SCMR 2017 Judgments

2017 S C M R 1161

[Constitutional Court of South Africa]\

Present: Nkabinde, ACJ, Cameron, J, Froneman, J, Jafta, J, Khampepe, J, Madlanga, J, Mbha, AJ, Mhlantla, J, Musi, AJ and Zondo, J

HOTZ and others---Applicants

Versus

UNIVERSITY OF CAPE TOWN---Respondent

Case No. CCT 280/16, decided on 12th April, 2017.

(a) Costs---

----Order as to costs---Exercise of discretion by court---Scope---Award of costs was a discretionary matter, therefore, such discretion must be exercised judicially, having regard to all the relevant circumstances.

(b) Costs---

----Constitutional litigation---Order as to costs---Principles---General rule in constitutional litigation was that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs---In the first place said rule diminished the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights---Constitutional litigation frequently went through many courts and the costs involved could be high---Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences---Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they would be deprived of their costs because of some inadvertent procedural or technical lapse---Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations---Thirdly, it was the state that bore primary responsibility for ensuring that both the law and state conduct were consistent with the Constitution---Where there was a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it was appropriate that the state should bear the costs if the challenge was good, but if it was not, then the losing non-state litigant should be shielded from the costs consequences of failure---In this way responsibility for ensuring that the law and state conduct was constitutional was placed at the correct door---General rule on costs in constitutional litigation, however was not inflexible and there may be circumstances that justified departure from the general rule such as where the litigation was frivolous or vexatious, or the conduct on the part of the litigant deserved censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs---Ultimate goal was to do that which was just having regard to the facts and circumstances of the case.

Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 138 (Affordable Medicines) and Biowatch Trust v Registrar, Genetic Resources [2012] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at para 22 (Biowatch) ref.

(c) Costs---

----Constitutional litigation---Order as to costs---Exercise of judicial discretion in awarding costs---Principles---Power of appellate court to interfere in a costs order made by a court below---Scope---Applicants were part of group of students that participated in protest against a public university---Applicants caused extensive damage to the university's property---University filed an application before the Court of first instance and obtained an interdict against several protestors, including the applicants---In addition to granting the interdict, the Court of first instance ordered the applicants to pay university's costs jointly and severally, including the costs of two counsel---Question as to whether the Court of first instance correctly exercised costs discretion---Held, that where the discretion exercised by court below was one in the true sense, contemplating that the court choose from a range of options, an appellate court would require a good reason to interfere with the exercise of such discretion---Cautious approach was, therefore, required---Appellate Court may have a different view on whether the costs award was just and equitable, however, it should be careful not to substitute its own view for that of the court below because it may, in certain circumstances be inappropriate to interfere with the exercise of discretion by court below---Primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice---"Nature of the issues" rather than the "characterisation of the parties" was the starting point---Costs should not be determined on whether the parties were financially well-endowed or indigent---Applicants in the present case were engaged in a protest because they could not, among other things, afford the university fees---At the heart of the protest was a seething sense of injustice that prevailed among university students and the country at large at the failure of the state and universities to provide free and quality education---Said issue had the effect on the protesters' Constitutional 'right to education', which concerned not only the applicants, but also other students generally in other universities in the country---Whilst the applicants' conduct went beyond the boundary of a peaceful protest, the constitutional context of the issue which lead to the protests had to be taken into account---Issue raised by the protestors, including the applicants, was of genuine constitutional import---Although the applicants were unsuccessful in the courts below, the courts erred in considering the chilling effect the costs order would have on the litigants, in the context of constitutional justice---Applicants were neither frivolous nor vexatious in opposing the University's application for grant of interdict---Court of first instance erred in not applying the general principle on costs in relation to constitutional litigation and failed to realize that present case did not fall within any of the exceptions to the general principle---Court of first instance did not exercise its discretion judicially in imposing costs on the applicants, therefore the Constitutional Court (present court) was entitled to interfere with the costs award---On a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the Appellate court, but also in the Court of first instance---Constitutional Court directed that each party was to pay its own costs, in the Court of first instance, the Appellate court and the Constitutional Court---Application for leave to appeal was disposed of accordingly.

Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 138 (Affordable Medicines) and Biowatch Trust v Registrar, Genetic Resources [2012] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at para 22 (Biowatch) ref.

(d) Fundamental Rights---

----Right to peaceful assembly---Scope---Individual did not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remained peaceful in his or her own intentions or behaviour.

SATAWU v Garvas [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (Garvas) ref.

T Masuku, T Sidaki and R Matsala instructed by Godla and Partners for Applicants.

2017 S C M R 1803

[Constitutional Court of South Africa]

Present: Mogoeing, C.J., Nkabinde, ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J

UNITED DEMOCRATIC MOVEMENT---Applicant

Versus

SPEAKER OF THE NATIONAL ASSEMBLY and others---Respondents

Case No. CCT 89/17, decided on 22nd June, 2017.

Per Mogoeng, CJ; Nkabinde, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Mojapelo, Pretorius and Zondo, JJ, concurring.

(a) No Confidence Motion---

----Motion of no confidence in the Cabinet or the President---Purpose and scope---Motion of no confidence was inextricably connected to the foundational values of accountability and responsiveness to the needs of the people---Said motion was a mechanism at the disposal of the National Assembly to resort to, whenever necessary, for the enhancement of the effectiveness and efficiency of its constitutional obligation to hold the Executive accountable and oversee the performance of its constitutional duties---Accountability was necessitated by the reality that constitutional office-bearers occupied their positions of authority on behalf of and for the common good of all the people, who put them there, directly or indirectly---Constitutional office-bearers, therefore, had to account for the way they served the people---Motion of no confidence therefore existed to strengthen regular and less fatal accountability and oversight mechanisms---Mechanism of a motion of no confidence was all about ensuring that the constitutional project was well managed; it was not imperilled; the best interests of the nation enjoyed priority in whatever important step was taken; and the nation was governed only by those deserving of governance responsibilities---To determine, through a motion of no confidence, the continued suitability for office of those who governed, was a crucial consequence-management or good-governance issue---Needs of the people must never be allowed to be neglected without appropriate and most effective consequences, thus, a motion of no confidence was fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive's performance---[Constitution of the Republic of South Africa, 1996, Ss.92 & 102].

(b) No Confidence Motion---

----Motion of no confidence against the President (of South Africa)---Procedure---Voting by "secret ballot"---Constitutionality---Question as to whether the Constitution of South Africa and Rules of the National Assembly permitted or prohibited voting in a motion of no confidence in the President by secret ballot---Speaker of the National Assembly refused to prescribe a secret ballot in a motion of no confidence in the President by holding that voting procedures in the Assembly were determined by the Constitution and the Rules of the National Assembly and that none of them provided for a vote on a motion of no confidence to be conducted by a secret ballot---Opposition parties contended that although the Constitution and the Rules of the National Assembly did not make any express provision for a secret ballot on a motion of no confidence in the President, but the said legal instruments also did not prohibit it; that Ss. 86 & 102(2) of the Constitution (of South Africa),read with Item 6 of Part A of Schedule 3 to the Constitution and Rr. 6, 103, 104 & 129 of the Rules of the National Assembly, required that the President was elected via secret ballot, thus, the same practice should apply when seeking his or her removal from office; that at the very least, the Speaker retained a discretion to allow a secret ballot to decide the fate of the President; that if the voting process were to expose the identities of members of the National Assembly, it would prevent the members to vote according to their individual conscience without undue influence, intimidation or fear of disapproval by others---President contended that members of the National Assembly were required to carry out the decisions of their respective political parties, and that party discipline was being mischaracterised as intimidation; that the constitutional values of accountability and transparency should trump all other issues raised by the opposition parties in support of voting by secret ballot, and that to compel a secret ballot would trench upon the separation of powers; held, that the Constitution prescribed voting by secret ballot in the general elections and the elections of the Deputy Speaker, the Speaker and the President, but it was silent on the voting procedure for their removal---Decision therefore remained with the National Assembly to determine the voting procedure in conducting a motion of no confidence in terms of its constitutional powers (under S. 57 of the Constitution)---Both possibilities of an open or secret ballot were constitutionally permissible---Otherwise, if Members always had to vote openly and in obedience to enforceable party instructions, provision would not have been made for a secret ballot when the President, Speaker, Chairperson of the National Council of Provinces and their Deputies were elected, and the Constitution would have made it clear that voting would always be by open ballot---Rules 102, 103 and 104 of the National Assembly empowered the Speaker, on behalf of the Assembly, to prescribe an open ballot or a secret ballot in a motion of no confidence in the President, though such determination was situation-specific, and it would be the Speaker's judgment call to make, having due regard to what would be the best procedure to ensure that Members exercised their oversight powers most effectively---When the Speaker exercised the power to determine the appropriate voting procedure in the motion under particular circumstances, several factors would have to be taken into account---Said factors included but were not limited to; first, whether the chosen voting procedure would allow Members of the National Assembly to vote according to their conscience and in the furtherance of the best interests of the people; second, whether the prevailing circumstances were either peaceful, or toxified and potentially hazardous; third, the imperative of the Speaker's impartiality must be consciously factored into the decision making process; fourth, the effectiveness of a motion of no confidence as an accountability and consequence-management tool must be enhanced by the chosen voting procedure; fifth, the possibility of corruption or bribes in the event of a secret ballot must be considered; sixth, the need for the value of transparency to find expression in the passing of the motion must be taken into account; and seventh, the decision must be rationally connected to the purpose of a motion of no confidence and should not be made arbitrarily---Speaker had the constitutional power to prescribe voting in a motion of no confidence in the President to be conducted by secret ballot under appropriate circumstances---Exercise of such power must be duly guided by the need to enable effective accountability, what was in the best interests of the people and obedience to the Constitution---Constitutional Court refrained from directing the Speaker to have the motion of no confidence in the President conducted by secret ballot, as it would trench separation of powers, however the Court observed that since the Speaker now knew that she had the power to have the motion of no confidence conducted by secret ballot, she had the properly-guided latitude as laid down in the present judgment to prescribe what she considered to be the appropriate voting procedure in the circumstances---Constitutional Court set-aside the decision of the Speaker whereby she decided that she did not have the power to prescribe voting in the motion of no confidence in the President by secret ballot, and the opposition's request for voting by secret ballot was remitted back to the Speaker for a fresh decision---Application was allowed accordingly---[Constitution of the Republic of South Africa, 1996, Ss. 19(3)(a), 57(1), 92 & 102(2) & Sched. 3, Part A, Item 6---Rules of the National Assembly (9th Edition), Rr. 102, 103 & 104].

Article 5 of the Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States, 7 October 2002; Botswana Democratic Party v Umbrella for Democratic Change Case No CACGB-114-14 at para 76 and Moyo v Zvoma Case No SC 28/10 ref.

D Mpofu SC, K Pillay SC, S Budlender and N Muvangua instructed by Mabuza Attorneys for Applicant.

M T K Moerane SC and R T Tshetlo instructed by the State Attorney for the First Respondent.

I A M Semenya SC, M Sikhakhane SC and M Sello instructed by the State Attorney for the Second Respondent.

T Ngcukaitobi, F Hobden and J Mnisi instructed by Kwinana and Partners Inc for the Fifth Respondent.

A Katz SC and S Pudifin-Jones instructed by Laurens De Klerk Attorneys for the Sixth Respondent.

L H Adams instructed by Mabuza Attorneys for the Eighth Respondent.

G Budlender SC, M Adhikari and M Mbikiwa instructed by the Legal Resources Centre for the First Amicus Curiae (Council for the Advancement of the South African Constitution).

N Bawa SC and M Bishop instructed by the Legal Resources Centre for the Second Amicus Curiae (Unemployed Peoples' Movement).

N H Maenetje SC, R Tulk and Y S Ntloko instructed by Webber Wentzel Attorneys for the Third Amicus Curiae (institute for Security Studies).

D Unterhalter SC, M Musandiwa and M Finn instructed by Irene Rome Attorneys and Conveyancers for the Fourth Amicus Curiae (Shosholoza Progressive Party).

2017 S C M R 1949

[Constitutional Court of South Africa]

Present: Mogoeing C.J., Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J

SOUTH AFRICAN DIAMOND PRODUCERS ORGANISATION---Applicant

Versus

MINISTER OF MINERALS AND ENERGY N.O. and 5 others---Respondents

Case No. CCT 234/16, decided on 24th July, 2017.

(a) Fundamental Rights---

----Right not to be deprived of property arbitrarily---Essential characteristics---For determining whether such right had been infringed, the court had to ask, first, whether the thing in issue was property; second, whether there had been a deprivation; and third, whether the deprivation was arbitrary.

National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (FNB) at para 51 ref.

(b) Fundamental Rights---

----Right not to be deprived of property arbitrarily---'Property'---Scope---Ownership of a corporeal movable object was recognised as property.

National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (FNB) at para 51 ref.

(c) Fundamental Rights---

----Right not to be deprived of property arbitrarily---'Deprivation'---Scope---Deprivation of property would occur only where the interference was 'substantial', meaning that the intrusion must be so extensive that it had a legally relevant impact on the rights of the affected party.

Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC) at para 32; Offit Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd [2010] ZACC 20; 2011 (1) SA 293 (CC); 2011 (2) BCLR 189 (CC) (Offit) at para 41 and Tshwane City v Link Africa [2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (Link Africa) at para 167 ref.

(d) Fundamental Rights---

----Right not to be deprived of property arbitrarily---'Property'---Scope---'Licences' may, in some instances, be considered 'property'.

Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC) ref.

(e) Fundamental Rights---

----Right not to be deprived of property arbitrarily---Scope---Government regulation changing the practice by which market value of diamonds was determined---Market value of diamonds obtained by producers and dealers falling as a result of the regulation---Question as to whether the regulation infringed the rights of producers and dealers not to be deprived of property arbitrarily---Members of South African Diamond Producers Organisation ('members), who were licensed diamond dealers, had developed a mode of operation at their licensed business premises, whereby parcels of unpolished diamonds from local producers were offered on an anonymous tender basis to other local licensed dealers---Non-licensed "experts", who attended on behalf of prospective foreign buyers, "assisted" the licensed purchasers---Such practice allegedly not only assisted in determining the correct "international" market value of the diamonds, but also enabled local producers to socialise with prospective foreign purchasers with the result that a prospective foreign purchaser was already lined up, should the decision be made that parcels purchased be exported and sold on---Such practice was effectively put to an end after insertion of S. 20A into the Diamonds Act 56 of 1986 ('section 20A')---Said section provided that no licensee (member) may be assisted by a non-licensee during the viewing, purchasing or selling of unpolished diamonds at any place where unpolished diamonds were offered for sale in terms of the Act, except at a diamond exchange and export centre---Members sought to have S. 20A of the Diamonds Act (56 of 1986) declared unconstitutional by contending that it infringed S. 25 of the Constitution of the Republic of South Africa, 1996 (right not to be deprived of property arbitrarily); that producers and dealers were deprived of 30% of the market value of the diamonds they sold, because S. 20A prohibited a key part of the price-forming mechanism i.e. unlicensed expert assistance; that without such assistance, producers and dealers were unable to obtain the prices they were previously able to obtain, and suffered a 30% loss; that this interfered with the members' right to alienate their property which, included the right to obtain the highest possible price for that property; held, that in the present case there was no deprivation of property, as S. 20A did not interfere with producers' and dealers' right to alienate their diamonds in a legally significant way---Deprivation analysis required an enquiry into the extent of the interference with the right in question---On the facts of present case it was impossible to quantify the "loss" members had suffered as a direct result of S. 20A---No loss had been proved by the members, thus, the court could not make a finding that there had been interference to the extent that constituted a 'deprivation'---Further, an attempt to calculate the alleged loss in value was beset by the difficulty of locating the point in time at which the "loss" was to be measured---Measuring the extent of the loss entailed comparing the price of unpolished diamonds at a past point in time, to the price sometime after S. 20A was inserted into Diamonds Act (56 of 1986)---Question then would be which future price was to be used for purposes of comparison; should this be the price directly after insertion of S. 20A; or the price a year later, once the market had adapted to the new regulations; or price at the time papers were filed for the present case---In any market, business adapted to new regulation and created new business practices around that regulation---Market was an ever-changing place, with the market value of goods similarly fluid---Even if the loss had somehow been proved, there would still be no deprivation of property, as no legally protectable interest or entitlement was removed by S. 20A---Producers and dealers were still permitted to sell their diamonds, and to realise full market value for them---Section 20A did not prohibit sale, nor did it require that a portion of the proceeds be donated to the state---Only aspect that was limited was the way in which producers and dealers were to conduct sales, not the right to sell itself---Producers and dealers still had the same right as before to obtain the highest possible price for the diamonds they sold---Section 20A had only changed, first, the manner in which the members may alienate their diamonds; and, second, the market conditions that determined what the highest price would be, as producers and dealers were no longer entitled to obtain the assistance of unlicensed persons when determining the price of their diamonds except at a diamond exchange and export centre---Limitation on the manner in which producers and dealers may alienate their diamonds was not sufficiently substantial to constitute a "deprivation" of property in those diamonds---Producers and dealers did not generally have a legally protectable interest in conducting a sale according to a particular practice or obtaining a specific value for their goods, or in valuing their goods according to a particular method---Market was an inherently regulated space, and prices obtainable in that market were necessarily impacted by government regulation---Every time a government decision or regulation made a particular business strategy unlawful, it could not be said that the persons who preferred to conduct their business in accordance with that strategy had been deprived of property---Resultantly the limitation imposed by S. 20A clearly did not constitute a substantial interference with licensees' rights of ownership in their diamonds, and there was no deprivation of property---Accordingly there was no infringement of S. 25(1) of the Constitution of the Republic of South Africa, 1996---To the extent that the licences held by members were to be considered as property, the limitation imposed by S. 20A was not substantial, as it did not have a legally relevant impact on the rights of the members---Licences entitle dealers to buy, sell, import and export unpolished diamonds---None of those entitlements was removed by S. 20A; what was removed was their entitlement to be assisted in these activities by unlicensed foreigners at locations---Such entitlement was never subject to a licence, but was rather a business practice that grew up in relation to the permissions granted in terms of the licence---Section 20A was held not be constitutionally invalid.

(f) Fundamental Rights---

----Right to choose trade, occupation or profession freely---Scope---Government regulation changing the practice by which market value of diamonds was determined---Market value of diamonds obtained by producers and dealers falling as a result of the regulation---Question as to whether the regulation restricted the freedom of producers and dealers to choose a trade, occupation or profession or if it simply regulated the practice of trades of diamond producing and dealing---Members of South African Diamond Producers Organisation ('members), who were licensed diamond dealers, had developed a mode of operation at their licensed business premises, whereby parcels of unpolished diamonds from local producers were offered on an anonymous tender basis to other local licensed dealers---Non-licensed "experts", who attended on behalf of prospective foreign buyers, "assisted" the licensed purchasers---Such practice allegedly not only assisted in determining the correct "international" market value of the diamonds, but also enabled local producers to socialise with prospective foreign purchasers with the result that a prospective foreign purchaser was already lined up, should the decision be made that parcels purchased be exported and sold on---Such practice was effectively put to an end after insertion of S. 20A into the Diamonds Act 56 of 1986 ('section 20A')---Said section provided that no licensee (member) may be assisted by a non-licensee during the viewing, purchasing or selling of unpolished diamonds at any place where unpolished diamonds were offered for sale in terms of the Act, except at a diamond exchange and export centre---Members sought to have S. 20A of the Diamonds Act (56 of 1986) declared unconstitutional by contending that it infringed S. 22 of the Constitution of the Republic of South Africa, 1996 (right to choose trade, occupation or profession); held, that S.20A only 'regulated' the practice of diamond trade and did not impose a formal legal bar to choosing to practise the trade of a diamond dealer or producer---Restrictions on the right to practise a profession were subject to a less stringent test than restrictions on the choice of a profession---Test to determine whether S. 20A regulated the diamond trade within constitutionally permissible limits was whether said provision was rationally related to a legitimate government purpose and did not infringe any of the (Fundamental) rights---Question was whether there was a rational basis for S. 20A; not whether another measure may have been more effective, or less disruptive---All S. 20A did was prohibit licensees from being assisted by unlicensed persons when viewing, purchasing or selling unpolished diamonds, except at a diamond exchange and export centre---Producers and dealers were still able to obtain assistance if they so wished, but that assistance must either be rendered by a licensed person or, if they specifically sought the assistance of a person who was not licensed, such assistance may be rendered only at a diamond exchange and export centre---Prohibiting unlicensed persons from being involved in trade except at diamond exchange and export centre was rationally related to the legitimate purpose of monitoring the movement of unpolished diamonds---More involvement that unlicensed persons were permitted to have in the process of buying, selling and exporting unpolished diamonds, the greater the risk of illegal transactions going unnoticed, thus, it would be easier for the state to control and monitor diamond trading if all persons who engaged in the trading process outside the diamond exchange and export centre were at least known to the state through a licensing process---Based on such purpose alone, S. 20A was not irrational in the manner in which it sought to regulate the trade of diamond producing and dealing---Resultantly, the freedom to choose one's trade, occupation or profession was not limited by S. 20A---Section 20A was held not be constitutionally invalid.

Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (Affordable Medicines) at para 63 and S v Lawrence, S v Negal, S v Solberg [1997] ZACC 11; 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) ref.

J L Gildenhuys instructed by Cranko Karp and Associates Inc. for Applicant.

I A M Semenya SC and T J Machaba instructed by Mkhabela Huntley Adeyeke Inc. for Respondents Nos. 1, 2 and 5.

2017 S C M R 493

[High Court of Australia]

Present: Kiefel, C.J., Bell, Gageler, Keane and Nettle, JJ

QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR RODNEY NORMAN CULLETON: In the matter of

[2017] HCA 4

Decided on 3rd February, 2017.

Per Kiefel CJ; Bell, Gageler and Keane, JJ agreeing; Nettle, J also agreeing but with his own reasons.

(a) Election---

----Disqualifications for being Member of Senate---Conviction---Ineligibility for election due to conviction for an offence punishable by term of imprisonment for one year or longer [section 44(ii) of the Commonwealth of Australia Constitution Act ("the Constitution")]---At date of his nomination senator in question was convicted for an offence punishable by term of imprisonment for one year or longer, and he was liable to be sentenced---Conviction was subsequently annulled---Question was whether (subsequent) annulment of conviction could have retrospective effect, and remove the disqualification under S. 44(ii) of the Constitution---[Per Kiefel, CJ]: Held, that the Constitution stated anyone convicted of an offence punishable by a prison term of one year or longer was not eligible for election---Senator in question was charged and convicted in the year 2014 for larceny---Conviction was later annulled in August 2016, but because he was under the charge at the time of his election in July 2016, he was ineligible for election---Subsequent annulment of the conviction had no effect on that state of affairs---Senator was a person who was 'convicted' and 'subject to be sentenced' for an offence punishable by imprisonment for one year or longer at the time of the 2016 election, both as a matter of fact and as a matter of law, therefore he was incapable of being chosen as a senator under S. 44(ii) of the Constitution---[Per Nettle, J agreeing but with his own reasons:] Disqualification under S. 44(ii) of the Constitution was directed to a conviction in fact regardless of whether it was subsequently annulled---Need for certainty in the electoral process made it highly desirable that, if a person was convicted of a relevant offence, he or she should forthwith cease to be eligible for election, or, if already elected, should cease to be capable of sitting, until and unless the conviction was quashed or annulled or the sentence was spent; if it were otherwise, there could be long periods following conviction of a relevant offence until an appeal or application for annulment was finally heard and determined in which it would be impossible to say whether the person so convicted was or was not eligible to be elected, or was or was not eligible to continue to sit as a member of Parliament---At the date of his nomination, senator in question stood convicted of larceny but he remained to be sentenced---Maximum penalty that the court could impose on the senator was two years' imprisonment---Consequently, looking at the matter as at the date of nomination, the senator was, by reason of his conviction and the operation of S. 44(ii) of the Constitution, incapable of being chosen as a senator---High Court (of Australia) ordered that by reason of S. 44(ii) of the Constitution, there was a vacancy in the Senate for the place for which senator in question was returned---Matter was disposed of accordingly.

