigation, but an action for malicious prosecution for civil proceedings did not amount to a collateral attack on the outcome of the first proceedings.

Glinski v McIver [1962] AC 726, HL(E) and Crawford Adjusters (Cayman) Ltd. v Sagicor General Insurance (Cayman) Ltd. [2014] AC 366, PC ref.

Gregory v Portsmouth City Council [2000] 1 AC 419, HL(E) not followed.

Allowing an action for malicious prosecution on basis of civil proceedings did not mean that there was a duty of care between the litigant and the opposing party. There was a great difference between imposing a duty of care and imposing a liability for maliciously instituting proceedings without reasonable or probable cause.

Per Lord Clarke, JSC [Majority view]

Tort of malicious prosecution included the prosecution of civil proceedings. Courts had fashioned the tort of malicious prosecution to do justice in various situations in which a person had suffered injury in consequence of the malicious use of legal process without any reasonable basis. Tort of malicious prosecution should apply to the malicious and groundless prosecution of a civil claim causing damage.

There was close affinity between the tort of malicious prosecution of a crime and the tort of malicious prosecution of a civil action. The ingredients were essentially the same. Not only were the ingredients the same, but it seemed, that if a claimant was entitled to recover damages against a person who maliciously prosecuted him for an alleged crime, a claimant should also be entitled to recover damages against a person who maliciously brought civil proceedings against him. The latter class of case could easily cause a claimant very considerable losses. They would often be considerably greater than in a case of malicious prosecution of criminal proceedings.

Glinski v McIver [1962] AC 726 at 765 ref.

Per Lord Mance, JSC; dissenting [Minority view]

An action to investigate the maliciousness or otherwise of a full-blown prior civil action, which had been fought and resolved inter partes, was quite a different proposition to an action for malicious pursuit of an ex parte step taken maliciously with immediate effect on the other party's person, property or business. Such distinction was a valid one. Judge should be sensible to heed the fact that the wisdom of the past precedents presented no decisive authority for the broad contrary proposition that scope of malicious prosecution should be extended to civil proceedings also.

Court awarding costs in a civil action was entitled to have regard to all relevant matters, including the absence of any prospects of success and the state of mind in which it was pursued, when deciding what costs, and whether on an indemnity or standard basis; should be recoverable. To permit litigation about these issues after the close of an unsuccessful action would be to invite or risk re-litigation of issues which were or could have been decided in the first action. In so far as the costs assessed by a costs judge were not likely to or may not enable full recovery of all costs incurred, the reason was likely to be that the costs incurred were not in the eyes of the law necessary, reasonable or proportionate in the context of the issues. To allow a claim for their recovery in a separate action for malicious pursuit of the original action would in each of these cases run contrary to the general policy of the law regarding costs.

It was unconvincing to suggest that, because there was a tort of malicious prosecution of criminal proceedings, therefore it was logical or sensible that there should be a tort of malicious prosecution of civil proceedings. Not only did that ignore the teaching of history, showing courts studiously avoiding any such parallel; it also ignored the fact that, in an era when private prosecutions had largely disappeared, the tort of malicious prosecution of criminal proceedings was virtually extinct. To create a tort of malicious prosecution of civil proceedings might in such circumstances be thought to come close to necromancy.

Recognition of a general tort in respect of civil proceedings would be carrying the law into uncharted waters, inviting fresh litigation about prior litigation, the soundness of its basis, its motivation and its consequences. The basis, motivation and consequences of individual ex parte steps, having immediate effects at the outset of litigation, were likely to be relatively easy to identify. The exact opposite was likely to be the position in the context of prior litigation which had extended quite probably over years. Further, there was (and could logically be) nothing in the proposed extension of the tort of malicious prosecution, to limit it to circumstances where the claim was at the outset unfounded or malicious. It would be open to a defendant throughout the course of civil proceedings to tax (i.e. threat) the claimant with the emergence of new evidence, or the suggested failure of a witness to come up to proof, and to suggest that from then on the claim must be regarded as unfounded and could only be being pursued for malicious reasons. Logically, it must also be open to a claimant to tax (i.e. threat) a defendant with pursuing a malicious defence.

Logically again, any such general tort of malicious prosecution would extend to any individual application or step in the course of a civil action, which could be said to be unfounded and maliciously motivated, eg to gain time or avoid execution, rather than for genuine litigational purposes. Indeed, logically, once the parties were exposed to claims for maliciously pursuing their respective cases, there was no real reason why witnesses should not likewise be exposed, whether as co-conspirators or even as persons having their own individual malicious axe to grind by giving unfounded evidence. There already existed a clear recognition of the need that civil actions should in general be litigated without any risk of one or another party, or a third party, subsequently being able to go over and claim in respect of anything said or done in such actions. That is the absence of any duty of care owed by one litigant to another, and the general immunity which attached to what was said or done in court by litigants or witnesses.

Liability for malicious pursuit of civil proceedings could arise from an unfounded claim, if the claimant's "dominant" motive was to injure, even if he believed the claim to be well-founded and intended to "injure" the defendant by pursuing it to judgment. It would be better to accept a concept of malicious prosecution which depended on actual appreciation by the original claimant that the original claim was unfounded. The concept of extending the tort of malicious prosecution to civil actions, would open the door to wider claims, to wider exposure and to wider risks of misuse.

Per Lord Neuberger (President), dissenting [Minority view]

There were several reasons for why the tort of malicious prosecution should not available in respect of civil proceedings between one private litigant and another; firstly, the existence of such a tort would be inconsistent with the well-established general rule that a litigant owed no duty to his opponent in the conduct of civil litigation; secondly, it would be inconsistent with the rule that even a perjuring witness in court proceedings was absolutely immune from civil liability; thirdly, the original justification for the tort of malicious prosecution in the criminal context did not apply in the ordinary civil context. Tort of malicious prosecution was developed as a tool for constraining the arbitrary exercise of the powers of public prosecuting authorities or private persons exercising corresponding functions against the claimant in subsequent potential malicious prosecution proceedings. In the non-criminal context this was limited to cases where the court was invited by the potential defendant to exercise ex parte or interlocutory powers which resulted in the claimant losing his liberty or property without the prior opportunity to properly defend himself. That was no basis for extending it to civil proceedings generally. Fourthly, the precise ambit of the tort, if it extended to civil proceedings of a private nature would be both uncertain and potentially very wide. The tort would extend to a malicious defence, and even to malicious applications or allegations in proceedings which would otherwise not be malicious. The tort could also apply at different stages of proceedings, so that a claim which was not malicious initially could arguably become malicious as things changed. In particular, proceedings, which were initially unexceptionable, could become malicious because they were being continued for tactical or costs reasons. Fifthly, it would create the risk of satellite litigation. Sixthly, confirmation of the existence of the tort of malicious prosecution in civil claims could well have unanticipated knock-on effects in other areas of law, with unpredictable consequences. Seventhly, the existence of the tort could have a chilling effect on the bringing, prosecuting or defending of civil proceedings. Existence of the tort would severelly risk creating what would be an undesirable new weapon in the hands of a ruthless party, namely intimidation through the unjustified, but worrying, threat of a malicious prosecution claim to deter bona fide proceedings. In other words, the creation of a remedy for one wrong was likely to lead to another wrong. Eighthly and finally it was almost inevitable that the cost and time of some proceedings would be increased as a party maneuvered in one way or another with a view to setting up a malicious prosecution claim if the other party's case failed.

Recognizing tort of malicious prosecution in respect of civil proceedings would also create problems both in identifying what constituted malice and in deciding what types of loss and damage should be recoverable in connection with claims based on the proposed tort.

Per Lord Sumption, JSC; dissenting [Minority view]

In a system of judge-made customary law, judges had always accepted limitations on their ability to recognise new bases of non-consensual liability. Two limitations were particularly relevant to the present case, neither of which was consistent with recognizing the tort of malicious prosecution for civil claims. First limitation, was that where the courts developed the law, they must do so coherently. This meant, that the development must be consistent with other, cognate principles of law, whether statutory or judge-made. The recognition of a general liability for maliciously prosecuting civil proceedings failed such test. It circumvented the careful and principled limits that the courts had imposed on the tort of abuse of civil process. It cut across the immunities which the law had always recognised for things said and done in the course of legal proceedings. It introduced malice as an element of tortious liability contrary to the long-standing principle of the law of tort that malice was irrelevant. Logically, it would entitle litigants to recover as of right costs which by statute were a matter of discretion. Second limitation, was that the proposed development of the law should be warranted by current values and current social conditions. Unless the law was to be reinvented on a case by case basis, something must generally have changed to make appropriate that which was previously rejected. Recognition of a general liability for maliciously prosecuting civil proceedings failed such test too. Courts had far more extensive powers today than they did in the past to prevent abuse of their procedures, and the closer judicial supervision of the interlocutory stages of litigation made it easier to exercise them.

Reluctance of the courts to accept rules of law justifying secondary or satellite litigation was born of long-standing judicial experience of the incidents of litigation and the ways of litigants. That experience was as relevant today as it had ever been. The volume of litigation had increased exponentially in modern times. Its tendency to generate persistence, obsession and rancour was as great as ever. The hazards of losing, already considerable in terms of costs, must inevitably be greater if one added the threat of secondary litigation for prosecuting the earlier action in the first place.

Per Lord Toulson, JSC [Majority view]

(b) Malicious prosecution---

----Cause of action---Civil proceedings between private individuals---Scope of tort of malicious prosecution extended to civil claims---Arguments against extending the scope of malicious prosecution to civil claims discussed and addressed.

Various countervailing arguments/factors against extending tort of malicious prosecution to civil claims, but held to be insufficient, were as follows:

Deterrence: Argument that there was a risk of deterring pursuit of valid civil claims, for fear of facing a vindictive action for malicious prosecution if the claim failed. Such an argument did not have greater merit in relation to civil proceedings than criminal proceedings. There were many deterrents to litigation (uncertainty, time, expense, etc), some of which may be stronger than others. A claimant who brought civil proceedings on an improper basis exposed himself to the risk of having to pay indemnity costs, but it did not deter those with honest claims from pursuing them. One could always hypothesise that an honest litigant who had not been put off from bringing a claim by the risk of the judge (wrongly) deciding that he had acted improperly and making an indemnity costs order might nevertheless be put off by the extra risk of an opposing party bringing a vindictive action for malicious prosecution, but there was no way of testing the hypothesis and it seemed to me intrinsically unlikely.

Finality: Argument that extending scope of malicious prosecution to civil claims would encourage satellite litigation. There was unquestionably a public interest in avoiding unnecessary satellite litigation, whether in criminal or civil matters, but that had not been considered a sufficient reason for disallowing a claim for malicious prosecution of criminal proceedings. Unlike certain other forms of satellite litigation, an action for malicious prosecution did not amount to a collateral attack on the outcome of the first proceedings.

Inconsistency with witness immunity from civil liability: Argument that including civil proceedings in the ambit of malicious prosecution would introduce an inconsistency with the rule that evidence given to a court was protected by immunity from civil action, even if the evidence was perjured. If such argument were a valid objection it would apply to all forms of the tort of malicious prosecution, including prosecution of criminal proceedings, as well as to the instances of malicious institution of civil process which were acknowledged on all sides to be within the scope of the tort.

Inconsistency with the absence of a duty of care by a litigant towards the opposing party: Allowing an action for malicious prosecution on basis of civil proceedings did not mean that there was a duty of care between the litigant and the opposing party. There was a great difference between imposing a duty of care and imposing a liability for maliciously instituting proceedings without reasonable or probable cause. The same distinction was established in relation to criminal cases.

Reciprocity: The suggestion that if a claim could be made for malicious prosecution of civil proceedings, there should logically be a right to sue for the malicious defence of a civil claim without reasonable or probable cause. For a court to recognise the existence of such a cause of action would be bold, to say the least, but it was not necessarily a counterpart of the finding that malicious prosecution extended to civil proceedings. There was an obvious distinction between the initiation of the legal process itself and later steps which may involve bad faith but did not go to the root of the institution of legal process.

Uncertainty as to malice: The suggestion that extending scope of malicious prosecution to civil proceedings would take the courts into new and uncertain waters about the meaning of malice. There was a volume of case law about malice for the purposes of the tort of malicious prosecution, and it was well established that it was a separate requirement to the absence of reasonable and probable cause for the action. [obiter view] It required the claimant to prove that the defendant deliberately misused the process of the court in bringing the claim, in that there was no bona fide reason to bring the claim.

None of the factors identified above were sufficient to outweigh the argument that simple justice dictated that a claim of malicious prosecution based on civil proceedings should be sustainable in law.

(c) Malicious prosecution---

----Claim for malicious prosecution---Pre-requisites---Absence of "reasonable and probable cause" and "malice"---Scope---For purposes of bringing a claim for malicious prosecution the requirements of "absence of reasonable and probable cause" and "malice" were separate requirements although they may be entwined---In order to have reasonable and probable cause, the defendant did not have to believe that the proceedings would succeed; it was enough that, on the material on which he acted, there was a proper case to lay before the court---Malice was an additional requirement; it required the claimant to prove that the defendant deliberately misused the process of the court---Most obvious case was where the claimant could prove that the defendant brought the proceedings in the knowledge that they were without foundation, however there may be other instances of abuse---For example, a person may be indifferent whether the allegation was supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he had no colour of a right---Critical feature which had to be proved was that the proceedings instituted by the defendant were not a bona fide use of the court's process---Combination of requirements that the claimant must prove not only the absence of reasonable and probable cause, but also that the defendant did not have a bona fide reason to bring the proceedings, meant that the claimant had a heavy burden to discharge. [Majority view]

Per Lord Reed, JSC

(d) Precedent---

----Court had to develop a body of law which was well-suited to the conditions of the present day, looking back to the achievements of its predecessors, and also, often more pertinently, to those of contemporaries in other jurisdictions.

(e) Precedent---

----Judgments given centuries ago, reliance upon---Scope---Before relying upon a judgment given centuries ago, the Court must have a secure understanding of the factual and legal context of such judgments in order to be able to determine the intended scope of any judicial pronouncements---Practically it was often difficult, however, to attain such an understanding of the judgments of the distant past---Difficulties arising from an unfamiliar procedural context, and an equally unfamiliar remedy-centred approach to legal thinking, were liable to be exacerbated by the variable quality of the reports themselves, and the variations between reports of the same case.

John Mc Donnell QC, Hugo Page QC and Adam Chichester-Clark (Instructed by De Cruz Solicitors) for Appellant.

Bernard Livesey QC and Paul Mitchell QC (Instructed by Laytons) for Respondents.

2016 S C M R 1940

[Supreme Court of UK]

Present: Lady Hale, Deputy President, Lord Mance, Lord Reed, Lord Carnwath and Lord Toulson

CAMPBELL---Appellant

Versus

GORDON---Respondent

Decided on 6th July, 2016.

(On appeal from [2015] CSIH 11)

Per Lord Carnwath, JSC; Lord Mance and Lord Reed, JJSC, agreeing; Lady Hale (Deputy President) and Lord Toulson, JJSC, dissenting. [Majority view]

Tort---

----Employer's liability--- Insurance for employees--- Company's (employer's) failure to have appropriate insurance for employees---Company director, civil liability of---Scope---Veil of incorporation, lifting of---Scope---Where statute expressly imposing 'criminal liability' on director for company's failure to insure employee, whether veil of incorporation could be lifted to infer 'civil liability' on the director---Employee suffered injury during course of employment---Company (employer) failed its statutory obligation to insure employee against liability for injury---Relevant statute on employer's obligation to insure provided for criminal liability of director of the company for such failure---Employee therefore, claimed that failure of director of the company, to provide adequate insurance, made him civilly liable also and thus personally liable in damages to the employee---Validity---Person could not be made indirectly liable for breach of an obligation imposed by statute on someone else, and it was only possible to pierce the corporate veil to impose liability on a director or other individual through whom the company acted, if it was expressly or impliedly justified by the statute---Relevant statute on employer's obligation to insure did provide that in case of failure by company to insure, a specific and closely defined criminal penalty could be imposed on a director, but the imposition of such 'criminal liability' was not sufficient to render the director 'civilly liable'---Language of said statute was deliberately chosen and was specifically directed at criminal liability, and thus it was difficult to infer an intention to impose a more general (civil) liability---In determining statutory liability, the court must pay due respect to the language and structure of the statute, rather than to preconceptions as to what its objectives could or should have been---Claim of employee against the director could not stand in the present case---Appeal was dismissed accordingly---[Per Lord Touslon (Minority view): Relevant statute on employer's obligation to insure placed a legal obligation on a director or other officer of a company not to cause or permit the company to be without the required insurance, and provided a criminal penalty in case of breach---Imposition of criminal responsibility for a specified act (or omission) carried with it a legal obligation not to act (or omit to act) in such a way---Objective of the relevant statute on employer's obligation to insure was employee's protection---Director was in law guilty as a principal of failing to insure---Breaches of legislation for the protection of employees were actionable at common law by the employee suffering the breach---Where the legislation was silent on whether there should be civil liability, the judges' role was to fill the gaps---Where objective of a legislation was to protect employees, a breach would ordinarily give rise to a cause of action, absent a clear statutory intention to the contrary]---[Per Lady Hale (Minority view): In enacting the relevant statute on employer's obligation to insure, Parliament did intend that failure to insure should give rise not only to criminal liability but also to civil liability towards an employee who had been injured by his employer's breach of duty and who, because of the failure to insure, would not otherwise receive the compensation for his injuries to which he was entitled].

Employee was working as an apprentice at a company (employer), which was controlled by a sole director. Employee was injured when using an electric saw in the course of his employment. Employers' liability insurance policy taken out by the company did not provide cover for the use of electrically powered woodworking machinery. The company's failure to have in place appropriate insurance was a breach of its obligations under section 1(1) of the Employers' Liability (Compulsory Insurance) Act 1969. Section 5 of said Act created a criminal offence for an employer to fail to insure an employee. Where the employer was a company, certain officers of the company, including directors, could be deemed to have committed a criminal offence if the failure by the company had been committed with their consent, connivance or facilitated by their neglect. Company in the present case went into voluntary liquidation and had no funds to meet the employee's claim. Employee therefore claimed damages for his injuries from the sole director as having been in breach of a statutory duty to effect the necessary insurance on behalf of the company. Director disputed the circumstances of the accident, alleging that it was the employee's fault, and disputed whether he was responsible for the admitted lack of insurance cover. Director contended that civil liability does not attach to a director even where there has been a breach of the Employers' Liability (Compulsory Insurance) Act, 1969. Trial Court found that a person in breach of a statutory obligation imposed for the benefit or protection of a particular class of person could be personally liable for the breach of statutory duty, that the Employers' Liability (Compulsory Insurance) Act, 1969 imposed an obligation to insure for the benefit of employees, and that the effect of section 5 of the said Act was that the obligation, and therefore civil liability for any breach thereof, fell on the director as well as the company. Appellate Court dismissed the employee's claim against the director by finding that the Employers' Liability (Compulsory Insurance) Act, 1969, did not reveal a legislative intent to impose civil liability upon directors and others who were subject to criminal penalties under the said Act.