Sykes v Cleary (1992) 176 CLR 77 at 99-101, 108, 130, 132 and Nile v Wood (1987) 167 CLR 133 at 139 ref.

(b) Election---

----Disqualifications for being Member of Parliament---Conviction---Person who "had been convicted and was under sentence, or subject to be sentenced, for any offence punishable by imprisonment for one year or longer" [section 44(ii) of Commonwealth of Australia Constitution Act]---Scope---Words used in relevant provision of the Constitution (Australia) made it evident that the framers of the Constitution were concerned to ensure that not only should a person who had already been sentenced to a term of imprisonment of one year or longer be disqualified from being chosen or from sitting as a Senator; so too should a person who was able to be so sentenced.

(c) Words and phrases---

----"Annulment of judicial proceedings"---Meaning.

Walker, The Oxford Companion to Law, (1980) at 66 and Sweet, A Dictionary of English Law, (1882) at 49 ref.

Per Nettle, J: agreeing with Kiefel, CJ but with his own reasoning.

(d) Election---

----Disqualifications for being Member of Parliament--- Person attracting any of the disqualifications under relevant provisions (section 44) of the Constitution (Australia) "shall be incapable of being chosen"---Meaning---Words "shall be incapable of being chosen" referred to the process of being chosen, of which nomination was an essential part---When a candidate for election was not qualified for election at the time of nomination, he or she was incapable of being chosen

Sykes v Cleary (1992) 176 CLR 77 at 100, 108, 130 and 132 and Free v Kelly (1996) 185 CLR 296 at 301 ref.

(e) Interpretation of Constitution---

----Constitution was not limited in its application to what existed at the time (it was made) and was to be construed according to the continued life and progress of the community.

The Commonwealth v Kreglinger and Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413 ref.

P E King with P W Lithgow appearing on behalf of Senator Rodney Norman Culleton (instructed by Maitland Lawyers)

2017 S C M R 1

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Manzoor Ahmad Malik and Khilji Arif Hussain, JJ

COMMISSIONER OF INCOME TAX and another---Appellants

Versus

BALOCHISTAN CONCRETE AND BLOCK WORKS LTD. and others---Respondents

Civil Appeals Nos. 1264 to 1270 of 2006, 975 of 2007, 229 of 2010, 716, 717, 722, 723 of 2011, 697 of 2015 and C.M.A. No.793 of 2008 in Civil Appeal No.1574 of 2007, decided on 25th November, 2016.

(Against the judgments dated 27.1.2006/30.3.2006, 30.4.2009/15.4.2011/5.5.2011/12.11.2014 of the High Court of Sindh, Karachi passed in ITA No.178/1999, ITR No.102/1991, Ref. Case No.130/1997, ITR No.131/1997, ITA No.177/1999, ITA No.217/1999, ITA No.208/1999, ITR No.185/1997, ITRA No.531/2000, ITA No.295/1997, ITA No.296/1997, ITA No.929/2000, ITA No.930/2000 and ITC No. 482/2004)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 35--- Business loss, carry forward of---Conditions for the right to carry forward business, losses for the purposes of set-off enumerated.

Following are the conditions that must exist for the right to carry forward business losses for the purposes of set-off:

(i) The loss should fall under the head 'income from business or profession defined in section 22 of the Income Tax Ordinance, 1979;

(ii) It should not be a loss to which section 36 of the Income Tax Ordinance, 1979 applies, i.e. speculation losses;

(iii) The loss shall be carried forward to the following assessment year and set-off against the profits and gains of such business or profession assessable for that year. In other words, the loss being carried forward cannot be set-off against a source other than the profits and gains of such business or profession;

(iv) The business or profession in which the loss was originally sustained should continue to be carried on by the assessee for the assessment year in which carried forward loss was sought to be set-off;

(v) Loss cannot be carried forward for more than six years from the assessment year for which the loss was first computed; and

(vi) Loss cannot be carried forward unless it had been determined in pursuance of a return filed under section 55 of the Income Tax Ordinance, 1979. In order to be entitled to carry forward a loss, the assessee must submit a return under Section 55 and have an assessment made for the year in which he had incurred the loss. The Assessing Officer had to notify to the assessee by an order in writing the amount of the loss as computed by him which the assessee was entitled to have carried forward.

(b) Interpretation of statutes---

----Tax statute---Ambiguity in interpretation---Interpretation in favour of the tax payer should be preferred.

Pakistan through Secretary Finance and others v. Messrs Lucky Cement and another 2007 SCMR 1367 ref.

(c) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 14, 34, 35 & Second Sched., Cls. 118D, 119, 122 & 125--- Industrial undertaking---Carry forward of business loss incurred during tax holiday period---Scope---Industrial undertaking was entitled to carry forward the losses incurred during the tax holiday period and have it set-off against the income earned in the assessment years beyond the tax holiday period in accordance with S. 35 of the Income Tax Ordinance, 1979.

The Commissioner of Income-Tax, East Zone, Karachi v. Messrs lqbal Engineering Works and another PLD 1986 SC 556 distinguished.

(d) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 38(6) & Third Sched., R. 3A--- Industrial undertaking---Unabsorbed depreciation allowance---Industrial undertaking was not entitled to carry forward- to the post-tax holiday period, the unabsorbed depreciation allowances that arose during the tax holiday period.

Rule 3A of Third Schedule to the Income Tax Ordinance, 1979 provided for depreciation allowance to be deemed to have been allowed, which in turn meant that it had been given due effect for the purposes of section 38(6) of the Ordinance and therefore could not be carried forward to subsequent assessment years. Rule 3A provided a clear exception to carrying forward of unabsorbed depreciation allowances under section 38(6) of the Income Tax Ordinance, 1979.

Dr. Farhat Zafar, Advocate Supreme Court, Muhammad Siddiq Mirza, Advocate Supreme Court, Shakeel Ahmed, Advocate Supreme Court, Muhammad Habib Qureshi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in all cases).

Nemo for Appellants (in C.M.A. 793 of 2008).

Mian Allah Nawaz, Senior Advocate Supreme Court for Respondents (in C.A. 1268 of 2006).

Salman Pasha, Advocate Supreme Court for Respondents (in C.As. 716, 717 of 2011 and 697 of 2015).

Ex parte for Respondents (in C.As. 1264, 1270 of 2006 and 975 of 2007).

Nemo for Respondents (in C.As. 229 of 2010, 722 and 723 of 2011).

2017 S C M R 9

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Ijaz ul Ahsan, JJ

ARMY WELFARE TRUST (NIZAMPUR CEMENT PROJECT), RAWALPINDI and another---Petitioners

Versus

COLLECTOR OF SALES TAX (NOW COMMISSIONER INLAND REVENUE), PESHAWAR---Respondent

Civil Petition No. 1983 of 2012, decided on 14th October, 2016.

(On appeal from the judgment dated 24.4.2012 in SAO No.2 of 2000 passed by the Peshawar High Court, Peshawar)

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

----S. I94---Sales Tax Act (VII of 1990), S. 2(1)---Constitution of Pakistan, Arts. 175(1) & 185(2)(d)---Appellate Tribunal, Inland Revenue ("Appellate Tribunal")---Status---Order passed by Appellate Tribunal set aside by the High Court---Whether judgment of High Court was to be challenged before the Supreme Court by filing an appeal OR petition for leave to appeal---Appellate Tribunal could neither be categorized as a "court" nor "equated with the tribunals envisaged in the Constitution" which exercised judicial powers---Appellate Tribunal, Inland Revenue, was not mentioned or provided for in the Constitution, therefore, it could not be categorized or be deemed to be a court in terms, of Art. 185(2)(d) of the Constitution---Where the High Court set aside an order of the Appellate Tribunal, it did not do so of a 'court immediately below', consequently, if an order or judgment of the Appellate Tribunal was set aside by the High Court, the only remedy against the judgment of the High Court would be by filing a petition for leave to appeal before the Supreme Court.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501 ref.

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

----S. 47(5)---Reference/appeal(erstwhile) to the High Court against order of Appellate Tribunal---Scope---Jurisdiction of the High Court tinder S. 47(5) of the Sales Tax Act, 1990, was restricted to matters involving only questions of law---Reference or appeal (erstwhile) to the High Court against a judgment of the Appellate Tribunal under the Sales Tax Act, 1990 could only be filed on a question of law.

F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax 2014 SCMR 907 ref.

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

----Ss. 3B(1), 13(1) & 47(5)---S.R.O. No. 561(1)/94 dated 9th June, 1994---Sales tax, collection of---Cement manufacturer exempted from sales tax---Question as to whether the manufacturer had collected sales tax on supplies made by it---Such question was a question of fact which could not be decided by the High Court in a reference filed before it under S. 47(5) of the Sales Tax Act, 1990---Even otherwise in the present case, no evidence of sales tax collection was produced before the Appellate Tribunal, before the High Court or even before the Supreme Court---Internal pricing mechanism of a manufacturer was not a substitute for proof/evidence of actual collection of sales tax in terms of S. 3B of the Sales Tax Act, 1990---Since sales tax was not collected by the cement manufacturer the question of paying the same to the revenue department did not arise---Appeal was allowed accordingly.

Ali Sibtain Fazli, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Petitioners.

Dr. Farhat Zafar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

2017 S C M R 19

[Supreme Court of Pakistan]

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

KALEEM ULLAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.46-L and Criminal Miscellaneous Application No.24-L of 2016, decided on 1st February, 2016.

(Against the order dated 13.10.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.11871-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 427, 109, 148 & 149---Attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---No specific injury had been attributed to the accused in the FIR---Ten accused persons were implicated in the FIR out of which seven persons were exonerated during the investigation, therefore, the question regarding culpability of accused required further probe into his guilt within the purview of S. 497(2), Cr.P.C.---Investigation of the case had already been finalized and a challan had been submitted and despite framing of a charge by the Trial Court no prosecution witness has so far got his statement recorded during the trial---Accused was behind bars since about last 8 months and his continued incarceration was not likely

Shahzad Hassan Sheikh, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab and Sajjad, I.O. for the State.

2017 S C M R 21

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

KHALID AZIZ and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Services and General Administration and others---Respondents

Civil Petitions Nos. 1324-L and 1410-L of 2015, decided on 11th March, 2016.

(Against the judgment dated 20.02.2015 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.3126 and 3671 of 2010)

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

----S. 4(1)(b)(v)---Disciplinary proceedings---Removal from service---Accused stenographer was alleged to have prepared bogus transfer letters for some teachers after taking bribes---Bribe money was allegedly delivered to the accused by the co-accused---Proper disciplinary proceedings had been conducted and after fulfilling all the codal formalities the allegations against the accused and co-accused had been fully proved---As per the statement recorded during the inquiry proceeding all the teachers almost unanimously stated that they gave different amounts to co-accused who further delivered the bribe money to accused for issuing the transfer letters which were found to be bogus---In the presence of such substantial evidence against the accused and co-accused the order for their removal from service was justified---Petition for leave to appeal was dismissed accordingly.

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

----S. 5---Punjab Anti-Corruption Establishment Rules, 1985, R. 7---Civil servant/public official-Criminal proceedings by Anti-Corruption Establishment authorities---Disciplinary proceedings under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Said criminal and disciplinary proceedings could simultaneously proceed independently but the conclusion arrived at by the Anti-Corruption Establishment authorities did not, in any way, override the disciplinary proceedings.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioner (in C.P. 1324-L of 2015).

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner (in C.P. 1410-L of 2015).

Khawar Ikram Bhatti, Additional A.-G. for Respondents (in both cases).

2017 S C M R 54

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

MUHAMMAD ILYAS---Petitioner

Versus

MUHAMMAD ABID alias BILLA and others---Respondents

Criminal Petition No.524-L of 2013, decided on 13th January, 2016.

(Against the judgment dated 13-3-2013 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.285-J and 1320 of 2008 and Murder Reference No.22 of 2009)

Appeal against acquittal---

----Murder---Reappraisal of evidence---In the Inquest Report no time of death had been recorded which indicated that till preparation of the Inquest Report the FIR had not been registered---Post-mortem examination of the dead body of deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution---Eye-witnesses were chance witnesses and they had failed to bring any evidence on the record establishing the stated reason for their presence close to the deceased at the relevant time---Eye-witnesses produced by the prosecution had also seriously contradicted each other on many important aspects of the case---One of the accused had also received two incised wounds on his body during the occurrence, including one deep wound on his chest, but the prosecution had completely suppressed the said injuries sustained by one of the accused---Doctor who had examined said accused confirmed his injuries within a matter of three hours of sustaining them---Suppression of injuries on the body of said accused exposed the bona fide of the complainant party in narrating the incident---Motive set up by the prosecution had not been established through any independent evidence---Crime-empties had been sent to the Forensic Science Laboratory after the arrest of accused persons and after recovery of the weapons of offence from their custody---High Court had rightly concluded that the prosecution had failed to prove its case against accused persons beyond reasonable doubt---Petition for leave to appeal challenging acquittal of accused persons was dismissed accordingly.

Ch. Farooq Mahmood Kahloon, Advocate Supreme Court for Petitioner.

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

2017 S C M R 56

[Supreme Court of Pakistan]

Present: Mushir Alam and Umar Ata Bandial, JJ

MUHAMMAD AKRAM---Petitioner

Versus

DCO, RAHIM YAR KHAN and others---Respondents

Civil Petition No. 2411 of 2014, decided on 17th October, 2016.

(Against the order dated 28,10.2014 passed by Punjab Service Tribunal, Lahore in Appeal No.3093 of 2014)

(a) Administration of justice---

----Courts were sanctuaries of justice, and in exercise of authority to do ex debito justitiae, they could remedy a wrong and suppress a mischief to which a litigant was entitled.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional jurisdiction of the Supreme Court/High Court to convert one type of proceedings into another--¬Scope---No fetters or bar could be placed on the High Court or the Supreme Court to convert and treat one type of proceeding into another and proceed to decide the matter either itself, provided it had jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court, or it may remit the lis to the competent authority/forum or court for decision on merits---Courts do follow the practice of treating and or converting appeal into revisions and vice versa and constitutional petition into appeal or revision and vice versa.

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

----S. 16---Dismissal from service---Appeal filed before wrong forum---Limitation---Scope---Employee instead of filing departmental appeal before appellate authority as provided under S. 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, filed constitutional petition before the High Court---High Court sent the constitutional petition to the appellate authority and directed to treat the same as " departmental appeal" and "to decide the same on its own merits after hearing the petitioner"---Constitutional petition converted into departmental appeal, was dismissed on merits by the appellate authority, but at the same time it was observed that "that no departmental appeal under S. 16 of the Act, 2006 has ever been filed by the petitioner"---Appeal filed before the Service Tribunal was simply dismissed as barred by time---Legality---Time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned---Observation of the appellate authority that "that no departmental appeal under S. 16 of the Act, 2006 has ever been filed by the petitioner" in the facts and circumstances of the case was uncalled for and could not be approved---Apparently it was observation of the appellate authority, which influenced the Service Tribunal to dismiss the service appeal as barred by time---Once the constitutional petition, which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as departmental appeal, Service Tribunal, had fallen in to error to dismiss the appeal before it on the ground of limitation alone, without adverting to the merits of the case as were attended by the appellate authority---Date of filing of the constitutional petition within time should have been reckoned as date of filing departmental appeal and ought to have been treated as departmental appeal for all practical purposes as ordered by the High Court---Supreme Court directed that appeal before the Service Tribunal, shall be deemed to be pending and should be decided on merits after hearing all the parties concerned--- Appeal was allowed accordingly.

Shamsul Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Sindh and another v. Muhammad Ilyas and others 2016 SCMR 189 and Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa and 2 others 2015 PLC (C.S.) 215 ref.

Muhammad Bashir Khan, Advocate Supreme Court for Petitioner.

Raja Muhammad Arif, Additional A.-G. and Muhammad Akram, DDEO for Respondents.

2017 S C M R 61

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

FAIZ JALANI alias IMRAN MAMA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 26-L of 2016, decided on 8th March, 2016.

(Against the order dated 7-12-2015 passed by the Lahore High Court Lahore in Criminal Miscellaneous No. 14747-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---Murder in issue had remained unwitnessed and although the name of accused had figured in the FIR yet his name had been mentioned therein not as a culprit but as a friend of the deceased---Only pieces of evidence being relied upon by the prosecution against the accused were the recovery of some mobile telephone sets and a handcart and last-seen evidence--- Memorandum of identification of the mobile telephone sets available on record did not disclose any mark of identification of the recovered mobiles so as to connect the same with the deceased---No evidence was available on the record to establish any connection of the recovered handcart with the murder in question or with the alleged removal of the (lead body by using the said handcart---Last-seen evidence and the question of proximity vis-a-vis the said piece of evidence was to be attended to by the Trial Court on the basis of the evidence to be produced before it---Case against the accused called for further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Ch. Din Muhammad, Advocate Supreme Court for the Complainant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and M. Shahbaz, S.I. for the State.

2017 S C M R 77

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

ZUHAIR ABBAS TAHEEM---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 933-L of 2016, decided on 16th September, 2016.

(Against the order of the Lahore High Court, Lahore dated 1.6.2016 passed in Crl. Misc. No. 5623-B of 2011)

Criminal Procedure Code (V of 1898)--

----S. 498--- Penal Code (XLV of 1860), Ss. 420, 468 & 471--- Preparation of forged agreement to sell to usurp property---Ad interim pre-arrest bail, confirmation of---No direct allegation against the accused was made in the FIR to the effect that he himself prepared the alleged forged agreement to sell, rather the allegation of preparing the said forged agreement was against the co-accused persons---All three co-accused persons had already been enlarged on bail by the Supreme Court---Moreover, civil litigation was pending between the accused and the complainant inasmuch as accused had filed a suit for specific performance which was pending adjudication before the civil court, whereas the FIR in the present case had been lodged after eight days of the filing of the suit---In such circumstances, prima facie, the possibility of mala fide and ulterior motives on the part of the complainant in lodging the present FIR against the accused could not be ruled out---Ad interim pre-arrest bail granted to accused was confirmed accordingly.

Zaheer ud Din Babar, Advocate Supreme Court for Petitioner along with Petitioner.

Waqar A. Sheikh, Advocate Supreme Court for Respondent No.2.

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

2017 S C M R 79

[Supreme Court of Pakistan]

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

MUHAMMAD SHAFIQUE and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos.65-L and 116-L of 2016, decided on 2nd February, 2016.

(Against the orders dated 18.12.2015 and 21.12.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous Nos.15784-B and 25688-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 462-C & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Theft of gas, abetment, criminal misconduct---Bail, grant of---Further inquiry---According to the prosecution itself both the accused and co-accused were not the main perpetrators of the alleged theft of gas and the only allegation levelled against them was in respect of being facilitators of the main perpetrator of the alleged offences---Owner of the premises in issue had already been admitted to post-arrest bail and even the tenant in possession of the relevant premises had been admitted to ad-interim pre-arrest bail and the matter of his confirmation of his ad interim pre- arrest bail was presently pending before the Trial Court---Investigation of the case qua the accused and co-accused had already been finalized and a challan had been submitted and, thus, their continued incarceration was not likely to serve any beneficial purpose---Case against the accused and co-accused called for further inquiry into their guilt---Accused and co-accused were admitted to post-arrest bail accordingly.

Mian Ismat Ullah, Advocate Supreme Court for Petitioners (in Cr. P. 65-L of 2016).

Nazir Ahmed Ghazi, Advocate Supreme Court for Petitioners (in Cr. P. 116-L of 2016).

Muhammad Zakria Sheikh, Deputy Attorney-General for Pakistan and Javed Iqbal, I.O. for the State (in both cases).

2017 S C M R 81

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

GHULAM RASOOL and others---Appellants

Versus

NOOR MUHAMMAD and others---Respondents

Civil Appeal No. 164-L of 2010, decided on 7th September, 2016.

(Against the order dated 13.4.2006 of the Lahore High Court, Multan Bench, Multan passed in C.R. No. 1036 of 2002)

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

----S. 41---Transfer by ostensible owner---Bona fide purchaser, principle of---Essential pre-requisites---Principle of bona fide purchaser as enunciated by S. 41 of the Transfer of Property Act, 1882 was founded upon the principles of equity---Essential ingredients of the said principle were that the transferor was the ostensible owner; that the transfer was made by express or implied consent of the real owner; that the transfer was made for consideration; and that the transferee while acting in good faith had taken reasonable care before entering into such transaction---Said four essential ingredients must co-exist in order for a person to take the benefit of the equitable principle of bona fide purchaser.

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

----S. 41--- Transfer by ostensible owner---Bona fide purchaser---Scope---Error in revenue record---On account of some unintentional or deliberate error committed by the revenue staff in the revenue record which excluded the name of the lawful owner of the property therefrom and the property was shown to be in the name of some other person who was not the owner of the whole or a part thereof, would not by itself deprive and denude the true and actual owner from the title of the property---Therefore, in such a' situation made by the person, who was not the owner, to an alleged bona fide purchaser claiming protection under S. 41 of the Transfer of Property Act, 1882, could not be construed to be made with the express or implied consent of the real owner.

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

----S. 41--- Transfer by ostensible owner---Bona fide purchaser--¬Scope---Joint owners/co-owners of inherited property---Error in revenue record---Due to an error in revenue record which excluded the name of first joint owner of the property and the property was shown to he only in the name of the second joint owner, would not by itself deprive and denude the first joint owner from the title of the property--- Sale of property made by the second joint owner, in such circumstances, to an alleged bona fide purchaser claiming protection under S. 41 of the Transfer of Property Act, 1882, could not be construed to be made with the express or implied consent of the first joint owner---Unauthorized sale to the extent of first joint owner's share in the suit property would be void and the purchaser would not qualify the bona fide purchaser test under S. 41 of Transfer of Property Act, 1882 and, therefore, he could not take up the plea of bona fide purchaser to protect the sale in his favour.

Suit property was inherited by four brothers after the death of their father, and they all became the joint owners of the property. Mutation of inheritance was attested in favour of all four brothers but subsequently on account of some lapse or deliberate error by revenue officials the names of two of the brothers ("plaintiffs") were omitted form the revenue record, and the other two brothers ("defendants") were shown to be the owners of suit property. Defendants sold the suit property, which sale was challenged by the plaintiffs on the ground that sale was unauthorized. Purchaser of suit property claimed that he was a bona fide purchaser in terms of section 41 of the Transfer of Property Act, 1882 and had bought suit property after having carefully examined the revenue record, which only showed the defendants as the owners, and that he had no notice that the plaintiffs were the co-owners and their names had been wrongfully omitted from the revenue record.

Purchaser of suit property had never claimed that the plaintiffs had transferred their share in the joint property in favour of the defendants (other two brothers) by any lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the purchaser had taken reasonable care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by the father of plaintiffs and defendants which devolved upon his legal heirs i.e. four brothers jointly and that all four brothers still continued to be the co-owners of the property; and that the exclusion of plaintiffs' name, from the revenue record was not on account of any legal or authorized transaction or mode, rather from either a human error or because of some tainted reason. Mere omission of plaintiffs' name in the revenue record in no manner could be construed to mean that they had consented either expressly or impliedly for the sale in favour of the purchaser and that the latter took reasonable care in good faith, within the contemplation of section 41 of the Transfer of Property Act, 1882. Unauthorized sale to the extent of plaintiffs' share in the suit property was void and the case of the purchaser did not squarely qualify the test of section 41 and, therefore, he could not take up the plea of bona fide purchaser and the sale could not be protected on such account. Appeal was dismissed accordingly.

Muhammad Kazim Khan, Advocate Supreme Court for Appellants.

Riasat Ali Chaudhry, Advocate Supreme Court and Zaheer-ud¬Din Babar, Advocate Supreme Court for Respondents Nos.1-7, 9-15 and 17-26.

Ex parte for Respondents Nos. 8, 27, 31, 32 and 35.

2017 S C M R 86

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Sh. Azmat Saeed, JJ

Dr. FARHAT ABBAS and others---Appellants

Versus

DR. MEHMOOD-UL-HASSAN and others---Respondents

Civil Appeals Nos. 1525 to 1528 of 2016, decided on 24th October, 2016.