Generally a person could not be made indirectly liable for breach of an obligation imposed by statute on someone else. It was no different where the obligation was imposed on a company. Corporate veil could only be pierced to impose liability on individuals through whom the company acted if it was expressly or impliedly provided for by statute. While statute provided for the criminal liability of directors in these situations, this was not sufficient to render the director civilly liable also.

By way of section 5 of the Employers' Liability (Compulsory Insurance) Act 1969, Parliament had imposed a specific and closely defined criminal penalty on a director bearing responsibility for a failure to insure, which was linked to the criminal liability of the company. Parliament had recognised that a director or officer may bear some responsibility for the failure to insure, but had dealt with it, not by imposing direct responsibility (on the director or officer) equivalent to that of the company, but by a specific and closely defined criminal penalty, itself linked to the criminal liability of the company. Language of section 5 of the said Act was deliberately chosen to not result in imposition of civil liability for directors, therefore the court had to pay due respect to the language and structure used by Parliament, rather than to preconceptions of what its objectives could or should have been. Claim of employee against the director could not stand in the present case. Appeal was dismissed accordingly.

Per Lord Toulson, JSC [Minority view]

Object of the Employers' Liability (Compulsory Insurance) Act, 1969 was that a company's employees should have insurance protection, in the event of suffering an illness or injury arising out of their employment for which the company was liable. Failure by the company to arrange and maintain such insurance carried a penal sanction. But the pool of those bearing legal responsibility for seeing that such protection was in place was not confined to the company itself. It also extends to the company's relevant officer or officers. Director, manager, secretary or other officer of the company who consented to, connived at or by neglect facilitated, a failure to maintain the requisite insurance was "deemed" to be guilty of the same offence as the company. The effect in substance was to place on such an officer a legal obligation not to cause or permit the company to be without the required insurance by consent, connivance or neglect, on pain of a criminal penalty. Imposition of criminal responsibility for a specified act (or omission) carried with it a legal obligation not to act (or omit to act) in such a way.

Functional approach to interpretation, which looked at the objective of the statute, was more appropriate for interpreting the Employers' Liability (Compulsory Insurance) Act, 1969, as said legislation was for the protection of a vulnerable group, a company's employees. However even on a formalist interpretation of the said Act the director was guilty as a principal of failing to insure and maintain the necessary insurance.

Historically courts have consistently held that breaches of provisions of legislation for the protection of employees were actionable at the suit of an employee who suffered from the breach. Thus, a breach of a provision of such legislation would ordinarily give rise to a potential cause of action, unless the language of the legislation pointed clearly in the opposite direction.

Groves v Lord Wimborne [1898] 2 QB 402, at 414-415; Butler (or Black) v Fife Coal Co Ltd [1912] AC 149 at 165-166; Cutler v Wandsworth Stadium Ltd [1949] AC 398, 407-408, 413-414 and Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 185 ref.

Conventional jurisprudence was that the court's function was to ascertain as a matter of interpretation whether Parliament intended that there should be civil liability under a statute, but where the statute was silent with regard to civil liability the judge's active role was to fill gaps left by the legislature.

Divergent Paths: The Academy and the Judiciary by Richard A. Posner (Harvard University Press, 2016), pg. 172 ref.

Per Lady Hale (Deputy President); [Minority view]

When Parliament passed sections 1 and 5 of the Employers' Liability (Compulsory Insurance) Act, 1969 it was intended that breach of such provisions should give rise, not only to criminal liability, but also to civil liability towards an employee who had been injured by the employer's breach of duty towards him and who, because of the failure to insure, would otherwise not receive the compensation for his injuries to which he was entitled.

Statutory duties imposed upon employers for the benefit of employees who suffered injury as a result of their breach gave rise to civil as well as criminal liability, absent a clear statutory intent to the contrary.

Groves v Lord Wimborne [1898] 2 QB 402; Butler (or Black) v Fife Coal Co Ltd [1912] AC 149; Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 185 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 732 ref.

Employers' Liability (Compulsory Insurance) Act, 1969 imposed a specific statutory duty upon employers, and also upon specified officers where the employer was a limited company. There could be no difference in substance between imposing criminal liability for failing to do something and imposing a duty to do it. The purpose was to protect a very specific class of people, namely employees who might be injured by the employer's breach of duty (whether arising by statute or at common law). The protection intended was that they should be compensated for their injuries even if, for whatever reason, the employer was unable to do so. Failure to insure meant that the employee was denied the very thing that the legislation was intended to provide for him.

Andrew Smith QC and Craig Murray (Instructed by Lefevre Litigation) for Appellant.

Roddy Dunlop QC and Richard Pugh (Instructed by Harper MacLeod LLP) for Respondent.

2016 S C M R 1988

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath and Lord Hodge

ANGOVE'S PTY LIMITED---Appellant

Versus

BAILEY and another---Respondents

Decided on 27th July, 2016.

(On appeal from [2014] EWCA Civ 215)

Per Lord Sumption, JSC; Lord Neuberger (President), Lord Clarke, Lord Carnwath and Lord Hodge, JJSC, agreeing.

(a) Principal and agent---

----Authority of agent, termination of---Scope---Circumstances in which the law will treat the authority of an agent as irrevocable---In order for the authority of an agent to be irrevocable, there must be an agreement that it should be irrevocable, and the authority must have been given to secure some interest of the agent (whether a proprietary interest, or a liability owed to the agent personally)---Where said two conditions were satisfied, the agent's authority was truly irrevocable in law as long as the personal interest of the agent subsisted.

The claimant, a winemaking company, contracted with the defendant-company, to act as its agent and distributor under an Agency and Distribution Agreement ("the agreement"). Under the terms of the agreement the defendant-company both bought wines from the claimant in its own right and sold wines on the claimant's behalf to customers. Terms of the agreement provided that a commission was payable to defendant-company in respect of products it sold to customers on claimant's behalf, and that the agreement was terminable by either side on six months' notice, or immediately on the appointment of an administrator or liquidator.

Defendant-company went into administration, and subsequently moved into creditors' voluntary liquidation. At the commencement of the administration, there were certain outstanding invoices, which represented the price of wine that defendant-company had sold to two retailers/customers who had not yet paid. Claimant terminated the agreement with the defendant-company and any authority of the defendant-company to collect payments due from these two customers. In the termination notice, claimant proposed to collect the payments directly from the customers and account to defendant-company separately for its commission. Liquidators of defendant-company objected to this course and claimed they were entitled to collect the outstanding payments, deduct the commission due to defendant-company, and leave claimant to prove in the winding up for the outstanding balance. Liquidators contended that defendant-company's authority as agent to collect the price of the goods was irrevocable because it needed it to recover its commission.

General rule was that the authority of an agent may be revoked, even if it was agreed in the contract that it was irrevocable. However, there was an exception if two conditions were satisfied; first, there must be agreement that the agent's authority was irrevocable, and secondly, the authority must have been given to secure some interest of the agent, whether a proprietary interest, or a liability owed to the agent personally. Agent's interest in recovering a debt in respect of commission already earned could be a relevant interest (although an agent's commercial interest in continuing to act in order to earn a commission would not). If the two conditions were satisfied, the agent's authority was truly irrevocable in law as long as the personal interest of the agent subsisted.

In the present case, neither condition for invoking the exception to the general rule was satisfied. The agreement between the parties was not expressed to be irrevocable and nor could this be implied. On the contrary, it made no provision to that effect nor indeed that it survived termination which happens on insolvency. Whilst, under the agreement, "accrued rights and remedies" survived termination of the agreement, the defendant-company's responsibility for collecting payments from customers could not be regarded as such a right of the company, particularly as there was nothing to prevent customers paying the claimant directly. As for defendant-company's right to commission under the agreement, this could survive termination of the agreement. However, defendant-company's authority to collect payments could not be regarded as securing the company's interest under such right. This was because there were other ways in which the commission could be recovered, for instance, if the customer paid the price directly to the claimant in which case the commission would be payable by the claimant directly. Similarly, if defendant-company paid the claimant the price on the bill of lading, it could not be regarded as having a continuing authority from the claimant to collect the price from the customer. At that point, defendant-company's right to collect payment from the customer derived from the law of unjust enrichment and not the authority of claimant (who would have no further standing in the matter after receiving payment from the defendant-company). It was inherently improbable that the parties should have intended authority to be irrevocable in the present case because they had expressly envisaged the possibility of insolvency and provided for a mutual right of termination in that event.

Claimant's termination of the agreement was immediately effective so as to end defendant-company's right to collect on the outstanding invoices. The monies were therefore held for the benefit of the claimant, and not defendant-company's creditors.

(b) Principal and agent---

----Agent, duty of---Monies received by agent on behalf of principal---Principles---Agent had a duty to account to his principal for money received on his behalf---Such duty however did not necessarily give rise to a trust of the money in the agent's hands; that depended on the intentions of the parties derived from the contract, or in some cases from their conduct---As a broad generalisation, the relations between principal and agent must be such that the agent was not at liberty to treat as part of his general assets money for which he was accountable to his principal; this would usually, but not invariably, involve segregating it from his own money.

Bowstead and Reynolds on Agency, 20th ed (2014), 219, para 6-041 ref.

(c) Principal and agent---

----Agent-company going into liquidation--- Monies held on "constructive trust" for principal---Principles---Where a recipient of money (i.e. agent) knew that impending insolvency would prevent it from performing the corresponding obligation, whether this could give rise to a liability to account on its part as a "constructive trustee"---Where money was paid with the intention of transferring it to the payee, the least that must be shown to establish a constructive trust was that the intention was vitiated, for example, because the money was paid as a result of a fundamental mistake or pursuant to a contract which has been rescinded, or, that irrespective of the intentions of the payer, in the eyes of equity the money had come into the wrong hands, as where it represented the fruits of a fraud, theft or breach of trust of fiduciary duty against a third party---Where money was being paid in circumstances in which there was a prospect of a total failure of consideration, such fact was not sufficient to mean that there was no intention on the part of the payer to transfer the entire legal and beneficial interest in the monies---Unless the agent was expressly made trustee for the money then it would form part of the agent's insolvent estate and the principal must prove in the winding up for the outstanding balance---Any suggestion of a flexible approach allowing the imposition of constructive trust simply because it would be contrary to any ordinary notion of fairness to allow the general pool of creditors to keep the monies, rather than the principal had to be rejected Neste Oy v Lloyd's Bank [1983] 2 Lloyd's Rep 658 not approved. In re Japan Leasing (Europe) plc [1999] BPIR 911 held to be wrongly decided.

Claimant-company made wines and it employed defendant-company as its agent and distributor pursuant to an Agency and Distribution Agreement ("the agreement"). Defendant-company went into administration and then into liquidation. At the start of the administration there were certain invoices outstanding which represented the price of wine that defendant-company had sold but which the retailers/customers had not yet paid for. Claimant gave written notice terminating the agreement and any authority that defendant-company had to collect on these invoices. Claimant sought to collect the invoices directly from the retailers/customers and account separately to defendant-company for its commission. The liquidators of defendant-company objected to such action by contending that they were entitled to collect on the outstanding invoices, deduct the commission due to defendant-company, and leave claimant to prove in the winding up for the rest of the outstanding amount. Claimant argued that monies paid by customers after the commencement of the administration of defendant-company were held on constructive trust for the claimant.

Where money was paid with the intention of transferring it to the payee, the least that must be shown to establish a constructive trust was that the intention was vitiated, for example, because the money was paid as a result of a fundamental mistake or pursuant to a contract which has been rescinded, or, that irrespective of the intentions of the payer, in the eyes of equity the money had come into the wrong hands, as where it represented the fruits of a fraud, theft or breach of trust of fiduciary duty against a third party. None of these conditions were present in the present case so no constructive trust arose. After commencement of the administration, moneys had been paid to the defendant-company by customers in the belief that such payment would discharge the customers' liability for the price of the wine. Such belief had not been mistaken and, therefore, no issue of constructive trust could arise in the present case. The agency relationship between defendant-company and the claimant was in the relevant respects one of debtor and creditor. In these circumstances the mere fact money was being paid in circumstances, in which there was a prospect of a total failure of consideration, was not sufficient to mean that there was no intention on the part of the payer to transfer the entire legal and beneficial interest in the monies. It did not become unconscionable for liquidators of defendant-company to retain it simply because the statutory insolvency regime intervened to require it to be shared on an equal footing with other creditors.

Neste Oy v Lloyd's Bank [1983] 2 Lloyd's Rep 658 not approved.

In re Japan Leasing (Europe) plc [1999] BPIR 911 held to be wrongly decided.

There was no constructive trust in the present case. Even if there was a constructive trust over money already paid by the claimant to the defendant-company then it would not form part of the insolvent estate of the defendant-company thus conferring priority on claimant over other creditors. This would be unfair when many of those creditors would otherwise be in a position no different from the claimant. The rule was, therefore, that unless the agent was expressly made trustee for the money then it will form part of the agent's insolvent estate and the principal must prove in the winding up for the outstanding balance.

Any suggestion of a flexible approach allowing the imposition of constructive trust simply because it would be contrary to any ordinary notion of fairness to allow the general pool of creditors to keep the monies, rather than the claimant had to be rejected. [English] law did not recognise the concept of a remedial constructive trust (i.e. a trust imposed retrospectively) and only recognised institutional constructive trusts (i.e. a trust that arises as a matter of law at the outset).

Stephen Moriarty QC, Francis Reynolds QC (Hon) and Nicholas Craig (Instructed by APP Law Solicitors) for Appellant.

Jamie Riley and Philip Hinks (Instructed by Shoosmiths LLP) for Respondents.

2015 S C M R 1152

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

SUE EVENWEL, ET AL---Appellant

Versus

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL---Respondent

Decided on 4th April, 2016.

(On appeal from the United States District Court for the Western District of Texas)

Per Ruth Bader Ginsburg, JSC; John G. Roberts, CJ, Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, JJSC agreeing; Samuel Anthony Alito and Clarence Thomas, JJSC, concurring but with their own reasons.

Election---

----One person, one vote" principle [under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution]---Meaning---"Equitable and effective representation"--- Scope--- Legislative districts---Legislative redistricting plan providing for districts that were roughly equal in total population instead of equal in the number of eligible voters---Constitutionality---"One person, one vote" principle allowed States to use total population, not just total voting-eligible population, in drawing of legislative districts---Use of a total-population baseline in drawing legislative districts served the principle of representational equality---Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all states (of the US) and countless local jurisdictions had followed for centuries---No reason was shown for the court to disturb such longstanding use of total population method---As the Framers of the Constitution (of the US) and the Fourteenth Amendment (to the US Constitution) comprehended, representatives served all residents, not just those eligible or registered to vote---Nonvoters had an important stake in many policy debates---By ensuring that each representative was subject to requests and suggestions from the same number of constituents, total population apportionment promoted equitable and effective representation---[Per Clarence Thomas, JSC: Constitution (of the US) did permit drawing up legislative districts using the total population apportionment but it did not 'impose' such view---Constitution (of the US) did not make any of the different methods of apportionment as the exclusive means of apportionment for State and local representatives---Constitution instead reserved such matters to the people---[Per Samuel Anthony Alito, JSC: Question as to whether a State was permitted to use some measure other than total population (method) was an important and sensitive question that the Court could consider if and when the Court had before it a State districting plan that, unlike the present case, used something other than total population as the basis for equalizing the size of districts]---Supreme Court held that (US) States may draw up legislative districts using the total population apportionment.

State (of the US) in question used total-population numbers when drawing legislative districts. Question that the Court had to decide, in the present case, was whether the State violated the "one-person, one-vote" principle, by adopting a legislative redistricting plan that provided for districts that were roughly equal in total population, instead of the number of eligible voters. Appellants argued that the districts in the map did not contain a substantially equal number of voters; that 'Equal Protection Clause required balancing the population of eligible voters from district to district, rather than the total population, and that total population count, which included non-voting residents, such as illegal immigrants, prisoners and children, diluted the voting power of citizens residing in districts that were home to smaller concentrations of non-voting residents. Accordingly appellants contended that the voter population in each district had to equalized rather than the total population.

Any attempt to locate a voter-equality mandate in the Equal Protection Clause [of the Fourteenth Amendment to the US Constitution] had to be rejected. History, precedent, and practice demonstrated that it was plainly permissible for jurisdictions to measure equalization by the total population of State and local legislative districts. Principle of representational equality figured prominently in the decision by the Framers of the Fourteenth Amendment to the US Constitution to count people, whether or not they qualified as voters. Consistent with Constitutional history, the Supreme Court's past decisions reinforced the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Court had always assumed the permissibility of drawing districts to equalize total population.

Baker v. Carr, 369 U.S. 186, 191-192 (1962); Reynolds v. Sims, 377 U.S. 560, 561 & 563(1964); Davis v. Bandemer, 478 U.S. 109, 123 (1986); Board of Estimate of City of New York v. Morris, 489 U.S. 688, 693-694 (1989); Kirkpatrick v. Preisler, 394 U.S. 531 (1969) and Gaffney v. Cummings, 412 U.S. 746 & 748 (1973) ref.

Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all States (of the US) and countless local jurisdictions had followed for decades, even centuries. Appellants had shown no reason for the Court to disturb this longstanding use of total population.

Framers of the Constitution and the Fourteenth Amendment had comprehended that representatives served all residents, not just those eligible or registered to vote. Nonvoters had an important stake in many policy debates-children, their parents, even their grandparents, for example, had a stake in a strong public-education system-and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative was subject to requests and suggestions from the same number of constituents, total-population apportionment promoted equitable and effective representation.

Per Clarence Thomas, JSC:

Precedents (in the US) did not require a State to equalize the total number of voters in each district. States may opt to equalize total population instead. Constitution did not prescribe any one basis for apportionment within States. It instead left States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. Constitution left the choice to the people alone-not to the Supreme Court.