(On appeal from judgment dated 11.11.2015, passed by the Peshawar High Court, Peshawar, in W.Ps. Nos. 2926-P, 3000-P, 2926-P and 3000-P of 2012, respectively)

Regulations for the Appointment of Faculty Professorial Staff/Examiners/Principals/Deans/Administrative Staff in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan, 2011---

----Regs. 12 & 19---Promotion as Associate Professor of Cardiology---Eligibility---Appellant, who had the qualification of FCPS in Medicine was promoted as Associate Professor of Cardiology---Respondents who had qualification of FCPS in Cardiology challenged promotion of appellant by contending that under the law only those Assistant Professors having FCPS in Cardiology could be considered for appointment as Associate Professor of Cardiology, which qualification was not possessed by appellant---Validity---Accumulative reading of Regulations 12 & 19 of the Regulations for the Appointment of Faculty Professorial Staff/Examiners/Principals/Deans/Administrative Staff in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan, 2011 showed that academic qualification for post of Associate Professor of Cardiology, included the Level III qualification in the sub-specialities or General FCPS---Regulation 19 of the laid Regulations clearly provided that if a candidate was qualified for the position of Senior Registrar in General Medicine or General Surgery etc and was a holder of FCPS, MD, MS in General Medicine or General Surgery etc. and attained the post of Assistant Professor in a sub-speciality then no preference would be given to a person, who was holding the FCPS in the requisite field, for the purpose of the appointment to further post including that of Associate Professor---Appellant in terms of Regulation 19, held the requisite qualification, as an Assistant Professor of Cardiology with the requisite experience, hence was entitled to be considered for appointment/promotion as Associate Professor of Cardiology---Record also showed that appellant was senior to the respondents---Office order of appellant's promotion as Associate Professor of Cardiology was valid in law and could not be set aside--- Appeal was allowed accordingly.

Abdul Latif Afridi, Advocate Supreme Court and Khalid Anwar Afridi, Advocate Supreme Court for Appellants (in C.As. 1525 and 1526 of 2016).

Shakeel Ahmed, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (absent) for Appellants (in C.As. 1527 and 1528 of 2016).

Ghulam Nabi Khan, Advocate Supreme Court for Respondent No.1 (in C.As. 1525 and 1526 of 2016).

2017 S C M R 91

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

SULTAN MEHMOOD---Petitioner

Versus

KALEEM ULLAH and others---Respondents

Criminal Petition No. 893-L 2013, decided on 14th January, 2016.

(Against the order dated 28.05.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.1 of 2014 in Criminal Appeal No. 473 of 2014)

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302---Murder---Suspension of sentence and release on bail---Statutory delay in disposal of appeal---Occurrence in the present case had taken place during the night and a collective allegation had been levelled by the prosecution against 6 to 7 persons including the accused regarding firing at the deceased---Medical evidence had shown that the deceased had received only one firearm entry wound on his body which, allegedly stood attributed to 6/7 persons---During investigation accused had been declared to be innocent and his name was placed in column No. 2 of the challan---Nothing had been recovered from the custody of accused during the investigation---All the co-accused persons had been acquitted by the Trial Court and the case against accused was prima facie at par with the acquitted co-accused persons---Accused had remained on bail during his trial and no allegation had been levelled against him regarding any misuse or abuse of the concession of bail---Accused had spent about fourteen months in jail after recording of his conviction by the Trial Court and there was no prospect of an early hearing of his appeal before the High Court---In such circumstances the High Court had rightly suspended the sentence of accused during the pendency of his appeal and had admitted him on bail---Petition for leave to appeal was dismissed accordingly.

Nemo for Petitioner.

2017 S C M R 93

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Faisal Arab, JJ

JAN MUHAMMAD---Petitioner

Versus

The MEMBER (COLONY) and others---Respondents

Civil Petition No. 928-L of 2015, decided on 20th October, 2016.

(On appeal against the judgment dated 19.02.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 193/2013)

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

----S. 30(2)--- Punjab Government Notification No. 5086-69/1683-CL-III dated 1-6-1970---Punjab Government Notification No. 1488-71/1217-CL-III dated 26-4-1971---Proprietary rights in land leased by State---Allotment of alternate State land---Rival claimants---'Grow More Food" scheme---Petitioner was allotted land under the scheme in 1957---After the lease came to an end in 1962 the land was reverted back to the State---Petitioner, in the year 1984, relying on Notification No.5086-69/1683-CL-III dated 1.6.1970 and Notification No. 1488-71/1217-CL-III dated 26-4-1971 applied for grant of alternate land in lieu of the land that was allotted to him in 1957---Petitioner's application was accepted and he was considered eligible for grant of alternate land---Respondent challenged allotment of alternate land to petitioner on the grounds that land which was originally allotted to the petitioner in 1957 was surrendered by him and no longer remained under his cultivation; that thereafter, the same was leased out to the respondent for a period of five years under the scheme, which lease was extended up to 1983, therefore, respondent was eligible for the grant of proprietary rights in alternate land and not the petitioner---Validity---In terms of Notification dated 1.6.1970 bearing No 5086-69/1683-CL-III and Notification dated 26.04.1971 bearing No. 1488-71/1217-CL-III alternate land was to be given only where the terms and conditions on which temporary leases were granted had been fulfilled by the lessee but the allotted lands were situated either within the proximity of a municipality or a town or where it was within one mile of a railway station, or for some reason the allottees were dispossessed by the government and their lands were utilized for some permanent scheme---Only such allottees, in terms of the two said notifications, were to be accommodated in alternate areas with the same rights as they would have exercised in the lands originally allotted to them---Revenue forums below had not examined the present case from the perspective of the applicability of the two said notifications, therefore, it was appropriate to remand the case to the Board of Revenue, which shall decide whether the petitioner or the respondent was entitled to the grant of alternate land in terms of the notifications or the land rightly reverted back to the State---Appeal was allowed accordingly.

Akhtar Masood Khan, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (Absent) for Petitioner.

Razzaq A. Mirza, Additional A.-G. for Respondents Nos. 1 and 2.

M.A. Ghaffar ul Haq, Advocate Supreme Court and Muhammad Anwar Khan, Advocate-on-Record (Absent) for Respondent No.3.

2017 S C M R 98

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Sh. Azmat Saeed, Manzoor Ahmad Malik and Faisal Arab, JJ

MUHAMMAD SATTAR and others---Appellants

Versus

TARIQ JAVAID and others---Respondents

Civil Appeal No. 56 of 2011, C.M.A. No. 6863 of 2014 in Civil Appeal No. 56 of 2011, Civil Appeal No. 462-L of 2009 and Civil Appeal No.11-L of 2013, decided on 11th November, 2016.

(On appeal from judgment dated 30.11.2010, 19.10.2004 and 19.12.2012, passed by the Lahore High Court, Lahore and Lahore High Court, Bahawalpur Bench, in C.R. No. 897 of 2009, R.S.A No.41 of 1997 and C.R. No. 347-D/2006 (BWP), respectively)

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

----Ss. 8 & 9---Agreement not signed by one of the parties---Validity and enforceability of such an agreement---Valid contract could be oral or it may be through exchange of communication between the parties---Once an offer was communicated, the acceptance thereof could be express or implied---Such acceptance of the offer would include accepting the consideration accompanying the offer or acting upon the said bargain---Formal signature of both or either of the parties was not a necessary requirement---All that was required was an offer and acceptance and consideration between the parties---Contracts in general were not required to be reduced into writing (except where otherwise specifically provided by law) and the offer and acceptance could also be implied from the conduct of the parties in terms of sections 8 and 9 of the Contract Act, 1872---Absence of formal signatures did not affect the validity or enforceability of the contract.

Messrs Jamal Jute Baling and Co., Dacca v. Messrs M. Sarkies and Sorts (Sons), Dacca PLD 1971 SC 784; Karachi Gas Dawood Cotton Mills Ltd. PLD 1975 SC 193; Messrs M.A. Khan and Co. through Sole Proprietor Muhammad Ali Khan v. Messrs Pakistan Railways Employees Cooperative Housing Society Ltd. through Principal Officer/Secretary, Karachi 2006 SCMR 721 and Aloka Bose v. Parmatma Devi and others AIR 2009 SC 1527 ref.

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

----S. 22---Discretion as to decreeing specific performance---Scope---Section 22 of the Specific Relief Act, 1877, which dealt with discretion as to granting relief of specific performance, had no bearing on the validity of the contract; it only recognized the discretion vested with the Court to decline the specific performance of an agreement even in the absence of any impediment in such behalf---Section 22 of the Specific Relief Act, 1877 could not be invoked to determine the validity of an agreement.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Bashir Ahmed through L.Rs. and another v. Muhammad Ali through L.Rs. and another 2007 SCMR 1047 and Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 ref.

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

----S. 54---Contract Act (IX of 1872), Ss. 8 & 9---Specific Relief Act (I of 1877), S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Agreement to sell immoveable property not signed by the vendee---Validity and enforceability of such an agreement---Agreement to sell not signed by one of the parties if proved to have been accepted and acted upon would be a valid agreement to sell/contract that was enforceable in law---Existence and validity of the agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence, validity and enforceability in accordance with the Qanun-e-Shahadat Order, 1984, the relevant provisions of the Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto---[Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) held to be contrary to judicial pronouncements of the Supreme Court].

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 held to be contrary to judicial pronouncements of the Supreme Court.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 distinguished.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (absent) for Appellants (in C.A. 56 of 2011).

Moulvi Anwar-ul-Haq, Advocate Supreme Court for Appellants (in C.A. 462-L of 2009).

Mian Allah Nawaz, Senior Advocate Supreme Court for Appellants (in C.A. 11-L of 2013).

Malik Muhammad Kabir, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Respondents Nos. 1 - 4 and 6 - 8 (in C.A. 56 of 2011).

Sardar Muhammad Aslam, Advocate Supreme Court for Respondents (in C.A. 462-L of 2009).

Ch. Aamir Rehman, Advocate Supreme Court for Respondents (in C.A. 11-L of 2013).

2017 S C M R 114

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

EHSAN-UL-HAQ alias SHANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.165-L 2016, decided on 7th March, 2016

(Against the order dated 19.01.2016 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15541-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302, 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Bail, grant of---Further inquiry---Accused had not been nominated in the FIR and during investigation his name had been introduced by way of replacement of another accused person mentioned in the FIR---Perusal of the FIR showed that it was a co-accused who had allegedly fired at and killed the deceased---Admittedly accused had not caused any injury to the deceased---Co-accused, in his statement made before the police, had not attributed any firearm injury to the accused---Investigation of the case had already been finalized and a challan has been submitted, thus, physical custody of the accused was not required for the purposes of investigation---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.

Malik Mushtaq Ahmed, Advocate Supreme Court for Petitioner.

Muhammad Azhar Ch., Advocate Supreme Court for the Complainant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Ashgar, S.I. for the State.

2017 S C M R 116

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Faisal Arab, JJ

WAJID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.990 of 2016, decided on 7th November, 2016.

(On appeal against the order dated 9.9.2016 passed by the Peshawar High Court, Peshawar in Cr. M/B.A. No.1724-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Accused was alleged to have fired at the injured-complainant, while the co-accused was specifically alleged to have fired at the deceased---Plea on behalf of complainant was that accused was not entitled to bail as the accused and co-accused had the common intention to commit murder of deceased---Validity---From the contents of the FIR, it could not be out-rightly said that there was a common intention between the accused and co-accused to commit murder---Prima facie the reason that provoked the incident was the repairing of a common wall---Question as to whether there was common intention between the accused and co-accused to commit murder could only be reached after the evidence in the matter on the record---Injury allegedly caused to the complainant by the accused was reported to be 'ghair jaifa'---Accused could not be kept behind bars for an indefinite period---Accused was admitted to post-arrest bail accordingly.

Hussain Ali, Advocate Supreme Court and Adam Khan, Advocate-on-Record (Absent) for Petitioner.

Zahid Yousaf, Advocate Supreme Court for A.-G. KPK and Zahidullah, SI/IO, PS Badabair for the State.

2017 S C M R 118

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Mushir Alam, JJ

Mian ASGHAR ALI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary (Colonies) BOR, Lahore and others---Respondents

C.R.P. No. 100 of 2016 in C.P. No.2364 of 2015 and C.R.P. No. 101 of 2016 in C.P. No. 2365 of 2015, decided on 29th September, 2016.

(Against the order dated 31.12.2015 passed by this Court in C.Ps. Nos. 2364 and 2365 of 2015)

(a) Appeal/Review---

----Distinction between 'appeal' and 'review'---Appellate jurisdiction was always exercised by a higher court/forum/authority or a level above the court/forum/authority that adjudicated and decided the lis, whereas review jurisdiction armed the very court/forum/authority to correct its own mistake or error that crept in the order or decree and was apparent on the face of record.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan PLD 2010 SC 483 and Jamshoro Joint Venture Ltd. v. Khawaja Muhammad Asif 2014 SCMR 1858 ref.

(b) Administration of justice---

----Power of High Court/Supreme Court to convert and or treat one kind of proceeding into another---Scope---Such power, which was derived from authority to do ex debito justitiae, always existed and was exercised by the Court not only to advance the cause of justice but also to prevent injustice---No fetters or bar could be placed on the High Court and or the Supreme Court to convert and treat one type of proceeding into another and proceed to decide the matter either itself provided it had jurisdiction over the lis that was before it for adjudication or it may remit the lis to the court/forum/authority of competent jurisdiction for decision of the lis on its own merits.

Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Capital Development Authority v. Khuda Bakhsh and 5 others 1994 SCMR 771; Shamsul Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Sindh and another v. Muhammad Ilyas and others 2016 SCMR 189; Engineer Musharaf Shah v. Government of Khyber Paktunkhwa through Chief Secretary and 2 others 2015 PLC (C.S.) 215; The Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32 and Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 ref.

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

----O. XLVII, R. 5---High Court (Lahore) Rules and Orders, Vol. V, Ch. III, R. 3(b)---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeals converted into review application---Bench competent to hear the review application---Order was passed by Single Judge of (Lahore) High Court in constitutional jurisdiction---Intra-court appeals were filed against such order before a Division Bench of the (Lahore) High Court which converted them into a review application---Whether Division Bench was competent to decide the review application in circumstances when the Single Judge was no longer available on the strength of the (Lahore) High Court---Had the Single Judge been available on the strength of the (Lahore) High Court, the Division Bench after the converting intra-court appeals into review application, could have remitted the review application for decision by the same Single Judge in accordance with Rule 5 of Order XLVII, C.P.C.---Since the Single Judge was not available on the strength of the (Lahore) High Court, present case was not covered by Rule 5 of Order XLVII, C.P.C., therefore, in terms of the Rule 3(b) of Chapter 3 of the High Court (Lahore) Rules and Orders, Volume V, it was only the Division Bench that was competent to hear and decide the review application.

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

----S. 114 & O. XLVII---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal converted into review application by the High Court---Objection of respondent that he was not given notice of conversion of Intra-court appeal into review application---Validity---Objection of respondent was of no significance, particularly when he had notice of intra-court appeal and no prejudice was caused or shown to have been caused to him on merits of the case.

Capital Development Authority v. Khuda Bakhsh and 5 others 1994 SCMR 771 ref.

Petitioner in person.

Mudassir Khalid Abbasi, Assistant A.-G., Ch. M. Rafiq, Legal Advisor, Distt. Government, Sahiwal, Abdul Rauf Sindhu, Legal Advisor TMA Sahiwal and Rana M. Yousaf, Tehsildar, Sahiwal for Respondents.

M. Farooq Altaf, Solicitor Punjab on Court's Notice.

2017 S C M R 130

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

NASAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 162-L of 2016, decided on 7th March, 2016.

(Against the order dated 19.1.2016 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15803-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---Lack of motive---Joint role in offence attributed---Initial finding of innocence during investigation---According to the FIR the accused and his co-accused had allegedly been seen by some prosecution witnesses pressing the throat of deceased at the dera of co-accused---FIR itself showed that accused had no motive to kill the deceased but the motive was directed against uncle of the deceased---Place of occurrence was the dera of co-accused whereas the accused did not live at the said place---FIR alleged a joint role of the accused and his co- accused and according to the complainant party's own version the eyewitnesses happened to see the occurrence only per chance---During the initial investigation the accused had been opined to be innocent and his name was placed in column No 2 of the challan but after submission of the challan before the Trial Court a fresh investigation had been conducted and the accused had been opined to be guilty---Case against the accused called for further inquiry into his guilt---Accused was admitted to bail in circumstances.

Akhtar Hussain Bhatti, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Obail Ullah, S.I. for the State.

Complainant in person.

2017 S C M R 132

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

Malik ABID HUSSAIN---Petitioner

Versus

RETURNING OFFICER, WARDS 1 TO 47 MUNICIPAL COMMITTEE and others---Respondents

Civil Petition No. 3499 of 2016, decided on 16th November, 2016.

(On appeal against the order dated 25.10.2016 passed by the Lahore High Court, Multan Bench in Writ Petition No.15172 of 2016)

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

----S. 2(mmm)---Local bodies elections---Reserved seat for 'worker' on Municipal Committee---Eligibility of candidate---Only such person, who was directly engaged in physical work and for his subsistence relied on physical labour or fell within the definition of 'worker' as contained in the Punjab Industrial Relations Act, 2010 qualified to contest election on the reserved seat of 'worker' and not a person who was a businessman or a trader.

Petitioner was one of the candidates on the reserved seat of 'worker' of a Municipal Committee. Respondent, who was also a candidate for the said seat, sought rejection of petitioner's nomination papers on the ground that the petitioner was not a worker as he held a LPG dealership and operated his business from a business concern; that being a businessman, petitioner was a tax payer having a National Tax Number and he had also been elected as President of a LPG Union. Nomination papers of petitioner were rejected by the Appellate authority in view of the contentions raised by the respondent.

Section 2(mmm) of Punjab Local Government Act, 2013 defined 'worker' as someone who was "directly engaged in work or is dependent on personal labour for subsistence living and includes a worker as defined in the Punjab Industrial Relations Act, 2010." Thus only such person, who was directly engaged in physical work and for his subsistence relied on physical labour or fell within the definition of 'worker' as contained in the Punjab Industrial Relations Act, 2010 qualified to contest election on the reserved seat of 'worker' and not a person who was a businessman or a trader.

Muhammad Hussain v. District Returning Officer 2008 SCMR 488 ref.

Record showed that the petitioner was a dealer of LPG and distributed the same from his business concern. He also held the office of President of LPG Union which took care of business of traders who sold LPG gas to consumers from their outlets. As a tax payer, the petitioner had a National Tax Number as well. Provincial Secretary for Industries, confirmed that the petitioner was one of the LPG distributors in the District having a dealership contract. Petitioner did not deny his status as a dealer/distributor of LPG nor the fact that he held position of President of LPG Union. Impugned order of Appellate Authority, whereby nomination papers of petitioner were rejected did not warrant any interference. Petition for leave to appeal was dismissed accordingly.

Dil Muhammad Khan Alizai, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (Absent) for Petitioner.

Nemo for Respondents.

2017 S C M R 135

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Ijaz ul Ahsan, JJ

AZHAR MEHMOOD and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 128, 129 and 130 of 2010, decided on 2nd November, 2016.

(Against the judgment dated 1.4.2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos. 371, 375 and 383 of 2002 and Murder Reference No.608 of 2002)

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

----Ss. 302(b), 398, 460 & 34---Qatl-i-amd, dacoity with murder---Re-appraisal of evidence---Benefit of doubt---Occurrence had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant---Although in the site-plan availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of the case---Accused persons had not been nominated in the FIR wherein it had been mentioned that the offence had been committed by six unknown culprits but later on it had been maintained by the prosecution that the accused persons had been overheard by a witness discussing amongst themselves the commission of offences by them---During the test identification parade accused persons had not been identified with reference to any role played by them in the incident---Witnesses of the test identification parade had appeared before the Trial Court after 14 prosecution witnesses had already made their statements before the Trial Court and on all such occasions the accused persons were physically present in the dock and, thus, the said eye-witnesses had ample opportunities to see the accused persons in the courtroom---In such circumstances test identification of accused persons by said witnesses was unsafe---Weapons recovered from accused persons during the investigation had not matched with the crime-empties secured from the place of occurrence---Medical evidence produced by the prosecution could not point towards any particular culprit---Prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them.

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

----Art. 22--- Test identification parade---Accused persons were identified during the parade but without reference to any role played by them in the incident---Such a test identification parade was of no evidentiary value.

Khadim Hussain v. The State 1985 SCMR 721; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221, Shafqat Mehmood and others v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State_2011 SCMR 563 and Muhammad Fayyaz v. The State 2012 SCMR 522 ref.

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

----Art. 22---Test identification parade---Identification of a culprit before the Trial Court during the trial was 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.

Tanveer Iqbal, Advocate Supreme Court, Niaz Ahmed Rathore, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Cr. A. 128 of 2010).

Niaz Ahmed Rathore, Advocate Supreme Court for Appellants (in Cr. As. 129 and 130 of 2010).

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

2017 S C M R 140

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Maqbool Baqar and Khilji Arif Hussain, JJ

COMMISSIONER INLAND REVENUE (LEGAL DIVISION), LTU, ISLAMABAD---Petitioner

Versus

Messrs GEOFIZYKA KRAKOW PAKISTAN LTD.---Respondent

Civil Petition No. 1361 of 2015, decided on 7th November, 2016.

(Against the judgment dated 16.2.2015 of the Islamabad High Court, Islamabad passed in Tax Reference No.16 of 2005)

Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 24(i) & 163(4)---Convention between the Islamic Republic of Pakistan and the Polish Peoples Republic for the Avoidance of Double Taxation of Income---Foreign company (resident of Poland)---Convention/Treaty for avoidance of double taxation---Preference over domestic income tax law---Respondent-company was a foreign entrepreneur (resident of Poland) and there was a Treaty for Avoidance of Double Taxation between Pakistan and Poland---According to the provisions of S. 24(i) of the Income Tax Ordinance, 1979 such treaties for the avoidance of double taxation had to be given preference and would prevail over the provisions of the income tax law---Non-obstante clause of S. 163(4) of the Income Tax Ordinance, 1979 clearly postulated that such treaties for the avoidance of double taxation would be awarded preference and any tax which could be levied and charged against the respondent-company under the income tax law would be subject thereto---High Court was correct in holding that the tax laws of Pakistan were not applicable to the case of the respondent-company in view of the provisions of the Treaty for Avoidance of Double Taxation for avoidance of double taxation---Petition for leave to appeal was dismissed accordingly.

Babar Bilal, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2017 S C M R 142

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Sardar Tariq Masood, JJ

MUHAMMAD IRSHAD-Petitioner

Versus

ALLAH DITTA and others---Respondents

Criminal Petition No. 576-L of 2013, decided on 14th January, 2016.

(Against the judgment dated 6.5.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.178-J of 2009 and Murder Reference No. 202 of 2009)

Criminal trial---

----Murder---Petition against acquittal---Reappraisal of evidence---Benefit of doubt---Occurrence took place during the night and the natural witnesses of the occurrence, i.e. the wife and children of deceased had not been produced before the trial court as eyewitnesses---Eyewitnesses produced by the prosecution were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence---Person who could have established the motive set up by the prosecution was not produced before the Trial Court---Different motive had been set up by the prosecution during the trial but the said motive had not been confirmed by one of the alleged eye-witnesses---Alleged recovery of weapon from the custody of accused was legally inconsequential because admittedly the crime-empties had been sent to the Forensic Science Laboratory after arrest of accused and after recovery of the weapon from his custody---High Court had rightly extended the benefit of doubt to accused---Petition for leave to appeal was dismissed accordingly.

Nemo for Petitioner.

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

2017 S C M R 144

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Umar Ata Bandial and Faisal Arab, JJ

MUHAMMAD SADIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.93 of 2013, decided on 4601 November, 2016.

(On appeal against the judgment dated 19.11.2012 passed by the High Court of Balochistan, Quetta in Criminal Jail Appeal No.11 of 2012)

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

----S. 302---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Delay in lodging of FIR---Absence of medical report of deceased---Evidence of witnesses doubtful---Deceased was quietly buried on the date of the incident without the incident being reported for the registration of FIR---Matter was only reported to the investigating officer after 28 hours of the occurrence despite the fact that the police station was at a two hours walk from the place of occurrence---Investigating officer could not see for himself that the deceased had sustained firearm injuries, as the deceased had already been buried the previous day---At no stage thereafter the dead body was sought to be exhumed for medical examination---Cause of death of the deceased remained shrouded in mystery---Both prosecution witnesses admitted in their respective cross-examinations that they were not eye-witnesses of the incident---One of the prosecution witness claimed that after hearing gunshots he went outside his house and saw the accused with a Kalashnikov in his hand near the place of occurrence---Such claim, however, was doubtful considering that there was distance of one kilometer between the witnesses' house and the place of occurrence and also because it was early morning in winter season---Prosecution had failed to establish beyond reasonable doubt that the deceased died of gunshot injuries and that it was the accused who had committed his murder---Accused was acquitted of the charge of murder---Appeal was allowed accordingly.

(b) Criminal trial---

----Conviction---Scope---Conviction of an accused could only be based upon concrete evidence, which beyond reasonable doubt led the Court to the conclusion that the accused before it was guilty of committing the reported crime.

(c) Criminal trial---

----Conviction---Abscondence of accused for about ten years---Such abscondence could not be made sole basis for conviction of accused when the other prosecution evidence was doubtful and riddled with contradictions.

Muhammad-Amjad Iqbal Qureshi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Iqbal Khattak, Additional P.-G. Ba1ochistan for the State.

2017 S C M R 148

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

QADDAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.24 of 2011, decided on 8th November, 2016.

(Against the judgment dated 16.5-1010 passed by the High Court of Sindh, Circuit Court, Larkana in Criminal Appeal No.D-59 of 2000 and Confirmation Case No.3 of 2000)

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

----Ss. 302(b), 324, 148, 149 & 449---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, house-trespass in order to commit offence punishable with death---Re-appraisal of evidence---Death sentence reduced to imprisonment for life---Mitigating circumstances---Spur of the moment occurrence---Provocation by complainant party---Motive not proved---According to the FIR as well as the statements of the eye-witnesses made before the Trial Court the accused persons went into the house of complainant peacefully and it was the complainant party which had provoked the accused party at the spot which provocation led to the occurrence---Occurrence might not have taken place at all but for the intervention and provocation of the complainant party---Occurrence in question had developed at the spur of the moment without any premeditation and different members of the accused party as well as of the complainant party embroiled with each other in a developing occurrence---Motive set up by the prosecution had never been put to the accused persons at the time of recording of their statements under S. 342, Cr.P.C.---Alleged recovery of the weapons of offence from the accused persons during the investigation had been discarded by the High Court---Accused persons had already spent more than 16 years in jail in connection with the present case---Sentences of death recorded against accused persons were reduced to imprisonment for life in circumstances---Appeal was disposed of accordingly.

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

----S. 342---Statement of an accused recorded under S. 342, Cr.P.C.---Any piece of evidence not put to an accused person at the time of recording of his statement under S. 342, Cr.P.C. could not be considered against him.

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

----S. 302(b)---Qatl-i-amd---Sentence---Death sentence reduced to imprisonment for life---Grounds---Motive not proved---Failure on the part of the prosecution to establish the motive may react upon a sentence of death.

Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464 and Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658 ref.

Qari Abdul Rasheed, Advocate Supreme Court for Appellants Nos.1 to 4.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant No.5.

Abdullah Rajput, Assistant Prosecutor-General, Sindh Abdul Ghafoor, Advocate-on-Record for the State.

2017 S C M R 152

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Maqbool Baqar and Khilji Arif Hussain, JJ

COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, KARACHI---Appellant

Versus

Syed REHAN AHMED---Respondent

Civil Appeal No.490 of 2009, decided on 23rd November, 2016.

(Against the judgment dated 5.12.2008 of the High Court of Sindh, Karachi passed in Custom Reference Application No.404 of 2007)

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

----S. 194-C(2) & (4)---Customs Appellate Tribunal ("Tribunal")---Chairman or other Member of the Tribunal, authorized by the Chairman, sitting singly and deciding a case---Scope---Chairman or Member of Tribunal could decide a case sitting singly provided that such Member or Chairman was already a member of a Bench constituted by the Chairman under S. 194-C(2) of the Customs Act, 1969 and the case must have been allotted to such Bench---Such Member (or Chairman) could only decide such cases sitting singly where, the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under S. 181 did not exceed five million rupees; OR, in any disputed case, the difference in duty or tax or the duty or tax involved or the amount of fine or penalty involved did not exceed five million rupees---Decision by the Chairman to allow himself or any other member of a Bench to sit singly to dispose cases falling within the ambit of S. 194-C(4) should not be as a matter of course or right, rather should be done upon proper application of mind by the Chairman who shall himself make such decision, and not delegate it to any other officer to undertake as an administrative action---Chairman was obliged to examine the circumstances warranting the decision of letting him or another member of a Bench to dispose of a matter sitting singly before taking such step. [Director, Intelligence and Investigation (Customs and Excise), Faisalabad and another v. Bagh Ali (2010 PTD 1024) held to be good law].

Director, Intelligence and Investigation (Customs and Excise), Faisalabad and another v. Bagh Ali 2010 PTD 1024 held to be good law.

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

----S. 194-C(3) & (3A) [as amended by the Finance Act (IV of 2007) but prior to amendments made by the Finance Act (I of 2009)]---Customs Appellate Tribunal ("Tribunal")---Technical Member---Whether technical member of the Tribunal, sitting singly, had the jurisdiction to decide matters involving questions of law---Amendment brought about by the Finance Act, 2007 which omitted only the explanation to S. 194-C(3A) of Customs Act, 1969 and not the second proviso to S. 194-C(3) was a clear indication that the legislature did not want the Single Member Benches constituted under S. 194-C(3A) to be prevented from hearing cases that involved decisions in relation to a question of law, and the second proviso to S. 194-C(3) was left intact.

(c) Interpretation of statutes---

----Harmonious interpretation--- Statute must be harmoniously interpreted only where there was a conflict between its provisions.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellant.

Ex parte for Respondent.

2017 S C M R 161

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD AKHTAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.20-L of 2016, decided on 7th March, 2016.

(Against the order dated 8.12.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15309-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotic---Bail, refusal of---Accused had been apprehended red-handed while in possession of bhiki (poast) weighing 30 kilograms and a sample of the recovered substance had subsequently been tested positive by the Chemical Examiner---Prosecution witnesses who had witnessed the alleged recovery had no ostensible reason to falsely implicate the accused in a case of present nature---Case against the accused was also hit by (prohibition contained in) section 51 of the Control of Narcotic Substances Act, 1997---Bail was refused accordingly.

Nemo for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and M. Yousaf, S.I. for the State.

2017 S C M R 162

[Supreme Court of Pakistan]

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

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

----S. 242---

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

----Ss. 6(2)(a), (f) & 12---

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

----Ss. 6(1) & 6(2)(a), (f)---

(d) Interpretation of statutes---

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

----S. 6---

(f) Interpretation of statutes---

2017 S C M R 172

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Sh. Azmat Saeed, JJ

C.A. No. 204-L of 2015, C.M.A. No. 61 of 2016 in C.A. No. 204-L of 2015.

(On appeal against the judgment dated 20.03.2015 passed by the Lahore High Court, Lahore in C.Rs. Nos. 1575, 1882 and 1883 of 1999)

PROVINCE OF THE PUNJAB through Collector, Sheikhupura and others---Appellants

Versus

Syed GHAZANFAR ALI SHAH and others---Respondents

AND

C.A. No. 205-L of 2015, C.M.As. Nos. 974, 62 and 117 of 2016 in C.A. No. 205-L of 2015

PROVINCE OF THE PUNJAB through Collector, Sheikhupura and others---Appellants

Versus

IQBAL AHMAD through L.Rs. and others---Respondents

AND

C.A. No. 206-L of 2015, C.M.As. Nos. 63 of 2016 and 1604-L of 2015 in C.A. No. 206-L of 2015

(On appeal against the judgment dated 20.03.2015 passed by the Lahore High Court, Lahore in C.Rs. Nos. 1575, 1882 and 1883 of 1999)

PROVINCE OF THE PUNJAB through Collector, Sheikhupura and others---Appellants

Versus

FAZAL DAD KHAN and others---Respondents

C.A. No. 204-L of 2015, C.M.A. No. 61 of 2016 in C.A. No. 204-L of 2015, C.A. No. 205-L of 2015, C.M.As. Nos. 974, 62 and 117 of 2016 in C.A. No. 205-L of 2015, C.A. No. 206-L of 2015, C.M.As. Nos. 63 of 2016 and 1604-L of 2015 in C.A. No. 206-L of 2015, decided on 25th November, 2016.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 11--- West Pakistan Rehabilitation Settlement Scheme, Para. 4-A---Qanun-e-Shahadat (10 of 1984), Art. 78---Memorandum No.65/795-R(L) dated 27-2-1965 issued by Chief Settlement Commissioner---Evacuee property---Allotment without confirmation---Documents relied upon by allottee not proved in accordance with provisions of Qanun-e-Shahadat, 1984---Purported allotment in favour of respondents was confirmed by the courts below on the basis of extracts from the record of rights, a NOC purportedly issued by an official of the Forest department, a letter written by the Solicitor to the Provincial Government, and a letter written by the Minister for Forestry, Wildlife and Fisheries---None of these documents, however, had been brought on the record in conformity with the mode provided by the Qanun-e-Shahadat, 1984---Chief Settlement Commissioner had issued Memorandum No. 65/795-R(L) dated 27.02.1965 specifying that evacuee lands in possession of the Forest Department whether notified or un-notified should not be allotted against claims under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders---Additional Settlement Commissioner or Forest Department had no power or authority to nullify or neutralize effect of the Memorandum, or read something in it which was not there---Additional Commissioner confirmed allotment of suit land on the undertaking of the respondents and/or on the basis of purported NOC of the Forest Department, when the Memorandum did not provide for either of them---Allotment of suit land in favour of respondents was cancelled in circumstances---Appeal was allowed accordingly.

Muhammad Ayub and others v. The Province of Punjab 1989 SCMR 1033 and Province of Punjab v. Muhammad Mahmood Shah 1991 SCMR 1426 ref.

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

----Chap. V [Arts. 72 to 101]--- Documents brought on record--- Mode of proof---Provisions governing the mode of proof could not be compounded or dispensed with, nor could the Court, which had to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the document had been proved in accordance with law and could, as such, form basis of a judgment.

Messrs Bengal Friends and Co., Dacca v. Messrs Gour Benode Saha and Co., and The Deputy Registrar of Trade Marks, Chittagong PLD 1969 SC 477 and Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 ref.

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

----S. 11 & O.VII, R. 11---Res judicata, principle of---Scope---Since rejection of plaint did not operate as res¬ judicata against the plaintiff in the subsequent suit, it could not operate as such against a party who was a defendant.

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

----S. 8--- Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 11---Suit for possession---Evacuee land, allotment of---Title of allottee to suit land was disputed by Government department---Suit was filed by purported allottee seeking possession of suit land without asking for declaration as to title---Effect---Such a suit for possession without declaration as to title could not be decreed---Appeal was allowed accordingly.

Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 and Sultan Mahmood Shah through L.Rs. and others v. Muhammad Din and 2 others 2005 SCMR 1872 ref.

(e) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 11---Civil Procedure Code (V of 1908), O.I, R. 10---Transfer of Property Act (IV of 1882), S. 41---Impleadment of party in suit---Scope---Evacuee property---Where the original allotment made in favour of the ostensible/purported allottee could not hold the field, any subsequent bona fide purchaser of the same could not be impleaded as party in the suit between the allottee and the Government.

Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027; Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491 and Ejaz Ahmad Khan v. Chahat and others 1987 SCMR 192 ref.

Mrs. Aasma Hamid, Additional A.-G. Punjab, Rana Shamshad Khan, Additional A.-G. Punjab and Rao M. Yousaf Khan, Advocate-on-Record (Absent) for Appellants (in all cases).

M. Muzammil Khan, Senior Advocate Supreme Court for L.Rs. of Respondent No.1 (in C.A. No. 204-L of 2015).

Tahir Naeem, Advocate Supreme Court for Respondents Nos.2 and 3 (in C.A. No. 204-L of 2015).

Nemo for Respondents Nos. 4 - 15 (in C.A. No. 204-L of 2015).

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court for Respondents Nos. 1, 2(b) - 2(d), 3 - 8 (in C.A. 205-L of 2015).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Respondent No. 2(a) (in C.A. 205-L of 2015).

M. Muzammil Khan, Senior Advocate Supreme Court for L.Rs. of Respondent No. 10 (in C.A. 205-L of 2015).

Nemo for Respondents Nos. 2(e) to 2(j), 9, 11-25 (in C.A. 205-L of 2015).

Ch. M. Masood Akhtar Bhan, Advocate Supreme Court for Respondent No. 1 (in C.A. 206-L of 2015).

M. Muzammil Khan, Senior Advocate Supreme Court for L.Rs. of Respondent No.7 (in C.A. 206-L of 2015).

Nemo for Respondents Nos.2-6, 8-15 (in C.A. 206-L of 2015).

Ms. Aasma Hamid, Additional A.-G. Punjab and Rana Shamshad Ahmed, Additional A.-G. Punjab (in C.M.As. 61-63 of 2016) (For bringing on record LRs of Syed Ghazanfar Ali Shah).

Syed Ashiq Raz, Advocate Supreme Court (in C.M.A. 117/16) (Intervenor).

Nemo (in C.M.As. 974 and 1604/L of 2016) (Intervenor).

2017 S C M R 188

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

ASHIQ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 43 of 2011, decided on 14th November, 2016.

(Against the judgment dated 17.06.2009 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 84 of 2004 and Murder Reference No. 126 of 2004)

Penal Code (XLV of 1860)---

----Ss. 302(b), 452 & 34---Qatl-i-amd, house-trespass after preparation for hurt, common intention---Reappraisal of evidence---Death sentence, confirmation of---Desperate nature of accused---Accused used to associate with serious criminals because of which the deceased, who was his relative, rebuked and reprimanded the accused---On the basis of such rebuke and reprimand the accused and co-accused persons not only killed the deceased but also, injured three eye-witnesses of the occurrence---Occurrence took place inside the house of the complainant during midnight, and it had been mentioned in the FIR that a tubelight was switched on at the relevant time and on account of availability of such light the complainant party had been able to identify the accused and co-accused persons---During investigation a tubelight had indeed been secured from the spot by the investigating officer---Firearms and sotas had been used during the occurrence from very close proximity, thus, it would not have been difficult for the complainant party to identify the assailants including the accused---Besides accused was related to the complainant and the deceased and the parties were on visiting terms---Three eye-witnesses of the incident were injured during the occurrence, which established their presence at the spot at the relevant time---Said eye-witnesses made consistent statements vis-a-vis the role played by the accused and medical evidence provided full support to their statements---Medico-legal examinations of the eye-witnesses as well as the post-mortem examination of the deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story---During investigation, the accused remained absent and had, thus, been declared a Proclaimed Offender and such conduct on his part had provided further corroboration to the ocular account---One of the co-accused was convicted and sentenced to life imprisonment for the occurrence, but had not challenged his conviction and sentence before the Supreme Court meaning thereby that he (co-accused) had accepted the case of the prosecution---Accused was a desperate person and conduct displayed by him surely detracted from any sympathy to be extended to him in the matter of his death sentence---Appeal was dismissed accordingly and death sentence awarded to accused was upheld.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 192

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ

AMANULAH---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN and 2 others---Respondents

Civil Petition No. 80-Q of 2010, decided on 25th April, 2014.

(Against the judgment dated 14.4.2010 passed by the Balochistan Service Tribunal Quetta in S.A. No. 21 of 2006)

Balochistan Civil Servants Act (IX of 1974)---

----Ss. 9 & 23---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R. 7---Balochistan Levies Force (B-1 to B-15) Service Rules, 1990---Constitution of Pakistan, Art. 130(5)---Out of turn promotion---Competent authority/Provincial Chief Minister relaxing promotion Rules to award two stages out of turn promotion---Legality--- Nepotism and favoritism--- Scope--- Section 23 of the Balochistan Civil Servants Act, 1974 did not confer any power on the Provincial Government, which could be exercised through the executive authority of the Province, to relax any promotion Rules framed under the said Act---Section 23 of the Balochistan Civil Servants Act, 1974 did empower the Provincial Government to deal with the case of any civil servant in such manner as may appear to it to be just and proper, but such discretion was not unfettered as it was shackled and controlled by the proviso to S. 23, Balochistan Civil Servants Act, 1974, which provides that where the said Act or any rule was applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by the Act or such rule---Provincial Chief Minister/competent authority not only ordered out of turn promotion of the appellant on purported meritorious service, but also waived off requirement of provisions of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, bypassing the District Promotion Committee---Act of extending favour and conferring benefit of promotion was not only against the fundamental rights of promotion of appellant's peers on merits but, was also a glaring example of nepotism and undue favour, which act was also opposed to Oath of office of the Provincial Chief Minister---Out of turn promotion of appellant on directions of the Provincial Chief Minister could not be sustained---Petition for leave to appeal was dismissed accordingly.

Abdul Malik and others v. Government of Balochistan through Secretary, Home and Tribal Department and others 2013 PLC (C.S.) 736; Abdul Shakoor and others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2004 PLC (C.S.) 208 and Muhammad Sadiq and another v. Federal Service Tribunal, Islamabad and others 2003 PLC (C.S.) 1029 ref.

M. Munir Paracha, Advocate Supreme Court for Petitioner.

Shaiq Baluch, A.A.-G. Balochistan for Respondents Nos. 1 - 2.

Hassan Raza Pasha, Advocate Supreme Court for Respondent No.3.

2017 S C M R 197

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Ijaz-ul-Ahsan, JJ

COMMISSIONER OF INCOME TAX---Appellant

Versus

Messrs GILANI TRANSPORT COMPANY---Respondent

Civil Appeal No. 908 of 2009, decided on 21st November, 2016.

(Against order dated 31.10.2008 of High Court of Sindh at Karachi, passed in I.T.A. No. 25 of 2001)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 80-C(4) & 89---Presumptive Tax Regime---Charge of additional tax for failure to pay tax or penalty---Scope---Section 89 of the Income Tax Ordinance, 1979 empowered the department to levy and recover additional tax only in case an assessee failed to pay the whole or any part of tax levied under Chapter VII or the whole or any part of the penalty levied under Chapter XI of the Income Tax Ordinance, 1979.

For the assessment year 1991-92 a sum of Rs.240,260/- was payable by the taxpayer as tax on or before 30.09.1991 in terms of section 80-C(4) of the Income Tax Ordinance, 1979. Amount in question was not paid on its due date. It was paid subsequently over a period of time in instalments. This prompted the Income Tax Department to issue a show cause notice calling upon the taxpayer to explain why additional tax in the sum of Rs.164,823/- may not be recovered from him in terms of section 89 of the Income Tax Ordinance, 1979. Contention of department that since the taxpayer failed to pay tax on or before the due date, the department was justified in resorting to the provisions of section 89 of the Ordinance to levy and recover additional tax.

Section 89 of the Income Tax Ordinance, 1979 empowered the department to levy and recover additional tax only in case an assessee failed to pay the whole or any part of tax levied under Chapter VII or the whole or any part of the penalty levied under Chapter XI of the Income Tax Ordinance, 1979. Tax recoverable from the assessee had neither been levied under Chapter VII nor had any penalty been imposed under Chapter XI of the Ordinance which was sought to be recovered. Tax liability of the assessee arose under section 80-C(4) of the Ordinance which fell under Chapter VIII and was therefore beyond the purview of Section 89 of the Ordinance.

Further, the competent authority had not allowed stay of payment of tax or payment of the same in installments that may have furnished any justification to invoke the provisions of section 89 of the Income Tax Ordinance, 1979 to claim additional tax from the assessee. Show cause notice and order passed by the competent authority, therefore, suffered from lack of jurisdiction.

Baig Spinning Mills Ltd. v. Federation of Pakistan 2005 PTD 1102 ref.

(b) Interpretation of statutes---

----Taxing statute---Charging provisions---Such provisions were to be strictly construed in favour of the subject so that if there was any substantial doubt, it had to be resolved in favour of the taxpayer.

Hyderabad Cantonment Board v. Raj Kumar 2015 SCMR 1385; C.I.T. v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 and Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 ref.

M. Habib Qureshi, Advocate Supreme Court for Appellant.

Ex parte for Respondent.

2017 S C M R 201

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

KHALID MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 97 of 2011, decided on 14th November, 2016.

(Against the judgment dated 03.05.2010 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.229 of 2005/BWP and Murder Reference No.35 of 2005)

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

----Ss. 306, 307 & 308---Qatl-i-amd---Qisas and Ta'zir---Principles---Provisions of Ss. 306, 307 & 308, P.P.C. were relevant only to a case of 'Qisas' and not to that of Ta'zir.

Zahid Rehman v. The State PLD 2015 SC 77 ref.

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

----Ss. 302(b), 324, 337-A(i), 337-D, 337-F(i) & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, jaifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah---Re-appraisal of evidence---Death sentence, confirmation of---Desperate nature of accused---Brutal and merciless nature of murder---Due to strained relations with his wife and her shifting to her brother's house the accused not only killed his wife and her brother but had also injured three other persons---For committing murder the accused not only used a pistol but also a screw-driver with the use of which he had tried to take out the eyes of some of his victims---Record made it abundantly clear that the accused had acted in the matter brutally and mercilessly and that he was a desperate person evoking no sympathy in the matter of his death sentence---Appeal was dismissed accordingly and death sentence awarded to accused was upheld.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mir Afzal Malik, Advocate Supreme Court for the Complainant.

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

2017 S C M R 203

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Mushir Alam, JJ

INTERNATIONAL CENTRE FOR CHEMICAL AND BIOLOGICAL SCIENCE (ICCBS) and another---Petitioners

Versus

Syed EJAZ AHMED SOOFI and others---Respondents

Civil Petition No. 249-K of 2015, decided on 29th August, 2016.

(Against the Order dated 24.2.2015 passed by High Court of Sindh, Karachi in C.P. No. D-1479 of 2011)

University of Karachi Act (XXV of 1972)---

----S. 40-A--- Power to retire an employee before age of superannuation---Scope---Section 40-A of the University of Karachi Act, 1972, provided the competent authority with the power to retire an employee on completion of 25 years of service, before he attained the age of superannuation (i.e. 60 years).

Anwar Mansoor Khan, Advocate Supreme Court for Petitioners.

Respondents in person.