Supreme Court through its judgments had struggled to explain whether the one-person, one-vote principle ensured equality among eligible voters or instead protected some broader right of every citizen to equal representation. In numerous cases the Supreme Court had emphasized that States must protect the right of eligible voters to have their votes receive equal weight, meaning that States had to draw districts that contained a substantially equal number of eligible voters per district. In contrast the Supreme Court in several cases had also taken a different view and suggested that one-person, one-vote principle protected the interests of all individuals in a district, whether they were eligible voters or not. Such lack of clarity by the Court on the one-person, one-vote principle, in turn, had left unclear whether States must equalize the number of eligible voters across districts or only the total population. Because the Court had not provided a firm account of what States must do when districting, States were left to guess how much flexibility (if any) they had to use different methods of apportionment. This inconsistency (if not opacity) was not merely a consequence of the Supreme Court's equivocal statements on one person, one vote. The problem was more fundamental. There was simply no way to make a principled choice between interpreting one person, one vote as protecting eligible voters or as protecting total inhabitants within a State. Constitution did not make either of them the exclusive means of apportionment for State and local representatives. In guaranteeing to the States a Republican Form of Government, the Constitution (of the US) did not resolve whether the ultimate basis of representation was the right of citizens to cast an equal ballot or the right of all inhabitants to have equal representation. The Constitution instead reserved these matters to the people.

Baker v. Carr, 369 U.S. 191 (1962); Gray v. Sanders, 372 U.S. 368 (1963); Reynolds v. Sims, 377 U.S. 545, 560-561 (1964); Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50 (1970); Gaffney v. Cummings, 412 U.S. 735, 750-751 (1973); Chapman v. Meier, 420 U.S. 1, 21-22, 26-27 (1975) and Chen v. Houston, 532 U.S. 1046, 1047 (2001) ref.

Supreme Court's attempt to impose its political theory (on one-person, one-vote principle) upon the States had produced a morass of problems. These problems were antithetical to the values that the Framers embraced in the Constitution. These problems confirmed that the Court had been wrong to entangle itself with the political process. First, in embracing one person, one vote, the (Supreme) Court had arrogated to the judiciary important value judgments that the Constitution reserved to the people. Second, the Court's efforts to monitor the political process had failed to provide any consistent guidance for the States.

Although the majority opinion in the present case did not choose among the different theories of apportionment, it necessarily denied that the Equal Protection Clause (of the Fourteenth Amendment to the Constitution) protected the right to cast an equally weighted ballot. Because States could equalize both total population and total voting power within the districts, they had to show only that the right to cast an equally weighted vote was part of the one-person, one-vote right that had been recognized.

Supreme Court's precedents had primarily based its one-person, one-vote jurisprudence on the theory that eligible voters have a right against vote dilution. But the Court's jurisprudence had vacillated too much to conclude that the Court's precedents precluded States from allocating districts based on total population instead. Under such circumstances, the choice was best left for the people of the States to decide for themselves how they should apportion their legislature.

Reynolds v. Sims, 377 U.S. 568 (1964); Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. at 52-53 (1970) and Burns v. Richardson, 384 U.S. at 92 (1966) ref.

It was not the role of the Supreme Court to calibrate democracy in the vain search for an optimum solution.

Per Samuel Anthony Alito, JSC

Both practical considerations and precedent supported the conclusion that the use of total population in apportionment was consistent with the one-person, one-vote rule. The decennial census required by the Constitution tallied total population. These statistics were more reliable and less subject to manipulation and dispute than statistics concerning eligible voters. Moreover, much of the time, creating districts that were equal in total population also resulted in the creation of districts that were at least roughly equal in eligible voters.

Whether a State was permitted to use some measure other than total population (method) was an important and sensitive question that the Supreme Court could consider if and when the Court had before it a state districting plan that, unlike the present case, used something other than total population as the basis for equalizing the size of districts.

Argued: 8th December, 2015.

2016 S C M R 1459

[Supreme Court of United States]

Present: John G. Roberts, C.J., Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

ABIGAIL NOEL FISHER---Petitioner

Versus

UNIVERSITY OF TEXAS AT AUSTIN, ET AL---Respondent

Decided on 23rd June, 2016.

(On writ of certiorari to the United States Court of Appeals for the Fifth Circuit)

Per Anthony M. Kennedy, J; Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, JJSC agreeing; John G. Roberts, CJ, Samuel Anthony Alito and Clarence Thomas, JJSC, dissenting. [Majority view]

(a) Educational institution---

----Admission policy---Racial preference---Race-conscious admission policy for about one-fourth of total seats to ensure racial inclusion and diversity in student body---Constitutionality and principles---Whether such policy violated the Equal Protection Clause of the Fourteenth Amendment (to the US Constitution)---Three principles were relevant for assessing the constitutionality of a public university's affirmative action program (policy of favouring members of a disadvantaged racial or ethnic group); first a university may not consider race as part of the admissions process unless it could withstand strict scrutiny, i.e., it must show that its purpose or interest was both constitutionally permissible and substantial, and that its use of the classification was necessary to accomplish that purpose; second, the decision to pursue the educational benefits that flowed from student body diversity was, in substantial measure, an academic judgment to which some, but not complete, judicial deference was proper; and third, when determining whether the use of race was narrowly tailored to achieve the university's permissible goals, the school bore the burden of demonstrating that "available" and "workable" "race-neutral alternatives" did not suffice---Compelling interest that justified consideration of race in admissions was not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flowed from student body diversity---Enrolling a diverse student body promoted cross-racial understanding, helped to break down racial stereotypes, and enabled students to better understand persons of different races---University did however have a continuing obligation to satisfy the strict scrutiny burden, by periodically reassessing the admission program's constitutionality, and efficacy, in light of the school's experience and the data it had gathered since adopting its race-conscious admissions plan, and by tailoring its approach to ensure that race played no greater role than was necessary to meet its compelling interests---University's goals could not be elusory or amorphous; they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them---Record of present case revealed that the University articulated concrete and precise goals that justified the compelling interest in considering of race in admissions---Record also revealed that the University studied and deliberated for months, concluding that 'race-neutral' programs had not achieved the University's diversity goals, a conclusion supported by significant statistical evidence, and that the consideration of race during admissions did have meaningful effect on class diversity---[Per Clarence Thomas, J] (Minority view) State's use of race in higher education admissions decisions was categorically prohibited by the Equal Protection Clause---Constitution (of the United States) abhorred classifications based on race)---[Per Samuel Anthony Alito, J] (Minority view) University lacked transparency in its decision-making process to introduce consideration of race into admissions---University did not present sufficient evidence to support its policies, particularly on the link between applicants selected in the race-conscious admissions process and their specific contributions to the educational benefits of diversity on campus---Race-conscious admissions programme favoured wealthy, better educated and high-performing minorities, whereas such affirmative-action programs were created to help disadvantaged students---University's vague policy goals under the race-based programme were so broad and imprecise that they could not withstand strict scrutiny---Additionally such programme discriminated against Asian-Americans---Without identifying what was missing from the African-American and Hispanic students it was already admitting through its race-neutral process, and without showing how the use of race-based admissions could rectify the deficiency, the University could not demonstrate that its racial preference procedure was narrowly tailored---Racial preferences had only a slight impact on minority enrollment, a race-neutral alternative likely could have reached the same result---Petitioner, in the present case, had not shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected by the University under the race-conscious admission policy---Race-conscious admissions program in use at the University at the time of petitioner's application was lawful under the Equal Protection Clause.

Per Anthony M. Kennedy, JSC [Majority view]

Respondent-university automatically granted admission to students from high schools in the State who were in the top 10% of their class, regardless of their race (Top Ten Percent Plan). Up to 75 percent of the seats in the University were filled through the said Plan. Remaining seats (about 25%) were filled through a "race-conscious admissions program" purpose of which was to ensure racial and ethnic diversity in the student body. Said 'admission programme' evaluated an applicant's talents, leadership qualities, family circumstances, ethnicity and 'race'. Petitioner, who was white caucasian by race, did not finish high school in the top 10% of her class, therefore, she applied through the 'race-conscious admission programme'. Petitioner failed to meet the threshold for admission even under the said 'admission programme'. Petitioner alleged that the university's race-conscious admission programme' disadvantaged and discriminated against 'white' applicants like her by accepting less qualified 'African-American' and 'Hispanic' students instead, which was a violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Three controlling principles were relevant for assessing the constitutionality of a public university's affirmative-action program (policy of favouring members of a disadvantaged racial or ethnic group). First, because racial characteristics so seldom provided a relevant basis for disparate treatment, race may not be considered by a university unless the admissions process could withstand strict scrutiny. Strict scrutiny required the university to demonstrate with clarity that its purpose or interest was both constitutionally permissible and substantial, and that its use of the classification was necessary to the accomplishment of its purpose. Second, that the decision to pursue the educational benefits that flowed from student body diversity was, in substantial measure, an academic judgment to which some, but not complete, judicial deference was proper. A university could not impose a fixed quota or otherwise define diversity as some specified percentage of a particular group merely because of its race or ethnic origin. Once, however, a university gave a reasoned, principled explanation for its decision, deference must be given to the university's conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals. Third, that no deference was owed when determining whether the use of race was narrowly tailored to achieve the university's permissible goals. A university bore the burden of proving that a "non-racial approach" would not promote its interest in the educational benefits of diversity. Though narrow tailoring did not require exhaustion of every conceivable race-neutral alternative or require a university to choose between maintaining a reputation for excellence and fulfilling a commitment to provide educational opportunities to members of all racial groups, it did impose on the university the ultimate burden of demonstrating that "race-neutral alternatives" that were both "available" and "workable" "did not suffice.

Fisher v. University of Tex. at Austin, 570 U. S. (2013) ref.

University had a continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances. University had to engage in periodic reassessment of the constitutionality, and efficacy, of its admissions program. Going forward, that assessment must be undertaken in light of the experience the university had accumulated and the data it had gathered since the adoption of its admissions plan. As the university examined such data, it should remain mindful that diversity took many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university valued. Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race played no greater role than was necessary to meet its compelling interest.

Compelling interest that justified consideration of race in college admissions was not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flowed from student body diversity. Enrolling a diverse student body promoted cross-racial understanding, helped to break down racial stereotypes, and enabled students to better understand persons of different races. Equally important, student body diversity promoted learning outcomes, and better prepared students for an increasingly diverse workforce and society.

Grutter v. Bollinger, 539 U. S at 306 and Gratz v. Bollinger, 539 U. S. 244 ref.

Increasing minority enrollment may be instrumental to such educational benefits, but it was not a goal that could or should be reduced to pure numbers. Indeed, since the University in the present case was prohibited from seeking a particular number or quota of minority students, it could not be faulted for failing to specify the particular level of minority enrollment at which it believed the educational benefits of diversity would be obtained. On the other hand, asserting an interest in the educational benefits of diversity writ large was insufficient. A university's goals could not be elusory or amorphous-they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.

Record of present case also revealed that before implementing the race-conscious admissions programme the University studied and deliberated for months, concluding that 'race-neutral' programs had not achieved the University's diversity goals, a conclusion supported by significant statistical and anecdotal evidence. Petitioner had not challenged the University's good faith in conducting such studies at any stage of the present case. University had also undertaken a year-long study and wrote a proposal, which concluded that the use of race-neutral policies and programs had not been successful in providing an educational setting that fostered cross-racial understanding, providing enlightened discussion and learning, or preparing students to function in an increasingly diverse workforce and society. Further support for the University's conclusion could be found in the depositions and affidavits from various admissions officers, all of whom articulated the same, consistent reasoned, principled explanation. In such circumstances it was incorrect on part of the petitioner to contend that the University had not articulated its compelling interest with sufficient clarity.

Record of present case showed that consideration of race during admissions did have meaningful, if still limited, effect on class diversity in the University. Fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.

Component of the University's admissions policy that had the largest impact on petitioner's chances of admission was not the school's consideration of race under its race-conscious admissions program but rather the guaranteed admission to students under the Top Ten Percent Plan. Because petitioner did not graduate in the top 10% of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming University class. Petitioner therefore would have had a better chance of being admitted to the University if the school used race-conscious holistic review to select its entire incoming class. Despite the Top Ten Percent Plan's outsized effect on petitioner's chances of admission, she had not challenged it. Petitioner's acceptance of the Top Ten Percent Plan had complicated the present case. In particular, it had led to a case record that was almost devoid of information about the students who secured admission to the University through the Top Ten Percent Plan. The Court thus could not know how students admitted solely based on their class rank differed in their contribution to diversity from students admitted through race-conscious admissions program.

Under the circumstances of the present case, a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources. Petitioner long since had graduated from another college, and the University's admission policy-and the data on which it first was based-may have evolved or changed in material ways.

University in the present case had met its burden of showing that the admissions policy it used at the time it rejected petitioner's application was narrowly tailored. Petitioner had not shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected by the University under the race-conscious admission programme.

Per Clarence Thomas, JSC, dissenting [Minority view]

State's use of race in higher education admissions decisions was categorically prohibited by the Equal Protection Clause. Constitution (of the United States) abhorred classifications based on race because every time the government placed citizens on racial registers and made race relevant to the provision of burdens or benefits, it demeaned everyone. Such constitutional imperative did not change in the face of a theory that racial discrimination may produce educational benefits. Majority opinion in the present case was irreconcilable with strict scrutiny, rested on pernicious assumptions about race, and departed from many of the precedents set by the Supreme Court (of the United States).

Per Samuel Anthony Alito, J, dissenting [Minority view]

University had not identified with any degree of specificity the interests that its use of race and ethnicity in admissions was supposed to serve. When it adopted its race-conscious admission programme, University claimed that the plan was needed to promote classroom diversity and it pointed to a study showing that African-American, Hispanic, and Asian-American students were underrepresented in many classes. But the University had never shown that its race-conscious plan actually ameliorated such situation. University presented no evidence that its admissions officers, in administering the "holistic" component of its race-conscious programme, made any effort to determine whether an African-American, Hispanic, or Asian-American student was likely to enroll in classes in which minority students were underrepresented. Nor had the University explained why the under representation of Asian-American students in many classes justified its plan, which discriminates against those students.

University claimed the race-conscious admission programme was needed to achieve a "critical mass" of African-American and Hispanic students, but it didn't define such term in anything other than the vaguest terms. Without knowing in reasonably specific terms what critical mass was or how it could be measured, a reviewing court could not conduct the requisite careful "judicial inquiry" into whether the use of race was necessary.

University had argued that the race-based portion of its admissions policy allowed acceptance of the African-American or Hispanic children of successful professionals in the State - in other words wealthy, better educated and high-performing minorities. Such an argument turned affirmative action on its head. Affirmative-action programs were created to help disadvantaged students.

When the University decided to adopt its race-conscious plan, it had every reason to know that its plan would have to satisfy strict scrutiny and that this meant that it would be its burden to show that the plan was narrowly tailored to serve compelling interests. University had failed to make such showing. University's vague policy goals were so broad and imprecise that they could not withstand strict scrutiny.

On top of failing to meet strict scrutiny, the University discriminated against Asian-Americans. University repeatedly expressed the desire to attract and enroll more African-American and Hispanic students but ignored Asian-Americans. Although based on the state's population, Asian-Americans "overrepresented" the student body, but a study cited by University found that more classrooms lacked Asian-Americans than Hispanic students.

University's failure to provide any definition of the various racial and ethnic groups was revealing. University did not specify what it meant to be "African-American," "Hispanic," "Asian American," "Native American," or "White." The University evidently labelled each student as falling into only a single racial or ethnic group, without explaining how individuals with ancestors from different groups were to be characterized. As racial and ethnic prejudice receded, more and more students would have parents (or grandparents) who fell into more than one of University's five racial groups. According to latest census figures, individuals describing themselves as members of multiple races had substantially grown in the country.

University claimed that it did not keep records about how or how many students were affected by the consideration of race in the school's admissions, although the school had every reason to do so. University asserted that it had no idea which students were admitted as a result of its race-conscious system and which students would have been admitted under a race-neutral process. University thus made no effort to assess how the individual characteristics of students admitted as the result of racial preferences differed (or did not differ) from those of students who would have been admitted without them. Without identifying what was missing from the African-American and Hispanic students it was already admitting through its race-neutral process, and without showing how the use of race-based admissions could rectify the deficiency, the University could not demonstrate that its racial preference procedure was narrowly tailored.

University's purported interests in demographic parity, classroom diversity, interracial diversity, and avoiding racial isolation could not justify the use of racial preferences in the admission process. Racial preferences had only a slight impact on minority enrollment, a race-neutral alternative likely could have reached the same result.

Independent investigation into the University's admission process revealed that it had a clandestine admissions program that favoured the children of "politically connected individuals," and that officials tried to cover that up.

Per Samuel Anthony Alito, J

(b) Fundamental Rights---

----Equality of citizens---Government policy--- Racial preference---Judicial review---Scope---Racial characteristics seldom provided a relevant basis for disparate treatment, therefore the right of equality of all citizens demanded that racial classifications be subjected to the most rigid judicial scrutiny---Government bore the burden of proof to demonstrate with clarity that its purpose or interest was both constitutionally permissible and substantial, and that its use of the classification was necessary to the accomplishment of its purpose---In all contexts, racial classifications were permitted only as a last resort, when all else had failed---Judicial review must begin from the position that any official action that treated a person differently on account of his race or ethnic origin was inherently suspect---Racial and ethnic distinctions of any sort were inherently suspect and thus called for the most exacting judicial examination---Under strict scrutiny, the use of race must be necessary to further a compelling governmental interest, and the means employed must be "specifically and narrowly'" tailored to accomplish the compelling interest---Analysis and level of judicial scrutiny applied to determine the validity of a racial classification did not vary simply because the objective appeared acceptable---Nor did the standard of judicial review depend on the race of those burdened or benefited by a particular classification---Any person, of whatever race, had the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.

Fisher v. University of Tex. at Austin, 570 U. S. (2013) and Grutter v. Bollinger, 539 U. S at 388 ref.

2016 S C M R 1561

[Supreme Court of United States]

Present: John G. Roberts, C.J., Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

TERRANCE WILLIAMS---Petitioner

Versus

PENNSYLVANIA---Respondent

Decided on 9th June, 2016.