2017 S C M R 206

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Ejaz Afzal Khan, Mushir Alam and Ijaz-ul-Ahsan, JJ

C.R.P. 49/2016, CRL. O.P. No.186, 193 of 2016, C.M.As.1681/2016, 7575/2016, 8132/2016, 8143/2016, 8144/2016, 8146/2016, 8147/2016, 8148/2016 in C.R.P.49/2016 in C.A.184-L/2013 and C.M.A. 8177/2016

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

SHAHID PERVAIZ---Petitioner

Versus

EJAZ AHMAD and others---Respondents

C.R.P.50/2016 in C.A. 184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MANZOOR AHMED and others---Petitioners

Versus

RPO GUJRANWALA and others---Respondents

C.R.P. 51/2016 in C.A. 184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

JAMIL AHMED---Petitioner

Versus

RPO GUJRANWALA and others---Respondents

C.R.P. 52/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MALIK M. SARWAR AWAN and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

C.R.P.83/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

AWAIS MALIK and others---Petitioners

Versus

EJAZ AHMAD and others---Respondents

C.R.P.84/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

Mst. RASHIDA BASHIR and another---Petitioners

Versus

REGIONAL POLICE OFFICER, GUJRANWALA and another---Respondents

C.R.P.85/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

Syed JAMAT ALI BOKHARI and others---Petitioners

Versus

EJAZ AHMED and others---Respondents

C.R.P.89/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MUHAMMAD NAWAZ and others---Petitioners

Versus

CHIEF SECY. GOVT. OF PUNJAB and others---Respondents

C.R.P.91/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

GHULAM DASTGIR and others---Petitioners

Versus

EJAZ AHMAD and others---Respondents

C.R.P.92/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MUHAMMAD AZAM---Petitioner

Versus

EJAZ AHMED and others---Respondents

CRL.R.P.52/2016 in Crl. O.P.89/2011

(On review from the judgment dated 12-06-2013 passed by this Court in Crl. O.P.89/2013)

AWAIS MALIK and others---Petitioners

Versus

CHIEF SECY. PUNJAB and another---Respondents

CRL.O.P.123/2016 in C.P.1446-L/1997

(Contempt proceedings arising out of order of this Court passed in Civil Petition No.1446-L/1997)

AKHTAR UMER HAYAT LALAYKA---Petitioner

Versus

MUSHTAQ AHMED SUKHAIRA, IG PUNJAB, LAHORE---Respondent

CIVIL MSIC. APPLICATION NO.4435/2016

(Application against out of turn promotions in the Province of Punjab)

C.R.P.382/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MUHAMMAD AMI TAIMOOR and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

C.R.P.383/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MAHMOOD-UL-HASSAN RANA and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

C.R.P.454/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

ABRAR AHMAD KHALIL and others---Petitioners

Versus

GOVT. OF PUNJAB and others---Respondents

CRL.R.P.174/2016 in Crl.O.P.89/2011

(On review from the judgment dated 12-06-2013 passed by this Court in Crl.O.P.89/2013)

GHULAM DASTGIR and others---Petitioners

Versus

CHIEF SECRETARY, GOVT. OF PUNJAB and others---Respondents

CRL.O.P.186/2016 in C.A.184-L/2013

(Contempt proceedings arising out of judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MUHAMMAD AZAM---Petitioner

Versus

MUSHTAQ AHMAD SUKHERA and others---Respondents

Crl.O.P.193/2016 in Crl.O.P.86/2016 in C.P.1000-L/2005

(Contempt proceedings arising out of the order dated 4.10.2016 passed by this Court in Crl. O.P.86/2016 in C.P.1000-L/2005)

SHAHID PERVAIZ---Petitioner

Versus

MUSHTAQ AHMED SUKHERA, IG PUNJAB. LAHORE---Respondent

Crl.O.P.195/2016 in C.A.184-L/2013

(Contempt proceedings arising out of the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

IMTIAZ SARWAR---Petitioner

Versus

ZAHID SAEED, CHIEF SECRETARY PUNJAB and others---Respondents

C.R.P.479/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

TAHIR SIKANDAR and others---Petitioners

Versus

THE INSPECTOR GENERAL OF POLICE, PUNJAB and others---Respondents

C.R.P.480/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

MUHAMMAD WASEEM IJAZ---Petitioner

Versus

IGP PUNJAB and others---Respondents

C.R.P.481/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

KHALID MEHMOOD AFZAL and others---Petitioners

Versus

IGP PUNJAB and others---Respondents

C.R.P.482/2016 in C.A.184-L/2013

(On review from the judgment dated 26-01-2016 passed by this Court in C.A. No.184-L/2013)

Malik MUHAMMAD SABIR---Petitioner

Versus

IGP PUNJAB and others---Respondents

Crl.R.P.191/2016 in Crl.O.P.89/2011

(On review from the judgment dated 12-06-2013 passed by this Court in Crl.O.P.89/2013)

SHAHID PERVAIZ, SP---Petitioner

Versus

CHIEF SECRETARY, GOVT. OF PUNJAB and others---Respondents

C.R.P. 49/2016, CRL. O.P. No.186, 193 of 2016, C.M.As.1681/2016, 7575/2016, 8132/2016, 8143/2016, 8144/2016, 8146/2016, 8147/2016, 8148/2016 in C.R.P.49/2016 in C.A.184-L/2013 and C.M.A. 8177/2016, C.R.P. 50/2016 in C.A. 184-L/2013, C.R.P.51/2016 in C.A. 184-L/2013, C.R.P.52/2016 in C.A. 184-L/2013, C.R.P. 83/2016 in C.A. 184-L/2013, C.R.P. 84/2016 in C.A. 184-L/2013, C.R.P. 85/2016 in C.A. 184-L/2013, C.R.P. 89/2016 in C.A. 184-L/2013, C.R.P. 91/2016 in C.A. 184-L/2013, C.R.P. 92/2016 in C.A. 184-L of 2013, Crl. R.P. 52/2016 in Crl. O.P. 89/2011, Crl. O.P. 123/2016 in C.P. 1446-L/1997, Civil Misc. Application No. 4435/2016, C.R.P. 382/2016 in C.A. 184-L/2013, C.R.P. 383/2016 in C.A. 184-L of 2013, C.R.P. 454/2016 in C.A. 184-L/2013, Crl. R.P. 174/2016 in Crl. O.P. 89/2011, Crl. O.P. 186/2016 in C.A. 184-L/2013, Crl. O.P. 193/2016 in Crl. O.P. 86/2016 in C.P. 1000-L/2005, Crl. O.P. 195/2016 in C.A. 184-L/2013, C.R.P. 479/2016 in C.A. 184-L of 2013, C.R.P. 480/2016 in C.A. 184-L/2013, C.R.P. 481/2016 in C.A. 184-L/2013, C.R.P. 482/2016 in C.A. 184-L/2013 and Crl. R.P. 191/2016 in Crl. O.P. 89/2011, decided on 30th December, 2016.

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

----S. 8-A [since omitted]---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 14-A [since omitted]---Sindh Civil Servants Act (XIV of 1973), S. 9-A [since omitted]---Constitution of Pakistan, Arts. 9, 14 & 188---Review of Supreme Court judgment---Out of turn promotion to police personnel on basis of gallantry---Constitutionality and legality---Out of turn promotion was not only against the Constitution, but also against the Injunctions of Islam---Each out of turn promotion necessarily damaged the career of a corresponding deserving officer---Acts of gallantry did not justify out-of-turn promotions as they necessarily lead to impingement of the Fundamental Rights of fellow officers in terms of blocking their smooth progression of careers and impinging their respect and honour---Supreme Court directed the concerned officials and authorities to fix the seniority of all the police officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion---Review petition was dismissed accordingly.

Out of turn promotions were inherently destructive of the rights of other officers who, though senior and entitled to be considered for promotion before the beneficiaries of out of turn promotions, were bypassed as a result of out of turn promotions. Each out of turn promotion necessarily had a corresponding affected officer, who suffered due to such exercise despite being completely blameless. He suffered for no fault of his own when he was bypassed in favour of the beneficiary of such an exercise. Unless he voluntarily waived his rights, in which case the promotion could no longer be described as out of turn, the courts ought not to ignore his rights in matters brought before it for adjudication, irrespective of his presence or absence before the Court in a particular case.

Out of turn promotion was not only against the Constitution, but also against the Injunctions of Islam. Reward or award should be encouraged for meritorious public service but should not be made basis for out of turn promotion.

Muhammad Nadeem Arif v. I.G. of Police 2011 SCMR 408; Ghulam Shabbir v. Muhammad Munir Abbasi PLD 2011 SC 516 and Contempt proceedings against Chief Secretary, Sindh 2013 SCMR 1752 ref.

Brunt of out of turn promotions was always borne by the individual officers who were bypassed. The damaging effect on the careers of deserving officers who suffered due to out of turn promotions continued during service and even after retirement in terms of pensionary benefits. If the beneficiaries of such illegal exercise were reverted to the positions to which they would have been entitled to, on their respective merit and promotion, it would immediately open up vistas of promotion for those deserving officers who were earlier bypassed due to out of turn promotions.

Acts of gallantry, no matter how commendable and appreciated by the society, did not justify out-of-turn promotions as they necessarily lead to impingement of the Fundamental Rights of fellow officers in terms of blocking their smooth progression of careers and impinging their respect and honour as protected under Articles 9 and 14 of the Constitution.

Supreme Court directed the concerned officials and authorities to fix the seniority of all the police officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion. Review petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other courts---Scope---Under Article 189 of the Constitution, the Supreme Court was the court of last resort and laws declared or principles enunciated by it were binding on all subordinate courts and authorities in the country---All the courts and public institutions were bound to follow the principles laid down by the Supreme Court.

Farhat Azeem v. Waheed Rasul PLD 2000 SC 18 ref.

(c) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other courts---Scope---Decisions of the Supreme Court laying down propositions in law were laws binding on all, regardless whether they were party to the proceedings before the Supreme Court or not. [p. 254] D

Messrs Star Diamond Co. v. Union of India PTCL 1988 FC 229 ref.

(d) Constitution of Pakistan---

----Art. 189---Decisions of the Supreme Court---Doctrine of stare decisis, applicability of---Said doctrine was not applicable to the Supreme Court---Supreme Court was not a slave of the doctrine of stare decisis and could change or modify its view with the passage of time.

Hitachi Limited v. Rupali Polyester 1998 SCMR 1618 ref.

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

----S. 8-A [since omitted]---Sindh Civil Servants Act (XIV of 1973), S. 9-A [since omitted]---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 240 & 242---Out of turn promotion---Constitutionality and legality---Similarities between S. 8-A of Punjab Civil Servants Act, 1974 and S. 9-A of Sindh Civil Servants Act, 1973---Both provisions were substantively similar in nature and catered to the same purpose, i.e., out-of-turn promotion, which was unconstitutional and a nullity ab initio; both provisions created a new exception or category of promotion to the existing framework of service rules, in the name of out of turn promotion, which was alien to the concept and scheme of civil service rules, read with Arts. 4, 9, 14, 18, 25, 240 & 242 of the Constitution; both provisions overtly militated against the settled law and principles of promotion based on merit, inter se seniority, annual performance reports etc.; both provisions were discriminatory and violative of the Fundamental Rights of other civil servants who had been affected by out of turn promotions, despite the fact that they may stand a notch up in merit, inter se seniority and even competence from the beneficiary of such promotions.

(f) Vires of statute---

----Rules framed under a statute---Scope---Operation of a statute or any statutory provision was not dependent upon framing of the Rules---Absence of Rules may affect the enforceability or operation of the statute, however, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the Rules under that statute could hardly be relevant.

(g) Vires of statute---

----Benefits conferred under an unconstitutional statute, reversal of---Scope---Once a statute had been declared as being unconstitutional for any reason, all direct benefits continuing to flow from the same were to be stopped---When a statute (whether existing or repealed) was found to be ultra vires the Constitution, the Court was empowered to examine whether any person continued to enjoy the benefits of the ultra vires statute, or whether any state of affairs continued to exist as a result, and if it was found so, the Court was mandated to undo/reverse the same, provided that the benefit or state of affairs in question was not a past and closed transaction.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

(h) Vires of statute---

----Legislative competence---Scope---Legislature enjoyed much leeway and competence in matters of legislation, but every law enacted may not necessarily be tenable on the touchstone of the Constitution---Legislative competence was not enough to make a law valid---Law must also pass the test at the touchstone of constitutionality to be enforceable, failing which it became invalid and unenforceable.

(i) Constitution of Pakistan---

----Art. 184(3)--- Judicial review by the Supreme Court--- Scope---Supreme Court had the jurisdiction under the law and the Constitution to look into the fairness and constitutionality of an enactment and even declare it non est, if it was found to be in conflict with the provisions of the Constitution.

(j) Vires of statute---

----Doctrine of severance---Scope---Normally the courts made utmost efforts to save a piece of legislation from becoming invalid, but in certain cases, the courts also applied, the doctrine of severance to remove a piece of legislation that distorted the scheme of a parent law, or deviated from the provisions of the Constitution.

(k) Past and closed transaction, doctrine of---

----Applicability---Vested rights---Scope---Vested rights were generated only under a valid and uncontested instrument of law---Doctrine of 'past and closed transaction' would apply in cases where rights were created under a valid law, even if such law was allowed to lapse or was removed from the statute book, however, an instrument that was still born or treated by the court as non est was barred from creating any vested rights, let alone being protected under the doctrine of 'past and closed transaction'---Court was duty bound to protect the rights and interests created under a law and also to deny the enjoyment of rights created under an invalid law---Where a party was claiming the protection of rights that were created under a law that failed to pass the test of constitutionality, as determined by the court, it could not take the plea of 'past and closed transaction'.

(l) Constitution of Pakistan---

----Art. 184(3) & Part II, Chap. 1 [Arts. 8 to 28]---Power of court to examine vires of a repealed statute---Scope---When a repealed statute was invoked or raised in support of any claim, right, office or act, before the Supreme Court, the Court would always be entitled to examine its validity on the touchstone of the Constitution and Fundamental Rights.

Whenever any right, obligation, privilege or liability acquired, accrued or incurred under a repealed law was raised, the courts were necessarily required to examine the provisions of the repealed statute. Neither any reason in principle nor any precedent barred the courts from examining the provisions of a repealed statute in a case pending before it on the touchstone of its inconsistency with the provisions of the Constitution or the Fundamental Rights. Any other conclusion would lead to the absurd consequences that while the statute remained on the statute book, the courts could examine its vires but once it was repealed by a subsequent statute, its effect, even if ex facie inconsistent with the Constitution or Fundamental Rights went beyond the realm of judicial review.

(m) Constitution of Pakistan---

----Art. 184(3) & Part II, Chap. 1 [Arts. 8 to 28]---Power of the Supreme Court to examine vires of a (repealed or existing) statute---Scope---Benefits acquired under an unconstitutional statute---'Past and closed transaction', doctrine of---Applicability---Supreme Court could not be refrained from examining the constitutionality of a law merely because of lapse of time or because of the doctrine of 'past and closed transaction'---Consequences of holding otherwise enumerated.

Following were some of the consequences that would arise if the Supreme Court was refrained from examining the constitutionality of a law because of lapse of time or because of the doctrine of 'past and closed transaction':

i. Citizens would lose their legitimate rights to usurpers merely by the lapse of time and under the garb of 'past and closed transaction';

ii. In practical terms, declaring a law void and non est would make no difference as the undue benefits would continue to be enjoyed by the undeserving persons, under the garb of 'past and closed transaction', and at the cost of deserving persons;

iii. The aims of justice would be defeated at the hands of a mechanical force of time; in other words, a mere operation of time would upstage the operation of law;

iv. The Supreme Court may come to lose its inherent jurisdiction to review a previous judgment, or any aspect of it, which may have remained hidden in the procedural or technical folds or escaped the testing at the altar of constitutional law;

v. If allowed to be hampered by procedural niceties, the Supreme Court, or High Courts, may find it difficult to exercise their discretionary powers to render justice to the victims of an invalid law or of a law that had been declared void ab initio by the Supreme Court;

vi. Annulling a law on constitutional grounds and yet protecting the rights created there-under would create an absurd situation, requiring the courts to enforce the provisions of substantive/constitutional laws, without disturbing the principle of 'past and closed transaction';

vii. The blind application of the principle of 'past and closed transaction' may also lead to defeat the very intent of legislature, in addition to causing hardship cases;

viii. Upholding a prima facie unconstitutional provision merely on the grounds of 'past and closed transaction' would subjugate the rules of judicious construction to a mindless adherence to temporal considerations, whereas the very concepts of retrospectivity and prospectivity of laws were rooted in the golden tenets of equity and fairness, not in the mechanical passage of time.

(n) Constitution of Pakistan---

----Art. 189---Obiter dictum of the Supreme Court---Scope---Due to the position of the Supreme Court in the hierarchy of courts, even its obiter dictum enjoyed a highly respected position as if it contained a definite expression of the Court's view on a legal principle, or the meaning of law.

(o) Constitution of Pakistan---

----Art. 27(1)---Safeguard against discrimination in service---Scope---Ambit of Art. 27(1) of the Constitution was confined only to initial appointments and not the appointments by way of promotion, therefore, to stretch it any further would contort or destroy the very spirit of the said Article.

(p) Constitution of Pakistan---

----Art. 184(3)---Statute---Declaration of unconstitutionality by the Supreme Court---Effect---Law which was declared by the Supreme Court as un-constitutional from the date of its inception could not be treated as being so from a date when it was omitted or repealed (by the Legislature).

(q) (Police) Sports Policy, 1982---

----Cl. VI(b)(5)---Punjab Civil Servants Act (VIII of 1974), S. 8---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 10---Accelerated promotions in police on sports basis---Constitutionality and legality---Promotions of police officers were to be fixed/decided on the basis of the required standards provided in the service rules---Accelerated promotions could not be accorded on the basis of an officer's performance in a sports competition---Policy to the extent of accelerated promotions on sports basis was not sustainable, being violative of the service laws and the provisions of the Constitution.

Accelerated promotions in terms of Clause VI(b)(5) of the Sports Policy, 1982 were in conflict with the provisions of Punjab Civil Servants Act, 1974, and the rules framed thereunder. No justification existed to allow the police officers to enjoy accelerated promotion for sports activities, when out of turn promotions granted on basis of a statute for proven gallantry were held to be ultra vires the provisions of the Constitution. Besides, promoting sports at the cost of professionalism within the police force would lead to ominous consequences. Efficient police officers would be demoralized if they were superseded by their junior colleagues, which in turn would also affect the overall performance of police in maintaining law and order. Policy to the extent of accelerated promotions on sports basis was not sustainable, being violative of the service laws and the provisions of the Constitution. Review petition was dismissed accordingly.

(r) Constitution of Pakistan---

----Arts. 184(3) & 199 & Pt. II, Chap. 1 [Arts. 8 to 28]---Judicial review of Government policy---Scope---Policy making was the domain of the Executive and the courts normally did not interfere in such matters, but when a policy is violative of the Fundament Rights of individuals, the courts were obliged to examine such policy in judicial review.

Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad PLD 2015 SC 6; Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Iqbal Zafar Jhagra and Senator Rukhsana Zuberi v. Federation of Pakistan 2014 PTD 243; OGRA through Secretary v. Midway II, CNG Station 2014 SCMR 220; Watan Party v. Federation of Pakistan PLD 2013 SC 167; Alleged Corruption in Rental Power Plants and others 2012 SCMR 773; Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455; Executive District Officer (Revenue), District Khushab at Jauharabad v. Ijaz Hussain 2011 SCMR 1864; Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr 2011 SCMR 1621; Punjab Public Service Commission v. Mst. Aisha Nawaz 2011 SCMR 1602; Suo Motu Case No. 10 of 2007 PLD 2008 SC 673 and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad PLD 2006 SC 697 ref.

Ashtar Ausaf, Attorney General for Pakistan and M. Waqar Rana, Addl. Attorney General for Federal Government.

Barrister Khalid Waheed, Assistant AG Punjab for Government of Punjab.

Ayaz Swati, Addl. AG for Government of Balochistan.

Shehyar Kazi, Addl. AG Sindh for Government of Sindh.

Mian Arshad Jan, Addl. AG for Government of Khyber Pakhtunkhwa.

Mian Abdul Rauf, AG for ICT.

Syed Ali Zafar, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court and M. Akram Sheikh, Senior Advocate Supreme Court (for Respondent No.6 in CRP.85/16) (in C.R.P. 49/2016, C.R.P. 191/16 and C.R.P. 85 of 2016).

Kh. Haris Ahmed, Senior Advocate Supreme Court (in Crl. R.P. 52/2016 and C.R.P. 83 of 2016).

Ms. Asma Jahangir, Advocate Supreme Court (in C.R.P. 89 of 2016).

Hamid Khan, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record (in C.R.P. 92/2016, 382-383, 480/2016 and Crl. O. 186 of 2016).

Talat Farooq Sheikh, Advocate Supreme Court and Khalid-Ibn-i-Aziz, Advocate Supreme Court (in C.R.P. 50 and 52/2016, 454/2016 and C.M.A. 132 of 2016).

Nemo (in C.R.P.89/16, 91/16, Crl. RP.174/16, Crl. O.P. 195/16, C.R.P.479/16, 84/16 and C.M.A.4435 of 2016)

Jamil Ahmed in person (in C.R.P. 51 of 2016).

Malik M. Qayyum, Senior Advocate Supreme Court (in Crl. O.P.123/16).

Rashid A. Rizvi, Senior Advocate Supreme Court, Qausain Faisal, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record (in Crl. O.P.193/2016).

Nemo (in C.R.P.481/2016).

S. A. Mahmood Sadozai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in C.R.P. 482 of 2016).

Nemo (in C.M.A.7575/2016 in C.P.49/2016).

Baleegh-uz-Zaman Jawad, Advocate Supreme Court (in C.M.A.8177/2016 in C.R.P.Nil/2016)

Mian Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record (in C.M.As.8132, 8146, 8147/2016)

Nemo (in C.M.As.8143-8144/2016)

Ch. Akhtar Ali, Advocate-on-Record/Advocate Supreme Court (in C.M.A.8148/16 in C.R.P.49/2016)

Kamran Adil, AAIG (Legal), Sajjad Hussain, SP, Shaban Mehmood, DSP Legal, M. Jamshed, SC RPO Office DGK and Mushtaq Hussain, SSP for the Department.

2017 S C M R 274

[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), Ss. 365, 34, 148 & 149---

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

----S. 497---Penal Code (XLV of 1860), Ss. 365, 34, 148 & 149---

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

----S. 497(5)---

2017 S C M R 279

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

QURBAN ALI---Petitioner

Versus

The STATE and others---Respondents

Crl. Petition No. 814-L of 2016, decided on 23rd August, 2016.

(Against the order of the Lahore High Court, Lahore dated 13.05.2016 passed in Crl. Misc. No. 3063-B of 2016)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Incident occurred due to previous enmity between the parties---Although three persons from the complainant side lost their lives, yet two persons from the accused side also sustained injuries---Accused had not been attributed any overt act during the occurrence except the role of raising 'lalkara'---Trial Court in such circumstances had to determine, after recording pro and contra evidence, whether the accused was vicariously liable for the acts of his co-accused---Case against accused was one of further enquiry---Accused was an old man and was behind bars since about 15 months---Accused was allowed bail accordingly.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Bail, grant of---Criminal antecedents of accused---Relevance---List of different criminal cases registered against the accused and his co-accused persons was placed on record by the complainant---Supreme Court observed that it was only seized of the present bail application filed by the accused and the effect/impact of the previous criminal record against accused and his co-accused was not relevant for disposing of the present bail petition---Accused was granted bail accordingly.

Agha Abul Hassan Arif, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Naseer ud Din Khan Nayyar, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for the Complainant.

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

2017 S C M R 281

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Umar Ata Bandial and Ijaz ul Ahsan, JJ

GHULAM HUSSAIN and others---Petitioners

Versus

ADMINISTRATOR THAL DEVELOPMENT AUTHORITY---Respondent

Civil Petition No. 269-L of 2013, decided on 16th September, 2016.

(Against order dated 21.01.2013 of Lahore High Court, Multan Bench, Multan, passed in C.Ms. Nos. 1537-C and 1538-C of 2011 in R.S.A. No.96 of 1974)

Civil Procedure Code (V of 1908)---

----S. 100---Limitation Act (IX of 1908), S. 5---Regular second appeal dismissed for non-prosecution, restoration of --- Condonation of delay---Scope---When the regular second appeal of petitioners was dismissed for non-prosecution on 24-3-2005, the petitioners had knowledge of the same and as such moved an application on 26-03-2005 for its restoration---Affidavit attached with the said application was not attested, thus, the same was returned by the office granting two days' time for removal of the office objection---Petitioners took six years to remove the said office objection by filing an application along with another application for condonation of delay---Perusal of said application of condonation of delay showed that it neither explained the delay of six years in filing the application for restoration of the regular second appeal nor did it disclose any sufficient cause for condonation of such delay---High Court was therefore justified in dismissing applications filed by the petitioners by holding that the petitioners were neither serious nor vigilant in prosecuting the regular second appeal---Petition for leave to appeal was dismissed accordingly.

Malik M. Latif Khokhar, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for Petitioner.

Nemo for Respondent No.1.