(On writ of certiorari to the Supreme Court of Pennsylvania, Eastern District)

Per Anthony M. Kennedy, J; Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, JJSC agreeing; John G. Roberts, CJ, Samuel Anthony Alito and Clarence Thomas, JJSC, dissenting. [Majority view]

(a) Bias---

----Judicial bias---Recusal from Bench---Due process of law---Scope---Judge participating in the review of a death penalty case in which he was personally involved when he previously served as a prosecutor/district attorney---Whether violation of due process of law---Judge must recuse himself from a defendant's criminal case, based on an impermissible risk of actual bias, when he was personally involved in making a critical decision as a prosecutor earlier in the defendant's case---No attorney was more integral to the accusatory process than a prosecutor who participated in a major adversary decision; the decision to pursue the death penalty was a critical choice---Due process guarantee that "no man can be a judge in his own case" would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision---Judge's denial of the recusal motion in the present case and his subsequent participation in petitioner's post-conviction appeal violated the due process clause---Appearance of bias demeaned the reputation and integrity not just of one jurist, but of the larger institution/bench of which he or she was a part---Both the appearance and reality of impartial justice were necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself---Neither the involvement of multiple members on the Bench nor the passage of time relieved the judge in question/former prosecutor of the duty to withdraw or recuse himself---Fact that the judge's vote was not the deciding vote on the multi-member bench of the court did not lessen the unfairness---Supreme Court held that due process entitled the petitioner to a proceeding in which he may present his case with the assurance that no member of the court was predisposed to find against him---Case was remanded to the court below accordingly. [Per John G. Roberts, CJ, (Minority view)]; In the present case, there was no evidence that the judge in question had actually been involved in, or formed a decision on, whether to seek the death penalty, and therefore there was no "objective risk of actual bias" such that it was fundamentally unfair for him to hear the case---Due Process Clause did not mandate recusal in cases such as the present one, it was up to state authorities and not the Supreme Court to determine whether recusal should be required]---[Per Clarence Thomas, J (Minority view); Present matter before the Supreme Court and petitioner's criminal case (that ended decades ago) were not a "single case" or "matter"---In the present matter before the Supreme Court, the criminal conviction of petitioner was not at issue; instead, the issue was a question of post-conviction relief, a separate civil matter, which was wholly different from what "R" was involved with as a prosecutor in the criminal case---Due Process Clause was not offended in the present matter as "R" had no pecuniary interest in the case and had not served as the prosecutor in the 'same proceeding'].

Per Anthony M. Kennedy, J [Majority view]

Petitioner was convicted of murder and sentenced to death in a state court. At the time of petitioner's trial and sentencing, "R" was the district attorney of the state. In addition to heading the office that prosecuted the petitioner, "R" personally authorized pursuit of the death penalty in petitioner's case. On account of certain mitigating circumstances being suppressed by the trial prosecutor, state court stayed petitioner's execution and granted him a new penalty hearing, an order that the state immediately appealed to the state Supreme Court. By the time of that appeal, district attorney "R" had been elevated as Chief Justice of the State Supreme Court, and petitioner filed a motion requesting that "R" recuse himself or, at least, refer the recusal motion to the full court for decision. "R" declined to do either, and instead joined the court's opinion reversing the lower court's post-conviction sentencing relief and re-instated the death sentence. Two weeks later "R" retired. Petitioner argued that due process compelled recusal of "R", given the risk of potential bias and partiality that may taint both the judge's decision-making and impartiality. State argued that "R's" recusal was not constitutionally required, nor was his presence on the State Supreme Court in violation of the Due Process Clause of the Fourteenth Amendments to the US Constitution, and that any due process violation was a harmless error because "R" did not cast the deciding vote in the case

Under the Due Process Clause (of the Fourteenth Amendment to the US Constitution) where a judge had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant's case, the risk of actual bias in the judicial proceeding rose to an unconstitutional level. Due process guaranteed an absence of actual bias on the part of a judge. Bias was easy to attribute to others and difficult to discern in oneself. To establish an enforceable and workable framework, the Court's precedents applied an objective standard that, in the usual case, avoided having to determine whether actual bias was present. Court asked not whether a judge harbored an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position was likely to be neutral, or whether there was an unconstitutional potential for bias. Of particular relevance to the present case, an unconstitutional potential for bias existed when the same person served as both accuser and adjudicator in a case. This objective risk of bias was reflected in the due process maxim that "no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome."

In re Murchison, 349 U. S. 133, 136 and 137 (1955) and Caperton v. A. T. Massey Coal Co., 556 U. S. 881 ref.

Due process guarantee that "no man can be a judge in his own case" would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision. No attorney was more integral to the accusatory process than a prosecutor who participated in a major adversary decision. When a judge had served as an advocate for the State in the very case the court was now asked to adjudicate, a serious question arose as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome. Furthermore, there was, a risk that the judge would be so psychologically wedded to his or her previous position as a prosecutor that the judge would consciously or unconsciously avoid the appearance of having erred or changed position. In addition, the judge's own personal knowledge and impression of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties' arguments to the court.

Withrow v. Larkin, 421 U. S. 57 (1975) ref.

Prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervened before the former prosecutor revisited the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remained a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time did not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

Authorization to seek the death penalty against the petitioner in the present case amounted to significant, personal involvement of "R" as a prosecutor in a critical trial decision. Without his express authorization, the state would not have been able to pursue a death sentence against the petitioner. Importance of this decision and the profound consequences it carried made it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment. As a result, failure of "R" to recuse himself from the present case presented an unconstitutional and unacceptable risk of actual bias.

Due process violation arising from the participation of an interested judge was a defect "not amenable" to harmless-error review, regardless of whether the judge's vote was dispositive. Unconstitutional failure to recuse constituted structural error even if the judge in question did not cast a deciding vote. It did not matter whether the disqualified judge's vote was necessary to the disposition of the case. Deliberations of an appellate panel, as a general rule, were confidential. As a result, it was neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decision making process. Indeed, one purpose of judicial confidentiality was to assure jurists that they could re-examine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. The fact that the interested judge's vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position. That outcome did not lessen the unfairness to the affected party.

Puckett v. United States, 556 U. S. 129, 141 (2009) ref.

Multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeaned the reputation and integrity not just of one jurist, but of the larger institution of which he or she was a part. Insistence on the appearance of neutrality was not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice were necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.

Supreme Court held that the petitioner must be granted an opportunity to present his claims to a court unburdened by any possible temptation; that due process entitled the petitioner to a proceeding in which he may present his case with assurance that no member of the court was predisposed to find against him. Case was remanded back to the State Supreme Court accordingly.

Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980) ref.

Per John G. Roberts, CJ; dissenting [Minority view]

Present case was about whether petitioner may overcome the procedural bar on filing an untimely habeas petition, which required him to show that the government interfered with his ability to raise his habeas claim, and that the information on which he relied could not have been obtained earlier with the exercise of due diligence. "R" had not made up his mind about either the contested evidence or the legal issues under review in petitioner's habeas petition. Neither the contested evidence nor the legal issues were ever before "R" as prosecutor. In sum, there was not such an "objective risk of actual bias," that it was fundamentally unfair for "R" to participate in the decision of an issue having nothing to do with his prior participation in the case.

Due Process Clause in the Fourteenth Amendment to the US Constitution did not prohibit "R" from hearing petitioner's case. Due Process Clause did not mandate recusal in cases such as the present one, it was up to state authorities-not the Supreme Court-to determine whether recusal should be required.

Per Clarence Thomas, J; dissenting [Minority view]

Issue in the present case was not whether the Due Process Clause permitted "R" to act as both accuser and judge in petitioner's case, rather whether a judge may review a petition for post-conviction relief when that judge previously served as district attorney while the petitioner's criminal case was pending. Present case before the Supreme Court and petitioner's criminal case (that ended decades ago) was not a "single case" or "matter". In the present case, the criminal conviction was not at issue; instead, the matter was a question of post-conviction relief, a separate civil matter, which was wholly different from what the "R" was involved with as a prosecutor in the case. "R" was still serving in the district attorney's office when petitioner's criminal proceedings ended and his sentence of death became final. Petitioner's filing of a petition for state post-conviction relief did not continue (or resurrect) that already final criminal proceeding. Post-conviction proceeding was not part of the criminal proceeding itself but was in fact considered to be civil in nature.

Historical practice and precedent construe judicial disqualification narrowly and therefore did not require a judge who was involved in a criminal case to recuse himself from the post-conviction proceedings, which were a separate civil matter. "R" did not serve as both prosecutor and judge in the 'same case'. Even assuming "R"'s supervisory role as district attorney was tantamount to serving as "counsel" in petitioner's' criminal case, that case ended nearly five years before "R" joined the State Supreme Court. "R" then participated in a separate proceeding by reviewing petitioner's petition for post-conviction relief. "R" might have been "personally involved in a critical trial decision to seek the death penalty, but that "trial" was petitioner's criminal trial, not the post-conviction proceedings before the Supreme Court now. Perhaps it was unwise of "R" to participation in petitioner's' post-conviction proceeding, but it was within the bounds of historical practice.

Furthermore "R" had no direct, personal, substantial pecuniary interest in the adjudication of petitioner's post-conviction proceedings. Due Process Clause would not be offended, so long as "R" had no pecuniary interest in the case and had not served as the prosecutor in the very 'same proceeding'.