2017 S C M R 283

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Faisal Arab and Khilji Arif Hussain, JJ

The STATE/ANF---Appellant

Versus

MUHAMMAD ARSHAD---Respondent

Criminal Appeal No. 21-K of 2016, decided on 8th December, 2016.

(On appeal against the judgment dated 10.11.2015 passed by the High Court of Sindh, Karachi in Criminal Appeal No.175/2014)

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

----S. 9(b)---Smuggling of heroin abroad---Reappraisal of evidence---Accused had allegedly swallowed 50 capsules containing 550 grams of heroin and attempted to smuggle the same aboard through a flight---Trial Court convicted and sentenced the accused to five years' imprisonment and fined him Rs. 50,000---High Court acquitted the accused on appeal---Validity---Admittedly, accused was arrested from the airport and was then immediately taken to nearby hospital where X-Ray of his stomach was taken which depicted foreign bodies---X-Ray as well as the receipt of the hospital had been produced in evidence---After the X-Ray, the accused was taken to another hospital where the doctor administered the requisite medicines so that whatever was in accused's stomach was flushed out---At all times custody of accused was secured through police personnel---Entire process, right from the arrest of the accused and administration of necessary medicine to facilitate quick excretion, had not been questioned by the defence in the cross-examination of the prosecution witnesses---Recovered capsules after excretion were immediately presented to the concerned doctor and then were sealed and sent to the Chemical Examiner---Upon chemical examination it was confirmed that the capsules contained 550 grams of heroin powder---In the presence of deposition of the doctor, it mattered not whether the accused excreted the capsules on the bed or in the toilet or whether the capsules were washed or not as such details were of no relevance---Ample evidence was available on record to find the accused guilty---Trial Court had rightly convicted the accused---Appeal was allowed accordingly and judgment of High Court was set aside and that of Trial Court was restored.

(b) Criminal trial---

----Conviction---Scope---Where no proper investigation was conducted, but the material that came before the court was sufficient to connect the accused with the commission of crime, the accused could still be convicted, notwithstanding minor omissions that had no bearing on the outcome of the case.

Habib Ahmed, Advocate Supreme Court for Appellant.

Raja Aftab, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent along with Respondent in person.

2017 S C M R 287

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Khilji Arif Hussain, JJ

Dr. FAISAL MASUD and another---Petitioners

Versus

UMER RASOOL, DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and another---Respondents

Civil Petitions Nos. 582-L and 583-L of 2014, decided on 2nd August, 2016.

(Against the order dated 11.3.2014 of the Lahore High Court, Lahore passed in I.C.As. Nos. 723 and 724 of 2013)

Constitution of Pakistan---

----Art. 23---Right to property---Scope---Alternate plot, allotment of---Alternate plot to be equal in 'size' and equal in 'location'---Petitioners owned plots on a 40 meter (wide) road in a housing scheme belonging to the Development Authority---Development Authority transferred said plots to another housing society in view of a compromise agreement, with the undertaking that the petitioners/affectees would be duly compensated by allotment of equivalent plots elsewhere in the Development Authority's housing scheme---Subsequently petitioners were allotted alternate plots on a 9 meter (wide) road---Legality---When a promise was made with the petitioners that they shall be compensated for plots equal in size obviously, that also meant equal in 'location'---Plot located at a 9 meter road and that located at a 40 meter road could not be compared as equal---Development Authority was obliged to allot available plots to the petitioners that were on a 40 feet (wide) road---Only such allotment would satisfy the rule of Fundamental Right to property as enshrined by Art. 23 of the Constitution---Supreme Court directed the Development Authority to transfer and complete all the transfer formalities of available plots on 40 feet (wide) road including the delivery of possession respectively in favour of the petitioners within a period of two months---Appeal was allowed accordingly.

Ch. Muhammad Yaqoob Sindhu, Advocate Supreme Court for Petitioners (in both cases).

Barrister Khurram Raza Chaudhry, Advocate Supreme Court for Respondents (in both cases).

2017 S C M R 290

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

MOHSIN---Petitioner

Versus

The STATE and others---Respondents

Crl. Petition No. 780-L of 2016, decided on 22nd August, 2016.

(Against the order of the Lahore High Court, Lahore, dated 20.05.2016 passed in Crl. Misc. No. 5531-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 377 & 367-A---Sodomy---Bail, grant of---Further inquiry---According to the FIR the victim boy went along with accused and co-accused on his own volition to attend a function---Medico-legal certificate of the victim showed that the doctor had found the anus of the victim to be normal---Moreover, in his statement recorded under S. 164, Cr.P.C. before the Magistrate, the victim had not specifically named the accused, rather he made a general allegation against accused and co-accused without naming any one of them, nor he had given the names of the witnesses as alleged in the FIR---Case of the accused became one of further enquiry in such circumstances---Co-accused had already been granted bail---Accused was behind the bars since about 6 months and no useful purpose would be served by keeping him incarcerated for an indefinite period---Accused was granted bail accordingly.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Complainant in person.

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

2017 S C M R 292

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Ijaz ul Ahsan, JJ

USMAN DAR and others---Appellants

Versus

Khawaja MUHAMMAD ASIF and others---Respondents

Civil Appeals Nos. 823 and 947 of 2014, decided on 10th November, 2016.

(Against judgment dated 25.04.2014 of Election Tribunal, Lahore, passed in Election Petition No.344 of 2013)

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

----Ss. 70, 78 & 79---Election petition---Right of petitioner to produce evidence, closure of---Legality---After his examination-in-chief the petitioner failed to enter the witness box to face cross-examination on several dates of hearing in blatant disregard of specific, categorical and repeated directions and warnings issued by the Election Tribunal---Petitioner also failed to pay the costs imposed by the Election Tribunal in accordance with law---Fact that the petitioner did not present himself for cross-examination, his examination-in-chief did not meet the threshold of legal evidence and was rightly struck out by the Election Tribunal---Appeal was dismissed accordingly.

Commentaries on the Law of Evidence by Muhammad Munir, J and Wigmore on Evidence 3rd Edition ref.

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

----Ss. 55, 78 & 79---Contents of election petition---Corrupt practices---Proof---Lack of particular details of corrupt practices---Vague, generalized and non-specific allegations---Effect---Election petition read with the statements of witnesses did not fulfil the mandatory requirements of S. 55 of Representation of the People Act, 1976, in so far as it failed to give detailed and complete particulars of the alleged corrupt or illegal practices or other illegal acts alleged to have been committed by the returned candidate---Further, a full statement of the names of the persons accused of corrupt or illegal practices or illegal acts and the date and place of commission of such acts or practices were not available on record---Affidavits of all 10 witnesses of the petitioner were almost completely identical, in that only the names of the deponents varied between them---Sequence of events at nine different polling stations being exactly the same, down to the small details, was not a tenable fact---Petitioner did not produce any elector/voter who may have been harassed, intimidated or bribed by the returned candidate as alleged in the petition---No independent evidence of any nature, documentary or otherwise, was produced to substantiate the allegation that returned candidate provided transportation facilities throughout his constituency to bring voters to the polling stations and take them back---No transporter was summoned or examined, nor were their particulars or those of the vehicles allegedly used by them furnished at any stage---To substantiate allegations of connivance and bias on part of election staff not a single member of the election staff, including the Polling Officer or Returning Officer, was summoned or put in the witness stand---Documentary evidence, which could have helped to substantiate the allegations of violation of election laws in counting of votes and compilation of result, made in the election petition, was conspicuously absent---Allegations made in the election petition were vague, generalized and non-specific, and did not meet the requirements specified in S. 55 of the Representation of the People Act, 1976---Election petition had been rightly dismissed by the Election Tribunal---Appeal was dismissed accordingly with the observation that in a democratic state, free, fair and transparent elections were sine qua non for the success of the system; that the will of the electorate had to be respected and unless there was irrefutable evidence to show that the election was systematically rigged by a candidate through the use of illegal or corrupt practices, the will of the people could not and should not be interfered with.

Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91 and Hafeezuddin v. Abdul Razzaq PLD 2016 SC 79 ref.

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

----S. 70---Grounds for declaring election as a whole void---Scope---Election material damaged while in custody of Election Commission or an agency designated by it---Once the election material was delivered to the Election Commission or an agency designated by it for safe custody after completion of the election process, consolidation and announcement of the result, the requirements of Representation of the People Act, 1976 stood fulfilled---Any subsequent damage to the election record could not be made basis to set aside election of returned candidate without clear and irrefutable evidence connecting the returned candidate to the damage caused to the election record.

After consolidation and announcement of the result, the Returning Officer transmitted the election material, contained in 227 bags, to the District Accounts Office/Treasury for safe custody. The said officer duly received the said material and issued an acknowledgment in writing. Subsequently the National Database and Registration Authority (NADRA) found that seals of certain bags containing election material were broken, while some bags were damaged or missing. If the election material was not properly safeguarded by the concerned officer, the legal consequences for such dereliction could and should follow against those who were found negligent, careless or deficient in performance of their duties. However once the election material had been delivered to the Election Commission or an agency designated by it for safe custody after completion of the election process, consolidation and announcement of the result, the requirements of Representation of the People Act, 1976 stood fulfilled. Any subsequent events could not have materially affected the result of the election so as to form the basis to set aside the election as a whole. Further, without clear and irrefutable evidence connecting the returned candidate to the damage allegedly caused to the record, he could not be held responsible or proceeded against.

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

----S. 70---Grounds for declaring election as a whole void---Scope---Counterfoils verification report---Report prepared by National Database and Registration Authority (NADRA) showed that a number of thumb impressions could not be verified on account of their poor quality---Said report provided no indication as to in whose favour such votes were cast, therefore it would neither be just nor proper to exclude all such votes from the total number of votes cast in favour of the returned candidate in the absence of evidence that all or how many such votes were cast in his favour---Certain votes which could not be verified by the Automatic Fingerprint Identification System (AFIS) owing to bad quality of finger prints, were verified through Computerized National Identity Card Numbers, as such, said votes could not be categorized as invalid votes---Even if all the invalid votes were excluded from the final count of returned candidate, he would still remain ahead of the petitioner by more than 15000 votes---Negligence or inefficiency on the part of the election staff did not occur on account of any act of returned candidate---Further, the same neither materially affected the result of the election nor substantially contributed to the petitioner's loss---Election petition had been rightly dismissed by the Election Tribunal---Appeal was dismissed accordingly.

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

----S. 78---Corrupt practices, proof of---Standard of proof---Election petitioner who alleged the use of illegal or corrupt practice or rigging had to establish his case on the same standard of proof as a criminal case i.e. beyond reasonable doubt.

Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91 ref.

Dr. Babar Awan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No. 823 of 2014).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Appellants (in C.A. No. 947 of 2014).

Farooq H. Naik, Senior Advocate Supreme Court, Rashdeen Nawaz Kasuri, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in both cases).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 4 and 7 (in C.A. No. 823 of 2014).

Saqib Jamal, Manager Legal, NADRA and Muhammad Irshad, D.G., ECP on Court's Notice.

2017 S C M R 307

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

ISHFAQ AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 294 of 2011 and Criminal Miscellaneous Application No. 357 of 2014

(Against the judgment dated 20.11.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 755 of 1999)

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

----Ss. 302(b), 324, 337-D & 337-F(iii)---Qatl-i-amd, attempt to qatl-i-amd, Jaifah and Ghayr-Jaifah Mutalahimah---Leave to appeal was granted by Supreme Court only to consider as to whether High Court should have ordered concurrent running of all sentences of imprisonment passed against accused or not.

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

----Ss. 35 & 382-B---Penal Code (XLV of 1860), Ss. 302(b), 324, 337-D & 337-F(iii)---Qatl-i-amd, attempt of qatl-i-amd, Jaifah and Ghayr-Jaifah Mutalahimah--- Concurrent sentences--- Pre-conviction imprisonment---Principle---Accused was variously convicted by Trial Court for all offences maximum sentence was death on two counts on the charge under S. 302(b), P.P.C.---High Court on appeal, converted sentences of death passed against accused on both counts of charge under S. 302(b), P.P.C. to imprisonment for life on two counts, whereas remaining convictions and sentences were maintained---High Court did not declare the sentences to run concurrently---Validity---Ordinarily more than one sentences of imprisonment for life passed against accused were to be ordered to run concurrently to each other---Supreme Court directed that all sentences of imprisonment passed against accused would run concurrently to each other---Supreme Court also directed to extend benefit of S. 382-B, Cr.P.C. to accused---Appeal was disposed of accordingly.

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

Qazi Misbahul Hassan, Advocate Supreme Court for Appellant.

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

2017 S C M R 309

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Faez Isa, JJ

BASHARAT ALI KHAN---Petitioner

Versus

MUHAMMAD AKBAR---Respondent

Civil Review Petition No. 147 of 2016, decided on 3rd October, 2016.

(For review of the judgment of this Court dated 1.12.2015 in C.P. 247/2011)

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

----S. 13(3)---Suit for pre-emption---Notice of 'Talb-i-Ishhad'---Mandatory requirement---Section 13(3) of the Punjab Pre-emption Act, 1991 specified unequivocally that 'Talb-i-Ishhad' shall be made by written notice, attested by two truthful witnesses, and made under registered cover acknowledgment due---Only situation in which the Punjab Pre-emption Act, 1991, did not require the sending of notice by registered cover acknowledgment due was when the post office facility was not available to a pre-emptor [Proviso to section 13(3)]---Secondly, according to case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admitted that he had received notice of 'Talb-i-Ishhad'--- In all other cases, service of notice of 'Talb-i-Ishhad' upon a vendee must be established by the proof of each of the prescribed elements of the notice of such Talb---Prescribed elements of the service of a 'Talb-i-Ishhad' notice were specific statutory requirements for the proof of service of notice of such Talb which demand had been construed to be a mandatory obligation of a pre-emptor---Where any of the elements of the prescribed mode of service of 'Talb-i-Ishhad' was not proven by a pre-emptor, he dishonoured his mandatory obligation and consequently, his pre-emption suit must fail.

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

----S. 13(3)---Suit for pre-emption---Notice of 'Talb-i-Ishhad'---Pre-emptor had failed to aver in his plaint that notice of 'Talb-i-Ishhad' under registered cover was sent along with an acknowledgment due request, therefore, unless permitted by the Trial Court, pre-emptor could not have produced any evidence on the point of notice under registered cover posted with acknowledgment due---Acknowledgment due card was not produced on record by the pre-emptor nor was the postman, who may have delivered the notice, called to the witness box---According to the pleadings and also the evidence on record, the pre-emptor had not discharged his burden to prove the service of notice of 'Talb-i-Ishhad' as required under S. 13(3) of the Punjab Pre-emption Act, 1991---Pre-emptor thereby failed to satisfy his mandatory obligation under the law---Such default was fatal for his pre-emption suit--- Review petition was allowed accordingly.

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

----S. 13(3)--- Suit for pre-emption--- Notice of 'Talb-i-Ishhad'---Omission by the vendee to specify in his written statement before the Trial Court the exact nature of pre-emptor's default to comply with the requirements of notice of 'Talb-i-Ishhad'---Whether such omission estopped the vendee from claiming a right to be served with a notice of 'Talb-i-Ishhad' in accordance with the requirements of law---Requirement of Talbs as prescribed in the Punjab Pre-emption Act, 1991 enforced the substantive principles of Islamic Law on the subject of pre-emption---Specified features of the Talbs envisaged by the Punjab Pre-emption Act, 1991, were mandatory because of their statutory intent and as requirements of Islamic Law---Various steps prescribed in S. 13 of the Punjab Pre-emption Act, 1991, for the performance of Talbs implemented the public policy of the law to exclude delay and vexatious claims for the benefit of vendees as a class in pre-emption suits---Statutorily prescribed mode of service of 'Talb-i-Ishhad', thus, could not be waived by a party---Consequently, the failure by the vendee to highlight an obvious deficiency in the performance of 'Talb-i-Ishhad' by the pre-emptor did not debar the vendee from pointing out the same at any stage of the proceedings to the court.

(d) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Grounds---Omission whereby the (Supreme) Court had over-looked important material that would alter the decision in the case constituted a fit ground for the grant of review under Art. 188 of the Constitution.

Muhammad Zubair v. Muhammad Zia 2004 SCMR 1077; Suba v. Fatima Bibi 1996 SCMR 158 and Fida Hussain v. The Secretary, Kashmir Affiars PLD 1995 SC 701 ref.

Sh. Zamir Hussain, Advocate Supreme Court and S. Rifaqat Hussain Shah, Advocate-on-Record (Absent) for Petitioner.

Agha Muhammad Ali Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2017 S C M R 316

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Faisal Arab, JJ

Syed HAKEEM SHAH (DECEASED) through LRs and others---Petitioners

Versus

MUHAMMAD IDREES and others---Respondents

Civil Petition No. 160-K of 2016, decided on 21st December, 2016.

(On appeal against the judgment dated 26.11.2015 passed by the High Court of Sindh, Karachi in R.A. No. 98/2007)

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

----S. 53-A---Specific Relief Act (I of 1877), S. 12---Right in favour of transferee---Scope---Existing right not extinguished by any period of limitation---Transferee filed a suit for specific performance against the transferor claiming that subject property was sold and possession delivered to him for a certain sale consideration, but the sublease could not be registered in his name as there was a ban on such transfer---Plea of transferor that the suit was barred by time as the same was filed in the year 1993 for a transaction that took place in 1980---Validity---When the sale consideration was totally paid and possession was also delivered to transferee and only on account of the ban on the registration of leases transfer document was not executed, the transferee was well within his right to seek execution of the sublease in his favour when the ban was lifted and when transferor unlawfully entered into sale transaction with a third party for the subject property---Section 53-A of Transfer of Property Act, 1882 in itself created a right in favour of transferee to retain possession---Such right came into existence when transferor put the transferee in possession in part performance of the contract---Right created by S. 53-A in favour of the transferee in possession could be termed as an equitable title which he held in the property---Where the transferee continued to enjoy a right then the statute of limitation could not take away such a right as the law of limitation was not meant to take away an existing right---Right created under S. 53-A of Transfer of Property Act, 1882 was an existing right and was not extinguished by any length of time---Law of limitation did not come in the way of a transferee in possession when he as a plaintiff, filed his own suit to preserve his right to retain possession that was granted to him under S. 53-A of the Transfer of Property Act, 1882---Suit for specific performance filed by the transferee, in the present case, could not be held to be barred by time---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Nawaz Magsi v. Illahi Bux 2010 CLC 407 ref.

Jamil Ahmed Virk, Advocate Supreme Court for Petitioners.

Mrs. Abida Parveen Channar, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for CBA.

2017 S C M R 321

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Haji MUHAMMAD NAWAZ---Petitioner

Versus

SAMINA KANWAL and others---Respondents

Civil Petition No. 126-L of 2014, decided on 8th August, 2016.

(On appeal from judgment of Lahore High Court, Lahore dated 20.12.2013, passed in W.P. No. 33208 of 2013)

Per Anwar Zaheer Jamali, CJ

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

----S. 5, Sched. & S. 13(3)---Decree for return of dowry articles, execution of---Return of gold ornaments or in the alternative their 'prevailing market price'---Trial Court passed decree for return of dowry articles and after a period of about ten years during execution proceedings of said decree it was held that gold ornaments shall be paid either in the shape of golden ornaments or in alternative price thereof as per market value of the gold at the date of its payment---Plea of husband that executing court went beyond the terms of the decree by ordering the payment of price of golden ornaments at the prevalent market rate---Validity---Grant of relief regarding payment of price of golden ornaments at the prevalent market rate, in case the golden ornaments were not returned, was fully justified and it could not be said that it amounted to going beyond the terms of decree by the executing court---[Per Umar Ata Bandial, J; agreeing: Husband had not delivered the decretal dowry articles to the wife---Under S.13(3) of the Family Courts Act, 1964, the decree was liable to be implemented within 30 days, however, in the present case even after the lapse of 12 years of passing of the decree, the husband had not deposited a single rupee with the Executing Court towards the adjustment of the said decree---Having been expressed in the alternative, the decree did not become a decree for money simpliciter for the amount stated therein, because the price of dowry articles fixed in the alternative by the decree under execution represented their market value as on the date of decree---Such market value of the decretal dowry articles could not remain static endlessly, therefore the alternative monetary direction in the decree could not remain fixed after lapse of reasonable time---Delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection could not under the principles of equity, justice and fair play be allowed to defeat the decree under execution by the husband's refusal to both deliver the dowry articles and also to pay their corresponding market value as on the date of payment---Petition for leave to appeal was dismissed accordingly.

Ayesha Shaheen v. Khalid Mehmood 2013 SCMR 1049 ref.

Per Umar Ata Bandial, J

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

----S. 3---Proceedings of the Family Court, whether as a Trial Court or an executing court were governed by the general principles of equity, justice and fair play.

Ch. Irshad Ullah Chattha, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2017 S C M R 325

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

SOHAIL WAQAR alias SOHAILA---Petitioner

Versus

The STATE and others---Respondents

Crl. Petition No. 790-L of 2016, decided on 22nd August, 2016.

(Against the order of the Lahore High Court, Lahore dated 26.04.2016 passed in Crl. Misc. No. 1498-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Case of double murder---Accused had been specifically nominated in the FIR and specific role of firing at one of the deceased had been attributed to him---Police had found the accused guilty during the investigation---Accused remained fugitive from law for a considerable period of time---Deeper appreciation of evidence was not desirable at the bail stage, thus it was for the Trial Court to make a determination on the conflict between the ocular account and the medical evidence pointed out by the complainant---Offence alleged fell within the prohibitory clause of S. 497, Cr.P.C., which disentitled the accused for grant of bail---Bail was refused accordingly.

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Petitioner.

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

2017 S C M R 326

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Land Settlement (Punjab)---

2017 S C M R 330

[Supreme Court of Pakistan]

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

Mst. ZARINA KHAN---Petitioner

Versus

Mst. FARZANA SHOAIB---Respondent

Civil Petition No. 270-K of 2016, decided on 25th November, 2016.

(On appeal from the judgment of the Sindh High Court, Karachi dated 11.03.2016 passed in F.R.A. No. 30/2014)

(a) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(9)---Ejectment application---Striking off defence of tenant---Scope---Denial of relationship of landlady and tenant---Landlady and tenant entered into an 'agreement to sell' and a 'tenancy agreement' at the same time with regards to rented premises---Under the terms of the agreement to sell a sum was deposited by the tenant in the landlady's account as advance while the balance sale consideration was to be paid by a specific date---Under the tenancy agreement the tenant was inducted in the rented premises as tenant for a period of six months---Subsequently tenant stopped paying rent and also failed to pay the balance sale consideration to get the conveyance deed registered, but retained the possession of the rented premises---Rent Controller directed the tenant to tentatively deposit future rent and also to deposit the arrears of rent---Upon failure to comply with such direction, the landlady filed an application under S. 17(9) of the Cantonment Rent Restriction Act, 1963 for striking off defence of the tenant---Said application was allowed by the Rent Controller and the tenant was, directed to vacate the rented premises and hand over its possession to the landlady---Validity---Possession of rented premise was handed over to the tenant under a written tenancy agreement for a period of six months and tenant also paid advance rent---Mere expiry of six months tenancy period, in such circumstances, had not ipso facto terminated the relationship of landlady and tenant between the parties, as even after the expiry of such period, tenant's status as regards possession of rented premises remained that of the tenant---As long as the agreement to sell was not specifically performed between the parties or enforced through court proceedings, tenant's status as regards possession of the rented premises remained that of a tenant---Such legal position also found support from the terms of the agreement to sell---Rent Controller was, thus, fully justified in ordering striking off defence of the tenant under S. 17(9) of the Cantonments Rent Restriction Act, 1963, due to admitted non-compliance---Further a civil suit for specific performance of agreement to sell separately filed by the tenant was pending, wherein tenant was directed to deposit the balance sale consideration amount in terms of the agreement to sell, but there too the tenant had failed to comply with such direction---Rent Controller was not required to have first framed the issue of relationship of landlady and tenant in such circumstances before ordering the tenant to vacate the rented premises---Ejectment order passed by Rent Controller was maintained---Appeal was allowed accordingly.

(b) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17---Ejectment application---Denial of relationship of landlord and tenant---Framing of issue---Scope---When a person inducted in the rented premises subsequently denied his/her status as tenant, it was not a rule of thumb that the Rent Controller was bound to first frame point for determination/issue to such effect and decide it before passing a rent order to secure the interest of the landlord during the pendency of such proceedings.

Moin Azhar Siddiqui, Advocate Supreme Court for Petitioner.

M. Umer Lakhani, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2017 S C M R 335

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Tariq Parvez, JJ

ABDUL NABI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 59 of 2011, decided on 28th November, 2016.

(Against the judgment dated 31.05.2010 passed by the High Court of Sindh, Circuit Court, Larkana in Criminal Jail Appeal No.D-34 of 2002)

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

----Ss.302(a) & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 10(4)---Qatl-i-amd, act of terrorism, zina-bil-jabar---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Accused and his juvenile co-accused were alleged to have gang raped a seven year old girl ("victim") which resulted in the latter's death---Anti-Terrorism Court convicted the accused under S.302(a), P.P.C., S. 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S. 7(a) of Anti-Terrorism Act, 1997 and sentenced him to death---Validity---Present case was not a case of "terrorism" but a private offence committed in secrecy---Design and purpose required for an act of terrorism were non-existent and apparently there was no intention on part of accused to create a sense of fear or insecurity in the public at large---Conviction of accused under S. 7(a) of Anti-Terrorism Act, 1997 was, thus, not justified---Accused had not made any confession about his guilt before the Trial Court, thus, present case attracted S. 302(b), P.P.C. and not S. 302(a), P.P.C.---Co-accused had already been acquitted by the juvenile court, therefore, present case was not one of gang-rape, and, therefore conviction of accused under S. 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not sustainable and had to be substituted by S. 10(3) of the said Ordinance---Medical evidence showed that intention of accused was not to murder the victim but to commit rape with her---Cause of death of victim was not rape or asphyxia but shock and pressure on neck of victim which might have been occasioned because of an attempt made by the accused to silence the victim---Doubts in case of prosecution may not be sufficient to acquit the accused but the same could be considered towards exercising caution in the matter of death sentence awarded to accused---Conviction and sentence of accused under S. 7(a) of Anti-Terrorism Act, 1997 were set aside, the conviction of accused for the offence under S. 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was converted into conviction under S. 10(3) of the said Ordinance, and conviction for the offence under S. 302(a), P.P.C. was converted into conviction under S. 302(b), P.P.C., and as a result death sentence awarded to accused was reduced to imprisonment for life---Appeal was disposed of accordingly.

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

----S. 302(a)--- Qatl-i-amd--- Offence under S. 302(a), P.P.C. was attracted when a confession was made by an accused person before the court trying him for the relevant offence.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Abdullah Rajpoot, Assistant Prosecutor-General, Sindh for the State.

2017 S C M R 339

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Faisal Arab and Ijaz ul Ahsan, JJ

COLLECTOR OF CUSTOMS APPRAISEMENT, COLLECTORATE, CUSTOMS HOUSE, KARACHI---Appellant

Versus

Messrs GUL REHMAN, PROPRIETOR MESSRS G. KIN ENTERPRISES, GHAZALI STREET, NASIR ROAD, SIALKOT---Respondent

Civil Appeal No. 450 of 2010, decided on 25th November, 2016.

(Against the order dated 18.3.2010 of the High Court of Sindh at Karachi passed in C.P. No. D-777/2008)

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

----Ss. 19A & 33(1), proviso---Customs duty, refund of---Importer seeking refund of customs duty and penalty paid by it on the basis of an order-in-original, which was subsequently set aside by Collector (Appeals)---Customs department refused to refund the amount by contending that the importer had already passed on the incidence of duty onto the end consumers, therefore, in terms of proviso to S. 33(1) of the Customs Act, 1969, the importer was not entitled to a refund---Legality---Language of S. 33(1) of the Customs Act 1969 made it clear that refund in terms thereof was to be allowed only where/if customs duty had been paid as a result of some inadvertence, error or misconstruction, which was not the position in the present case---Importer right from the beginning had agitated that the declaration made by it was correct and only 14% customs duty was applicable, whereas stance of the customs department was that imported goods attracted 25% customs duty---No inadvertence, error or misconstruction was involved in the declaration by the importer---Issue was conclusively resolved by the Collector (Appeals) in favour of the importer---Holistic reading of S. 33 of the Customs Act, 1969, clarified that where a refund became due as a result of any decision or judgment passed by a customs officer, Appellate Tribunal etc., the proviso to S. 33(1) would not be applicable, meaning thereby that the refund had to be made notwithstanding the fact that the incidence of customs duty had been passed onto the customer and therefore S. 19A of the said Act would not be attracted---Appeal filed by Customs department was dismissed accordingly.

(b) Interpretation of statutes---

----'Proviso' to a provision---Scope and purpose---Generally a proviso was an exception to or qualified the main provision of law to which it was attached---Proviso was to be strictly construed and it applied only to the particular provision to which it was appended---Proviso was limited to the provision which immediately precedes it---Purpose of a proviso was to qualify or modify the scope or ambit of the matter dealt with in the main provision, and its effect was restricted to the particular situation specified in the proviso itself---Before a proviso could have any application, the section or provision itself must apply.

Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560; Interpretation of Statutes (11th Ed.), N.S. Bindra and K.E.S.C. Progressive Workers' Union through its Chairman and others v. K.E.S.C. Labour Union through its General Secretary and others 1991 SCMR 888 ref.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellant.

Azhar Maqbool Shah, Advocate Supreme Court and Ahsan Hameed Lilla, Advocate Supreme Court for Respondent.

2017 S C M R 344

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Sardar Tariq Masood and Faisal Arab, JJ

SARDAR BIBI and another---Appellants

Versus

MUNIR AHMED and others---Respondents

Criminal Appeals Nos. 402 and 403 of 2013, decided on 29th November, 2016.

(On appeal against the judgment dated 15.06.2009 passed by Lahore High Court, Lahore in Crl. A. No. 615 of 2003)

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Benefit of doubt---Prosecution alleged that sufficient light of bulbs was available at the spot of occurrence but during investigation, no bulbs were taken into possession by the investigating officer---Identification of the assailants became doubtful in such eventuality---Complainant's house was at a distance of 3 acres from the place of occurrence whereas the house of one of the eye-witnesses was at the distance of 1-1/2 mile from the place of occurrence, therefore, their presence at the scene was a sheer chance because at such odd hour of the night they were supposed to be present in their residences which were far away from the place of occurrence---Witnesses of the ocular account were also closely related to the deceased and were chance witnesses---Other witnesses of the ocular account in their statements before the court claimed that they were sleeping on the roof top of the cattle shed of the complainant, however site plan totally negated such version---No specification of firearm weapons were given in the FIR or in the statement under S. 161, Cr.P.C., however for the first time during trial, some accused persons were shown to be armed with a pistol and a rifle---Such willful and dishonest improvement was made by the witnesses in order to bring the prosecution case in line with the medical evidence---Accused and co-accused had no motive or reason to commit murder of the deceased persons and the asserted motive had not been proved---Although occurrence took place at 2:00 a.m. and police station was at a distance of 9 kilometer but report had not been lodged at the police station rather at the spot at about 6:00 a.m. which gave inference that FIR had been lodged after deliberation and consultation---Subsequent statement of complainant in the police station after the occurrence further confirmed the deliberation and consultation on the part of complainant and the police---According to prosecution, the matter was reported at 6:00 a.m. but postmortem examination on the dead body was conducted at 1:00 p.m. i.e. after 7 hours of the lodging of FIR, which fact raised suspicion regarding the registration of the FIR at the given time---Defence was unable to cross-examine the investigation officer through whom all the facts and circumstances favoring the accused and co-accused persons could have been brought on the record---In the absence of any independent corroboration, the accused and co-accused persons were acquitted of the charge by extending them benefit of doubt---Appeal was disposed of accordingly.

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

----S. 302(b)---Qatl-i-amd---Witnesses, evidence of---Improvements and omissions made by witnesses to bring case of prosecution in line with the medical evidence--- Such dishonest and deliberate improvements and omissions made the witnesses unreliable and not trustworthy.

Amir Zaman v. Mahboob and others 1985 SCMR 685; Akhtar Ali's case 2008 SCMR 6; Khalid Javed's case 2003 SCMR 149; Mohammad Shafique Ahmad v. The State PLD 1981 SC 472; Syed Saeed Mohammad Shah and another v. The State 1993 SCMR 550 and Mohammad Saleem v. Mohammad Azam 2011 SCMR 474 ref.

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

----S. 302(b)---Qatl-i-amd---Evidence of eye-witnesses, reliance upon---Scope---When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration to the extent of such other accused.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Sarfraz alias Sappi v. The State 2000 SCMR 1758; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Irfan Ali v. The State 2015 SCMR 840; Shahbaz v. The State 2016 SCMR 1763 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon from accused---Evidentiary value---When in the FIR no specific weapon was shown in the hands of the accused; no crime empty was recovered from the place of occurrence; and no positive report of Forensic Science Laboratory was available regarding matching of any crime empty with the allegedly recovered weapon, then the recovery of weapon from accused was inconsequential and could not be considered corroborative piece of evidence---Appeal was disposed of accordingly.

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

----S. 302(b)---Qatl-i-amd---Recovery of hatchet (toka) from accused---Evidentiary value---When recovery of hatchet was effected from house of accused after about one month of occurrence, and the house was collectively inhabited by many persons, including co-accused persons, it could not be said that the recovery was made from the exclusive knowledge and possession of the accused---Accused could not be expected to keep the hatchet stained with blood as souvenir despite having ample opportunity to destroy or at least wash the said weapon---No reliance could be placed on such recovery as corroborative piece of evidence---Appeal was disposed of accordingly.

Ghulam Mustafa Kandwal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Crl. A. No. 402 of 2013).

Mrs. Bushra Qamar, Advocate Supreme Court and Mrs. Tasneem Ameen, Advocate-on-Record (Absent) for Appellants (in Crl. A. No.403 of 2013).

Mrs. Bushra Qamar, Advocate Supreme Court and Mrs. Tasneem Ameen, Advocate-on-Record (Absent) for Respondents (in Crl. A. No. 402 of 2013).

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

2017 S C M R 353

[Supreme Court of Pakistan]

Present: Faisal Arab and Khilji Arif Hussain, JJ

IQBAL HUSSAIN---Appellant

Versus

GENERAL MANAGER SOUTHERN TELECOM REGION-II and others---Respondents

Civil Appeal No.157-K of 2015, decided on 15th August, 2016.

(On appeal against the judgment dated 27.04.2015 passed by the Federal Service Tribunal, Ialamabad in Misc. Petition No.36/2015 in Appeal No. 240(K)CE/2004)

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

----S. 35---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Employees of Pakistan Telegraph and Telephone 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---Such employees did not remain civil servants upon their transfer to the Corporation in the first instance and then the Company, however their terms and conditions of service were statutorily protected---For any violation of their terms or conditions of service such employees could invoke the constitutional jurisdiction of the High Court under Art. 199 of the Constitution but not that of the Federal Service Tribunal.

PTCL v. Masood Ahmed Bhatti 2016 SCMR 1362 ref.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 distinguished.

Sanaullah Noor Ghouri, Advocate Supreme Court for Appellant.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.1-6.

2017 S C M R 356

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MUHAMMAD NAEEM AKHTAR---Appellant

Versus

MANAGING DIRECTOR WATER AND SANITATION AGENCY LDA, LAHORE and others---Respondents

Civil Appeal No. 328-L of 2009 and C.M.A. No. 06-L of 2011, decided on 29th November, 2016.

(On appeal from the judgment of the Lahore High Court, Lahore dated 22.12.2008 passed in W.P. No. 15703 of 2000)

Civil service---

----Inefficiency---Major penalty---Dispensation of regular enquiry---Legality---Fact-finding enquiry did not accuse the appellant personally for committing misappropriation---Allegation against all three accused persons was of inefficiency and misconduct for failing to abide by the departmental rules on storage of scrap stock---Major penalty of reduction in pay to one lower stage in time scale had been imposed on the appellant without an opportunity to demonstrate that the responsibility for the alleged inefficiency was shared and he should not be singled out---Enhancement of penalty to dismissal from service attributed malice and concealment of pilferage to the appellant, which were altogether new charges regarding which a regular inquiry was necessary and could not be dispensed with---Failure by the appellant to object against the dispensation of regular enquiry could not bestow legality/validity upon an administrative action that was deficient in meeting the legal standards of fairness and propriety in disciplinary proceedings---Appellant was apparently punished for misappropriating property of department but without charging him with the same or confronting him with the adverse material sustaining the allegation---Supreme Court observed that it would be lawful, appropriate and fair that a regular enquiry was conducted to the extent of responsibility of the appellant for his alleged misconduct, and if culpable, the lawful penalty that may be imposed on him---Supreme Court set aside the major penalty of dismissal from service imposed on the appellant and remanded his case to the department for holding regular enquiry after giving him full opportunity of representation in accordance with law.

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

Ihsanul Haq Chaudhry, Senior Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents Nos.1 - 3.

2017 S C M R 359

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Maqbool Baqar and Khilji Arif Hussain, JJ

Dr. EHSAN-UL-HAQ KHAN and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 825, 826, 1020 and 1021 of 2015, decided on 30th November, 2016.

(Against judgment dated 12.5.2015 of the Federal Service Tribunal, Islamabad passed in Service Appeal No.983(R)CS/15, 984(R)CS/15, 442(P)CS/15)

Civil Servants Act (LXXI of 1973)---

----S. 8(4)---Civil Servants (Seniority) Rules, 1993, R. 3, Proviso (3)---Seniority---Scope---Indolence and delay in challenging seniority list---Respondents and appellant, were selected by Federal Public Service Commission as Veterinary Officers (BS-17) in the year 1990, and were so appointed the same year---Federal Public Service Commission as per merit placed respondents senior to appellant, however, in the seniority list, issued by the department subsequently, the order of seniority was altered and respondents were placed junior to appellant---On the basis of the said seniority list, appellant was promoted to BS-18 in the year 1996---Admittedly, the seniority list, whereby the seniority assigned by Federal Public Service Commission to respondents was altered by ranking appellant senior to respondents, was upon circulation, duly signed by respondents without any protest---Respondents challenged seniority list and promotion of appellant to BS-18 before the Service Tribunal, three years after the appellant had been promoted---Tribunal through its judgment though gave directions to rectify the seniority list but declined to pass any order regarding the promotion of appellant to BS-18---Respondents felt content with the said order and did not pursue their further relief regarding the promotion of appellant to BS-18---During the pendency of respondents' appeal before the Tribunal, two direct inductees were appointed in BS-18, however, neither were they impleaded in the appeal nor was any relief sought against them by respondents---In the examination held for the post to which direct inductees had been appointed, the respondents also participated but failed---Respondents never challenged the appointment of the direct inductees and it was at least about seven years after the said appointment, that respondents sought seniority over direct inductees, also, which in the facts and circumstances of the case, they were not entitled to as direct inductees were appointed in BS-18 about seven years prior to the promotion of respondents in the said cadre, and had in fact failed in their attempt for their appointment along with the direct inductees---In terms of proviso (3) of R. 3 of the Civil Servants (Seniority) Rules, 1993, respondents, being senior to appellant, were, upon promotion to BS-18, entitled to their original seniority but having remained indolent in the matter and not having challenged the change in the seniority list for more than three years, and further having remained satisfied with the judgment of the Service Tribunal and by not challenging the same, had contributed to the creation of an anomalous situation---Furthermore, the Tribunal's judgment, whereby it declined relief of promotion to respondents from the date the appellant was promoted to BS-18, operated as res-judicata in respect of the said issue---Supreme Court directed that the seniority of the respondents, appellant and direct inductees should be assigned in the order of their promotions/appointments in BPS-18---Appeal was disposed of accordingly.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 825 and 826 of 2015).

Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. 1020 of 2015).

Ishtiaq Ahmed Raja, Advocate Supreme Court for Appellants (in C.A. 1021 of 2015).

Syed Nayab Hussain Gardezi, Advocate Supreme Court and Qari Abdul Rasheed, Advocate-on-Record for Respondents Nos. 1 and 2.

2017 S C M R 364

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Ijaz ul Ahsan, JJ

MUHAMMAD SARFRAZ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 221-L of 2013, decided on 2nd August, 2016.

(Against the judgment dated 28.06.2010 passed by the Lahore High Court, Lahore in Criminal Revision No. 511 of 2009 and Criminal Appeal No. 1343 of 2009)

Penal Code (XLV of 1860)---

----Ss. 335 & 336---Itlaf-i-salahiyyat-i-udw---Reappraisal of evidence---Injury to eye---Partial loss of vision---Whether such injury attracted conviction and sentence under S. 335 read with S. 336, P.P.C.---Accused had caused an injury on an eye of the victim with an iron rod---Medical evidence including opinion rendered by a Medical Board as well as by an Ophthalmologist showed that there was a partial loss of vision in one eye of the victim, which partial loss of vision was permanent and could not be cured through surgery---Such injury to the victim did attract the provisions of S. 335, P.P.C. and, thus, the conviction and sentence of the accused recorded by the Trial Court for an offence under S. 335, P.P.C. read with S. 336, P.P.C. was not open to any legitimate exception---Appeal was dismissed accordingly.

Malik Riaz Khalid Awan, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Appellant.

2017 S C M R 366

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MUHAMMAD TANVIR---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 420-L of 2016, decided on 23rd June, 2016.

(Against the order of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 17.02.2016 passed in Crl. Misc. No. 03-B of 2016/BWP)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376, 511 & 451---Rape, house trespass in order to commit offence punishable with imprisonment---Bail, grant of---Further inquiry---FIR was lodged after more than two days of the alleged occurrence---Medical examination of the complainant-victim was conducted after a delay of about three days---DNA test report was also negative---Co-accused had been declared innocent by the police---Case against the accused in such circumstances called for further inquiry within the ambit of S. 497(2), Cr.P.C.---Accused was behind bars since about seven months and no useful purpose would be served by keeping him behind bars for an indefinite period---Bail was granted accordingly.

Sardar Muhammad Ramzan, Advocate Supreme Court for Petitioner.

Rana Abdul Majeed, Additional P.-G. and Imran, ASI for the State.

2017 S C M R 367

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

MUHAMMAD IQBAL and others---Appellants

Versus

Mst. BASEERAT and others---Respondents

Civil Appeal No. 727-L of 2009, decided on 24th August, 2016.

(Against the judgment dated 14.7.2009 of the Lahore High Court, Lahore passed in C.R. No. 1761 of 2000)

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

----S. 54---Registration Act (XVI of 1908), Ss.17 & 49---Immoveable property---Unregistered agreement to sell---Such an agreement would not confer any title upon the vendee in the immovable property.

Khalid Ikram Khatana, Advocate Supreme Court for Appellants.

Sh. Naveed Shehryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Respondent No.1.

2017 S C M R 369

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Sh. Azmat Saeed, JJ

SUO MOTU ACTION REGARDING ELIGIBILITY OF CHAIRMAN AND MEMBERS OF SINDH PUBLIC SERVICE COMMISSION AND OTHERS: In the matter of

Suo Motu Case No. 18 of 2016, C.M.As. Nos. 7067, 7587, 8495-8498 of 2016 in S.M.C. No. 18 of 2016 and C.M.A. No. 8198 of 2016 in C.M.A. No. 7067 of 2016 in S.M.C. No. 18 of 2016, decided on 3rd January, 2017.

(Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission and others)

Sindh Public Service Commission Act (XI of 1989)---

----S. 3--- Constitution of Pakistan, Arts. 184(3) & 242(1)---Appointment of Chairman and Members of the Sindh Public Service Commission---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ("Commission")---Guidelines for criteria for appointment to the office of Chairman and Members of the Commission laid down by the Supreme Court---Chairman/Members of the Commission, which was a constitutional body, needed to be selected from amongst noble individuals possessing incomparable competence, exalted calibre, unblemished track record, impeccable integrity and unquestionable impartiality---Chairman/ Members should be persons who could be entrusted with the responsibility of selecting the most deserving candidates, who would be holding key positions in the public sector---Discretion of the competent authority in making appointments to the Commission should be structured through rules, which needed to be framed by the Government in terms of S. 10 of the Sindh Public Service Commission Act, 1989 ("the Act")---Said rules needed to be framed in a manner where the selection to the posts of Chairman and Members should be transparent and confined to the persons who enjoyed high standards of integrity and honesty---Said rules should further provide that the proposed appointee had a clean service record without any adverse entry in his P.E.Rs. throughout his career---High-powered permanent committee should examine the service profiles of the Chairman and Members to be selected under S. 3(3) of the Act and the qualifying standards provided therein---Likewise, the high-powered committee should also scrutinize the eminence of the persons in the private sector before their selection as Members in consonance with the terms used in S.3(4) of the Act---Said guidelines should be made the basic criteria for appointment to the office of Chairman and Members of the Commission---Supreme Court directed the Provincial Government to immediately take steps to frame rules under the Act and thereafter appoint the Chairman and Members of the Commission against vacancies---Order accordingly.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 ref.

Zameer Hussain Ghumro, AG Sindh and Ghulam Ali Brahmai, Additional Secretary, Services, Sindh for Government of Sindh.

Farooq H. Naek, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Chairman and Members of SPSC.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Saindad Khan Solangi, Ghulam Shabbir Shaikh and Muhammad Hanif Pathan.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants (in C.M.A. No. 7587 of 2016).

Nemo for Respondents (in C.M.As. Nos. 7067, 8495 to 8498 of 2016).

2017 S C M R 376

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

MERAJ DIN and another---Appellants

Versus

MUHAMMAD SHARIF and another---Respondents

Civil Appeal No. 540-L of 2009, decided on 5th January, 2017.

(Against the judgment dated 8.9.2004 of the Lahore High Court, Lahore passed in C.R. No. 727 of 2003)

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

----S. 21---Limitation Act (IX of 1908), First Sched., Art. 10---Suit for pre-emption filed under the Punjab Pre-emption Act, 1913---Limitation period---Scope---Article 10 of First Schedule to the Limitation Act, 1908 was bifurcated into two parts; where the purchaser took physical possession of the property; 'or', where the instrument of sale had been registered---'First part' dealt with cases where the sale had taken place and possession of the sold property had been delivered to the vendee pursuant thereto---Period of limitation in such situation would start from the date of delivery of physical possession---In order to successfully defend a suit for pre-emption falling in this category on the point of limitation (if it was beyond one year from the date of delivery of possession) the defendant-vendee would be obliged to prove that physical possession was delivered prior to the date of execution of the registered sale deed---Object behind this was that the prospective pre-emptor must have notice that the sale had taken place and possession of the property had been delivered or that there was a change of possession---Such factum of possession, was considered to be adequate notice of sale of the property, enabling the pre-emptor to file a suit---Positive evidence had to be led by the vendee where the date of delivery of physical possession was different from the date of registration of the sale deed---Mere mention of delivery of possession in the sale instrument would not be a positive proof of such fact, which had to be independently established by the vendee when his defence of limitation was founded upon such fact---In those cases where possession had not been delivered and/or the sale deed had been executed but not registered as yet, a pre-emptor would have no notice that sale had taken place, thereby enabling him to exercise his right---In such cases the 'first part' of Art. 10 of the Limitation Act, 1908 would have no application, rather the case(s) would fall within the 'second part' of Art. 10 of Limitation Act, 1908---Period of limitation for cases falling in the 'second part' of Art. 10 was one year from when the sale instrument/deed was registered and not its date of execution.

Naseer Ahmed and another v. Asghar Ali 1992 SCMR 2300 distinguished.

Ch. Shafaat Mahmood v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 2001 CLC 751 and Chaudhry Muhammad Yusuf v. Ghulam Muhammad and 3 others 2000 YLR 2178 ref.

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

----S. 30---Limitation Act (IX of 1908), First Sched., Art. 10---Suit for pre-emption filed under the Punjab Pre-emption Act, 1913---Limitation period---Scope---For all pre-emption suits which fell within the purview of Art. 10 of the Limitation Act, 1908, S. 30 of the Pre-emption Act, 1991 would not apply.