Per Clarence Thomas, J; dissenting with Anthony M. Kennedy, J [Minority view]

(b) Bias---

----Judicial bias---Scope---Specter of bias alone in judicial proceeding was not a deprivation of due process---Rather than constitutionalize every judicial disqualification rule, the Court left such rules to legislatures, bar associations, and the judgment of individual adjudicators.

(c) Bias---

----Judicial bias---Scope---Judge could not decide a case in which he had a direct and personal financial stake---Nor could a judge adjudicate a case in which he was a party---But mere bias, without any financial stake in a case, was not grounds for disqualification---Law would not suppose a possibility of bias or favour in a judge, who was already sworn to administer impartial justice, and whose authority greatly depended upon that presumption and idea.

Dr. Bonham's Case, 8 Co. Rep. 107a, 114a, 118a, 77 Eng. Rep. 638, 647, 652 (C. P. 1610); Earl of Derby's Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K. B. 1614); 3 W. Blackstone, Commentaries on the Laws of England, 361 (1768) (Blackstone); Brookes v. Earl of Rivers, Hardres 503, 145 Eng. Rep. 569 (Exch. 1668); Frank, Disqualification of Judges, 56 Yale L. J. 605, 609 (1947) (Frank) and R. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges §1.4, p. 7 (2d ed. 2007) ref.

Argued: 29th February, 2016.

2016 S C M R 1797

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

ROBERT F. McDONNELL---Petitioner

Versus

UNITED STATES---Respondent

Decided on 27th June, 2016.

(On writ of certiorari to the United States Court of Appeals for the Fourth Circuit)

Corruption and corrupt practices---

----Bribery---Conduct amounting to an 'official act'---Scope---Accused-(Governor) and his wife accepted loans, gifts and other benefits from a businessman---Accused was alleged to have reciprocated by facilitating the businessman in getting public universities to perform research studies on one of his product---Accused also arranged meetings between the businessman and government officials, and hosted a launch event for the product at the Governor's Mansion, and spoke to various government officials about the benefits of the product---Whether the Governor by doing all such acts had committed an 'official act' and used his office to facilitate the businessman---Held, that for purposes of federal bribery statute an "official act" was a decision or action on a "question, matter, cause, suit, proceeding or controversy"---"Question, matter, cause, suit, proceeding or controversy" must involve a formal exercise of governmental power that was similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee; it must also be something specific and focused that was "pending" or "may by law be brought" before a public official---To qualify as an "official act," the public official must make a decision or take an action on such "question, matter, cause, suit, proceeding or controversy," or agree to do so---Such decision or action may include using his official position to exert pressure on another official to perform an "official act," or to advise another official, knowing or intending that such advice would form the basis for an "official act" by another official---Actions like arranging a meeting, contacting another official, or hosting an event (or agreeing to do so), on its own, was not sufficient to rise to the level of an "official act" for the purpose of federal bribery statutes---Expansive interpretation of the word "official act" would raise significant constitutional concerns---Conscientious public officials in normal democratic discourse arranged meetings for constituents, contacted other officials on their behalf, and included them in events all the time---Adopting a broader reading of the statutory language would likely adversely affect public officials' interactions with their constituents due to fears of prosecution and therefore make it more difficult for them to do their jobs---Instruction given to the jury in the present case did not properly define the term "official action"---Jury instructions at issue were impermissibly broad and did not provide enough guidance regarding whether the actions in question needed to be formal exercises of governmental power---Conviction of accused was vacated in such circumstances.

Accused-Governor and his wife were alleged to have accepted $175,000 in loans, gifts, and other benefits from a businessman "W", who was owner of a company, which had developed a nutritional supplement. "W" wanted the Food and Drug Administration to classify the nutritional supplement as a pharmaceutical, however, such a classification required expensive testing, clinical trials and studies, and the company lacked funds for such purpose. "W" sought the accused-Governor's assistance in getting public universities to perform research studies on the nutritional supplement. Between 2009 and 2012, "W" and the accused met several times and agreed on independent testing of the nutritional supplement. "W" also provided expensive gifts to the accused and his wife and was willing to help with their financial troubles. A launch event for the nutritional supplement was held at the Governor's Mansion, and the accused's wife facilitated meetings between the company's officials and officials of certain State Universities to get the studies started. Accused also spoke to various government officials about the benefits of the nutritional supplement, and his wife purchased, sold, and gifted the company's stock in such a way as to avoid reporting requirements. Accused and his wife were charged for corruption, under federal bribery statutes that made it a crime to take "official action" in exchange for money, campaign contributions, or any other thing of value. Trial Court instructed the jury that "official act" encompassed "acts that a public official customarily performs," including acts "in furtherance of longer-term goals" or "in a series of steps to exercise influence or achieve an end." Accused requested that the trial court should have further instructed the jury that merely arranging a meeting, attending an event, hosting a reception, or making a speech were not, standing alone, 'official acts' even if they were settled practices of the official, because they were not decisions on matters pending before the government; that an "official act" must intend to or in fact influence a specific official decision the government actually made - such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation. Trial court declined to give such instructions to the jury. Eventually the jury convicted the accused. Accused sought his acquittal on the grounds that the definition of "official act" in the jury instructions was too broad and erroneous, and that there was insufficient evidence to convict him.

To convict the accused and his wife of bribery, the Government was required to show that accused committed (or agreed to commit) an "official act" in exchange for the loans and gifts.

Federal bribery statute defined "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Issue in the present case was whether arranging a meeting, contacting another official, or hosting an event-without more-could be a "question, matter, cause, suit, proceeding or controversy," and if not, whether it could be a decision or action on a "question, matter, cause, suit, proceeding or controversy."

18 U.S.C. §201(a)(3) quoted.

Words "cause," "suit," "proceeding," and "controversy" used in the federal bribery statute connoted a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination. Words "question" or "matter" indicated that the same must be similar in nature to a "cause, suit, proceeding or controversy." For purposes of present case a typical meeting, telephone call, or event arranged by a public official did not qualify as a "question, matter, cause, suit, proceeding or controversy".

For purposes of federal bribery statute a decision or action to initiate a research study or a decision or action on a qualifying step, such as narrowing down the list of potential research topics, would qualify as an "official act." A public official may also make a decision or take an action on a "question, matter, cause, suit, proceeding or controversy" by using his official position to exert pressure on another official to perform an "official act." In addition, if a public official used his official position to provide advice to another official, knowing or intending that such advice would form the basis for an "official act" by another official, that too could qualify as a decision or action for purposes of federal bribery statute. Public official was not required to actually make a decision or take an action on a "question, matter, cause, suit, proceeding or controversy"; it was enough that the official agreed to do so. The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the "official act," so long as he agreed to do so.

United States v. Birdsall, 233 U.S. 223, 234 (1914) and Evans v. United States, 504 U.S (1992) at 268 ref.

In context of the present case arranging a meeting, hosting an event, meeting with other officials, or speaking with interested parties -on its own - was not a "decision or action" within the meaning of "official act", even if the event, meeting, or speech was related to a pending question or matter. Instead, something more was required: definition of "official act" specified that the public official must make a decision or take an action on that question or matter, or agree to do so. Simply expressing support for the research study at a meeting, event, or call-or sending a subordinate to such a meeting, event, or call-similarly did not qualify as a decision or action on the study, as long as the public official did not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an "official act." Such (narrow) interpretation of the phrase "official act" gave each word in the federal bribery statute a meaning that was proper in context and not superfluous.

United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999) ref.

Of course, this was not to say that setting up a meeting, hosting an event, or making a phone call was always an innocent act, or was irrelevant. If an official set up a meeting, hosted an event, or made a phone call on a question or matter that was or could be pending before another official, that could serve as evidence of an agreement to take an official act. A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter. And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal.

In addition to being inconsistent with both text and precedent, an expansive interpretation of "official act" would raise significant constitutional concerns. Federal bribery statute prohibited quid pro quo corruption-the exchange of a thing of value for an "official act." An expansive interpretation of "official act" would imply that, nearly anything a public official accepted-from a campaign contribution to lunch-counted as a quid; and nearly anything a public official did-from arranging a meeting to inviting a guest to an event- counted as a quo. But conscientious public officials arranged meetings for constituents, contacted other officials on their behalf, and included them in events all the time. The basic compact underlying representative government assumed that public officials would hear from their constituents and act appropriately on their concerns. Expansive interpretation of "official act" could cast a cloud of potential prosecution over such relationship. Officials might wonder whether they could respond to even the most common place requests for assistance, and citizens with legitimate concerns might be deterred from participating in democratic discourse.

Instruction given to the jury in the present case by trial court in respect of the meaning of "official act" lacked important qualifications. Trial Court should have instructed the jury that it must identify a "question, matter, cause, suit, proceeding or controversy" involving the formal exercise of governmental power; that the pertinent "question, matter, cause, suit, proceeding or controversy" must be something specific and focused that was "pending" or "may by law be brought before any public official," such as the question whether to initiate the research studies; that to convict the accused the jury had to find that he made a decision or took an action-or agreed to do so-on the identified "question, matter, cause, suit, proceeding or controversy", and that merely arranging a meeting or hosting an event to discuss a matter did not count as a decision or action on that matter. Because the jury was not correctly instructed on the meaning of "official act," it may have convicted the accused-Governor for conduct that was not unlawful. Conviction of accused was vacated accordingly.

Argued: 27th April, 2016.