Chaudhry Khan v. Major Khan Alam PLD 2009 SC 399 ref.

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

----S. 21---Limitation Act (IX of 1908), First Schd., Art. 10---Suit for pre-emption filed under the Punjab Pre-emption Act, 1913---Limitation period---Period of limitation of one year started from the date of execution of the sale deed and not from the date of its registration.

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

Abdul Wahid Chaudhry, Advocate Supreme Court for Respondents.

2017 S C M R 385

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

KARIM NAWAZ---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, KHUSHAB and 4 others---Respondents

Civil Appeal No. 263-L of 2009, decided on 2nd September, 2016.

(On appeal from order dated 25.5.2004, passed by the Lahore High Court, in W.P. No. 6731 of 2004)

Arbitration Act (X of 1940)---

----S. 17---Civil Procedure Code (V of 1908), S. 12(2)---Arbitration proceedings---Arbitration Award made Rule of the Court on basis of conceding statement of one of the defendants---Plea of fraud and misrepresentation---Proof---Dispute arose between sons over gift of property made by their father in favour of one of the sons---By way of the Arbitration Award, plaintiff-son was held to be the owner of the property in dispute on the basis of a gift in his favour by the father---Said Award was made the Rule of the Court on the basis of the conceding statement of the father ---Defendant-son filed an application under S. 12(2), C.P.C. alleging fraud and misrepresentation---Held, that the question as to whether judgment and decree was obtained fraudulently by the plaintiff-son would depend primarily upon the fact whether the father actually appeared in court and conceded the case of plaintiff-son of making the Award, the Rule of the Court---Judgment and decree sought to be set aside through the application under S. 12(2), C.P.C. was passed on 9-1-1979 against the father who died on 11-10-1990---On the basis of the said judgment and decree, a mutation had also been effected---During his lifetime, the father never challenged the said judgment and decree---As per the record, the Award was filed in court where the father entered appearance and stated that he had no objection if the Award was made, the Rule of the Court---Statement of father was recorded and thumb impression was obtained---Defendant-son was unable to bring any evidence on record to disprove the thumb impression of the father---No evidence was brought on record to suggest that the father did not appear and concede the case of plaintiff-son---Defendant-son in his own statement did not specifically spell out that fraud had been allegedly committed or that the father did not appear in court, and his entire evidence was based on hearsay---Stamp vendor from whom the stamp paper for the Arbitration Agreement was purchased, also entered the witness box along with his register---Counsel who represented the father also appeared as a witness and supported the case of the plaintiff-son---Defendant-son conceded in his cross-examination that plaintiff-son was in possession and cultivated the part of the land in dispute---Record also showed that the defendant-son had been involved in a murder case, giving support to the claim of plaintiff that the father and defendant-son were estranged---Application filed by defendant-son under S. 12(2), C.P.C. had been rightly dismissed---Appeal was dismissed accordingly.

Malik Noor Muhammad Awan, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (absent) for Appellant.

Muhammad Zafar Ch., Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Respondent No.3.

2017 S C M R 390

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Ijaz ul Ahsan, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 177-L of 2015, decided on 3rd August, 2016.

(Against the order dated 15.1.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.985-M of 2014)

Administration of justice---

----Concurrent civil and criminal proceedings---Stay of criminal proceedings---Scope---No universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters the proceedings before the criminal court must necessarily be stayed.

Syed Mohammad Ahmad v. The State 1972 SCMR 85; Muhammad Akbar v. The State and another PLD 1968 SC 281; Soofi Muhammad Anwar v. Mst. Badshah Begum and 6 others 1999 SCMR 1475; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771 and Seema Fareed and others v. The State and another 2008 SCMR 839 ref.

Iftikhar Ahmad Mian, Advocate Supreme Court for Appellant.

Muhammad Tahir Qureshi, Advocate Supreme Court with Respondent in person.

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

2017 S C M R 393

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SHAFIQUE SULTAN---Petitioner

Versus

Mst. ASMA FIRDOUS and others---Respondents

Civil Petition No. 1855-L of 2014, decided on 9th August, 2016.

(Against judgment dated 13.10.2014 of Lahore High Court, Lahore, passed in Writ Petition No. 14221 of 2010)

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

----S. 5, Sched.---Suit for recovery of dowry articles---Husband denying that dowry articles were ever given to wife---Proof---Wife appeared as a witness and gave details of dowry articles and placed her affidavit on record---Wife was subjected to lengthy cross-examination but nothing helpful to the husband could be brought on record---Witness who appeared on behalf of wife categorically stated that dowry articles were given by her parents at the time of her marriage---Said witness was not cross-examined on such point---In the absence of cross-examination on the question of dowry articles, the statement of said witness was to be presumed to be true which corroborated the evidence of wife---Other than denying delivery of dowry articles, the husband did not produce any evidence of any nature to substantiate his position---Furthermore, the list of dowry articles provided by wife consisted of articles of daily use which were generally given to brides at the time of their marriages---Said list did not contain any article(s) which may be termed as extravagate or beyond the financial resources of the wife's family---Supreme Court observed that giving dowry articles to daughters was in line with custom/tradition and practices which were deeply rooted in the society and were followed by parents of all classes irrespective of their financial status---Suit for recovery of dowry articles had been rightly decreed---Petition for leave to appeal was dismissed accordingly.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Depreciation in value of dowry articles---Scope---Trial Court decreed the suit to the extent of 65% of the value of dowry articles claimed by the wife on the ground that the marriage lasted 6-1/2 years and the value of the dowry articles underwent depreciation on account of use---Propriety---Such careful and circumspect approach showed due application of mind by the Trial Court and was duly supported by the case record---Suit for recovery of dowry articles had been rightly decreed---Petition for leave to appeal was dismissed accordingly.

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

----S. 5, Sched. & S. 17---Qanun-e-Shahadat (10 of 1984)---Suit for recovery of dowry articles---Proof---Receipts of dowry articles--- Provisions of Qanun-e-Shahadat, 1984 were not stricto sensu applicable to family matters, as such, the argument of the husband in the present case regarding proof of receipts and the effects of non-production of authors of such receipts was misconceived---Suit for recovery of dowry articles had been rightly decreed---Petition for leave to appeal was dismissed accordingly.

Ch. M. Ejaz Jamal, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2017 S C M R 397

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MAQSOOD AHMAD---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 575-L of 2016, decided on 23rd June, 2016.

(Against the order of the Lahore High Court, Lahore dated 7.4.2016 passed in Crl. Misc. No. 1 of 2016 in Crl. Appeal No. 464 of 2016)

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Suspension of sentence---Doctor had not given a final opinion about the cause of death of the deceased---Co-accused persons who were allegedly armed at the time of occurrence and were attributed injuries on the injured witnesses, had already been acquitted by the Trial Court---Complainant himself while appearing before the Trial Court categorically stated that his deceased-father was abducted by someone else and present accused and co-accused persons were not the culprits---Prima facie, a case for suspension of sentence in favour of the accused was made out in circumstances---Appeal filed by the accused was still pending before the High Court and its early disposal was not in sight---Guilt or otherwise of the accused was to be determined by the High Court after reappraisal of entire prosecution evidence---Sentence of life imprisonment awarded to accused by the Trial Court was suspended accordingly.

Arshad Ali Chohan, Advocate Supreme Court for Petitioner.

Ch. M. Anwar Khan, Advocate-on-Record for Respondent No.2.

Rana Abdul Majeed, Additional P.-G. for the State.

2017 S C M R 399

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

EXECUTIVE DISTRICT OFFICER (REVENUE) BAHAWALPUR and others---Appellants

Versus

MUHAMMAD ATTIQUE and another---Respondents

Civil Appeal No. 316-L of 2009, decided on 21st July, 2016.

(On appeal against the judgment dated 28.04.2008 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1194 of 2005)

Punjab Land Administration Manual---

----Para. 242---Naib-tehsildar, appointment of---Respondent who was serving as Kanungo was not considered for promotion as Naib-tehsildar as the Departmental Promotion Committee had already reserved name of one of his senior colleagues for promotion as Naib-tehsildar---Legality---Seat of Naib-tehsildar had been illegally reserved by the Departmental Promotion Committee for a senior colleague of respondent, which clearly showed mala fide and favouritism on the part of the competent authority---Service Tribunal had rightly observed that the only reason for which the respondent could not be considered for promotion was that one of the five available posts of Naib-tehsildar had been reserved for his senior colleague; that said colleague was not recommended for promotion on account of pendency of an inquiry against him and so it was the respondent who could have been considered for promotion being the next in seniority---Besides senior colleague of respondent was working against an ex-cadre post out of district, as such was not working in his parent department, therefore, he being posted out of the district was ineligible for promotion---Service Tribunal had rightly given directions to consider respondent for antedated promotion of Naib-tehsildar with effect from the date when the vacancy of Naib-tehsildar had been reserved for his senior-colleague---Appeal was dismissed accordingly.

Malik Abdul Aziz Awan, Additional A.-G. and Rao M. Yusuf Khan, Advocate-on-Record (absent) for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No.1.

2017 S C M R 402

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ

ALLAH DITTA and others---Petitioners

Versus

MANAK alias MUHAMMAD SIDDIQUE and others---Respondents

Civil Petition No. 422-L of 2015, decided on 6th September, 2016.

(Against the judgment dated 28.1.2015 of the Lahore High Court, Lahore passed in C.R. No. 97 of 2005)

Gift---

----Proof---Relationship between the alleged donor and alleged donees was of uncle and nephew(s)---Person depriving his own children and doling out his property to his nephews, seemed very unnatural conduct---Consideration for the gift as claimed by the alleged donees, that they had been looking after the alleged donor had not been proved on the record---Alleged donees asserted that the gift had been made by the deceased in their favour and subsequently the mutation was attested, but in the entire evidence led by them they had not been able to prove through positive evidence the day, venue, the persons in whose presence the alleged gift was made, the time thereof, the month and year and even the consideration---Tehsildar who sanctioned the mutation appeared and deposed that the mutation was validly attested, however such statement simpliciter by itself would not serve the purpose of the alleged donees who as beneficiaries had to prove the gift in unequivocal terms, particularly considering the fact that the Revenue Officer never stated that he knew the alleged donor personally or that the gift for valid consideration was made in his presence---Besides there were quite a few lapses committed by the revenue authorities in connection with the alleged sanction of the mutation---Suit filed by alleged donees was rightly dismissed---Petition for leave to appeal was dismissed by the Supreme Court accordingly.

Rai Muhammad Tufail Khan Kharal, Advocate Supreme Court for Petitioners.

Ejaz Anwar, Advocate Supreme Court for Respondent No.1.

2017 S C M R 404

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

MUHAMMAD ANWAR---Petitioner

Versus

SAFEER AHMED and 5 others---Respondents

Civil Petition No. 66-L of 2013, decided on 5th September, 2016.

(On appeal from judgment dated 28.11.2012, passed by the Lahore High Court, Lahore, in R.S.A. No.66 of 2010)

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

----S. 13---Suit for pre-emption---'Talb-e-Muwathibat'---Scope and proof---'Talb-i-Muwathibat' was a sine qua non for maintaining a suit for possession through pre-emption---Time, date and place of 'Talb-i-Muwathibat' must necessarily be pleaded in the plaint along with the source of information of the sale pre-empted.

Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Mst. Imtiaz Begum and others v. Mst. Sultan Jan 2008 SCMR 1268 and Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336 ref.

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

----S. 13--- Suit for pre-emption---'Talb-e-Muwathibat'---Name of informant not mentioned in the plaint---Effect---Source of information of the sale pre-empted must necessarily be pleaded in the plaint, however, the same was not done by the pre-emptor in the present case---Suit for pre-emption was rightly dismissed---Petition for leave to appeal was dismissed accordingly.

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

----S. 13---Suit for pre-emption---'Talb-e-Muwathibat', making of---Delay---Witnesses produced by the vendee categorically stated that the pre-emptor had the knowledge of the sale of the property in dispute on the date of such sale---Such portion of their statement had not been cross-examined---Pre-emptor entered the witness box and during his cross-examination conceded that the sale of the property would ordinarily be known to all and sundry in the locality---Pre-emptor also asserted that he had knowledge of such transaction on the date thereof which he stated to be 3-12-1994 (the sale actually took place on 30-11-1994)---Pre-emptor was unable to prove that the 'Talb-i-Muwathibat' was effected in accordance with law within the requisite time specified therein---Suit for pre-emption was rightly dismissed---Petition for leave to appeal was dismissed accordingly.

Malik Noor Muhammad Awan, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (absent) for Petitioner.

Rana Nasrullah Khan, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record (absent) for Respondents.

2017 S C M R 466

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

HABIB BANK LIMITED---Petitioner

Versus

HAIDER LADHU JAFFER and others---Respondents

Civil Petition No.596-K of 2015, decided on 18th January, 2017.

(Against the judgment dated 6-10-2015 of the High Court of Sindh at Karachi passed in H.C.A. No.10 of 2014)

Civil Procedure Code (V of 1908)---

----S. 151 & O.VI, R.19---Constitution of Pakistan, Art.185(3)---Restoration of suit---Non-filing of form of address---Leave to appeal was granted by Supreme Court to consider questions that whether a simple petition under S.151 of the C.P.C. against the dismissal of the suit which resulted in a decree after the dismissal of the suit in default for appearance was maintainable and competent; that as to how the respondents/plaintiffs conducted themselves throughout the proceedings in pursuing their remedy, whether they were vigilant or otherwise; that whether the petition filed for restoration in question was within the period of limitation because no date of getting knowledge of the dismissal of their petition for default in appearance had been mentioned in application for restoration; that whether the process of the Court keeping in view the ordinary course of events and presumption attached therewith could be held to have been duly served on the respondents/plaintiffs about the date fixed for hearing in the main petition and that whether non-filing of form of address in terms of O.VI, R.19 of the C.P.C. had adverse consequences on the respondents/plaintiffs---Supreme Court, however, observed that it would be a futile exercise in case the appeal was allowed, thus the proceedings before that Trial Court were suspended.

Rasheed A. Rizvi, Senior, Advocate Supreme Court and M. Kassim Mirjat, Advocate on Record for Petitioner.

Mrs. Saba Latif, Advocate Supreme Court along with Taffazul H. Rizvi, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record (absent) for Respondents Nos. 1 and 2.

2017 S C M R 468

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

NASIR FAHIMUDDIN and others---Appellants

Versus

CHARLES PHILIPS MILLS and others---Respondents

Civil Appeal No. 514 of 2008, decided on 1st October, 2014.

(Against the judgment dated 25.3.2008 of the Lahore High Court, Lahore passed in Writ Petition No.9530/1998)

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed]-

----S. 18---Qanun-e-Shahadat (10 of 1984), Arts. 92 & 114---Evacuee property---Proof---Whether suit property was evacuee property---Respondent claimed that suit property was not evacuee property, and that appellants were only in possession as licensees---Appellants contended that suit property was sold by respondent's mother to an evacuee before partition of sub-continent; that on partition the property was treated as evacuee property, and as appellants were displaced persons, the Settlement Department, transferred the same in their name---Validity---Suit property was sold by respondent's mother in favour of a hindu evacuee/purchaser, and name of the purchaser was duly reflected in the record of the Municipal Corporation, which record carried presumption of correctness in terms of Art. 92 of the Qanun-e-Shahadat, 1984---Respondent's mother, after selling the property, never paid property tax till the date she remained alive; she never even contacted the appellants for the purposes of seeking the possession of the property or asserting herself to be the owner; she had also not been registered as an owner with the relevant tax authorities---Respondent's mother in her lifetime had never challenged the Permanent Transfer Deeds in favour of the appellants or sought the eviction of the appellants from the property---Such conduct on her part proved that she was not claiming the ownership of the property and, therefore, was estopped in terms of Art. 114 of the Qanun-e-Shahadat, 1984---Consequently, no valid locus standi would pass on to her son/respondent for claiming ownership of suit property --- Respondent had obtained a consent decree in respect of ownership of suit property without any notice to appellants, in a clandestine manner, which otherwise was not binding upon the appellants---Immediately after obtaining the consent decree, respondent purportedly sold the property to a third party in a dubious manner---Respondent had failed to discharge the onus that appellants were licensees in the suit property---Consent decree obtained by respondent was set aside in circumstances and suit filed by him was dismissed--- Appeal was allowed accordingly.

Suit property was owned by respondent's mother. Appellants claimed that respondent's mother sold the suit property to a hindu evacuee in 1940 and that on the partition of sub-continent the property was treated as an evacuee property; that the appellants being displaced persons from India occupied the said property after partition, and on account of such occupation, and the property being an evacuee property, the Settlement Department issued them Permanent Transfer Deeds. On the other hand, respondent claimed that his mother remained owner of suit property throughout, and she only put appellants in possession of suit property as licensee, thus, the property could not be termed as evacuee property.

Property was owned by respondent's mother in the year 1940 according to the record of the Municipal Corporation, however the record also showed that some change in the ownership took place in 1940 and per the same respondents' mother sold out the property to a hindu evacuee. Report of the concerned Municipal Corporation dated 26-9-1946 approved by the Secretary, Municipal Corporation clearly proved that the property in question had been sold in favour of a hindu evacuee. Subsequent record of the Municipal Corporation clearly indicated that the change in the ownership had been duly incorporated in the relevant record and it was the hindu evacuee who had been not only mentioned as the owner of the property, but was required to make the payment of the requisite property tax. All said record had been produced and proved through the concerned official of the Municipal Corporation and such record was the one which had been maintained under the law. Therefore, according to the provisions of Article 92 of the Qanun-e-Shahadat, 1984 it carried presumption of correctness. No evidence at all has been led by respondent to dispel such presumption or to even mention, if these documents and the record had been forged and fabricated by the appellants. On the basis of the said documentary evidence, a valid conclusion could be drawn that in the year 1940 respondent's mother had sold suit property to the hindu evacuee and the process of change of ownership commenced straightaway and it continued till 1946 when it was confirmed that hindu evacuee was owner of the property.

The onus to prove that the appellants were the licensees in the property was upon the respondent but this onus had not been discharged at all. Furthermore, respondent's mother was alive for about 33 years after the creation of Pakistan but during all this period she never ever paid any property tax to the concerned property tax department; never asked the appellants to vacate the property; never ever initiated any proceedings, meaning thereby that she herself knew and acknowledged through her conduct and silence that the property had already been sold by her in favour of the hindu evacuee, and, therefore, had no connection, right or interest in the property. Obviously in such circumstances her conduct would prove that she was not claiming the ownership of the property and, therefore, was estopped in terms of Article 114 of the Qanun-e-Shahadat, 1984. Consequently, no valid locus standi would pass on to her son/respondent for claiming ownership of suit property.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 and Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 ref.

After the death of his mother, the respondent, all of a sudden filed a suit against his father claiming that his father had relinquished his share in favour of the respondent, and obtained a consent decree to that effect and sold the property onto a third party. Question was as to why, if the appellants were licensees of respondent's mother, which interest had devolved upon the respondent, did they never ask the appellants to vacate the property, rather in a covert manner the respondent filed a suit and obtained a decree in his favour. The object of the decree in fact, as the subsequent events revealed, was to have a declaration by a court to the title of the property which otherwise, the respondent could not prove on the basis of the record of the Municipal Corporation. The very fact of filing of the suit by itself was sufficient to establish that the respondent knew that the property had been sold by his mother in favour of the hindu evacuee.

There was no record of a registered sale deed/registered document in favour of the hindu evacuee, but, in the present case, there was no reason to presume that the sale was not conducted per the law. The possibility could not and should not be ruled out that it was not possible for the respondent to find out the exact date of the sale deed, when the same was not on the record of the Municipal Corporation. In any case, since the property had been treated as an evacuee property, it was the duty of the respondent to challenge the Permanent Transfer Deeds in favour of the appellants instead of filing a suit against his father. The initial onus to disprove the said sale to the hindu evacuee, in light of the Municipal Corporation record and on account of the Permanent Transfer Deeds, was on the respondent, who failed to discharge the same. Consent decree obtained by respondent was set aside in circumstances and suit filed by him was dismissed. Appeal was allowed accordingly.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed]---

----S. 41---Evacuee property---Jurisdiction of courts barred---Once a property was treated to be an evacuee property even erroneously, the same could not be held to be otherwise and the civil court in such behalf would have no jurisdiction.

Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441 ref.

Ch. Khurshid Ahmed, Senior Advocate Supreme Court for Appellants.

Amir Alam Khan, Senior Advocate Supreme Court for Respondent No.1.

Ch. Ihsan-ul-Haq, Advocate Supreme Court for Respondent No.2.

2017 S C M R 482

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

CONTROLLER OF MILITARY ACCOUNTS (RC) EDUCATION CELL, RAWALPINDI---Petitioner

Versus

MUHAMMAD ZAFAR, ASSISTANT PROFESSOR and another---Respondents

Civil Petition No. 1958 of 2006, decided on 19th January, 2017.

(On appeal against the judgment dated 31.03.2016 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1891(R)SC/2015)

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

----S. 11-A--- Pay protection, entitlement to--- Scope--- Ad hoc appointment---Where a civil servant was declared surplus pursuant to any government decision, then he was to be accommodated to a post carrying equal pay scale---Where equal post was not available then he could be appointed to a lower post but the pay which he was drawing in the higher post shall remain protected---Such benefit could not be denied to an employee merely because previously he was holding a post on ad hoc basis.

(b) Civil service---

----Ad hoc appointment---Ad hoc employee in government service was also to be treated as civil servant.

Muhammad Sarfraz v. Government of Punjab 2001 PLC (C.S.) 1224 ref.

Sajid Ilyas Bhatti, DAG and Jaffar Raza Khan, Advocate-on-Record (Absent) for Petitioner.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Raza Ch., Advocate-on-Record (Absent) for Respondent No.1.

Mehrban Khan, Admin Officer, FGEI, Dte, Rwp for Respondent No.2.

2017 S C M R 486

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

MUHAMMAD ASIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 176 of 2012, decided on 18th January, 2017.

(On appeal from the judgment dated 12.3.2010 passed by the Lahore High Court, Lahore in Crl. A. No. 174-J/2004 and M.R. 639/2004)

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Unnatural conduct of witnesses---Interested and related witnesses---Doubt in recovery of weapon---Father and mother of deceased alleged that their deceased son went outside the house with the accused and co-accused; that they followed their son and saw the accused and co-accused persons murder their son with a dagger---No convincing and plausible reason had been advanced as to why the parents followed their deceased son and what was the object behind it---Conduct of both said alleged eye-witnesses ran counter to normal human behaviour---Two independent witnesses who were close friends of the deceased and were on frequent visiting terms were not produced at the trial as witnesses in such way, the best evidence, independent in nature, was withheld from the court, which was sufficient to discard the evidence of the deceased's parents, who were interested and related witnesses---Site plan, which was never denied by the prosecution, showed that the distance between the deceased and the accused was twenty feet---Question was as to how in a dark night, the witnesses were able to identify the accused and the dagger in his hand from such a distance---Autopsy report/medical evidence did not support the time of death of deceased as claimed by the prosecution---Motive set up was not only weak and feeble but also not established because the daughter of the complainant in whose presence the alleged quarrel with accused party took place prior to the murder, was not produced at trial---No evidence has been brought on record to establish that the shop, wherefrom dagger belonging to accused was recovered, was in an exclusive possession and ownership of the accused---Conviction and sentence of accused for murder was set aside in circumstances---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd---Evidence of prosecution witnesses, reliance upon---Scope---Once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Question as to presence of witnesses at the spot on the time of occurrence---Parents and friends of deceased claimed that they saw the accused murdering the deceased with a dagger---Eyes and mouth of deceased were found open, thus, if parents and close friends of deceased had witnessed the incident they would have followed the common practice of closing the eyes and mouth of deceased on his death---Such fact indicated that neither the parents nor the friends of deceased were present to witness the occurrence---Conviction and sentence of accused for murder was set aside in circumstances---Appeal was allowed accordingly.

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

----S. 161---Statement of witness before police---Delay---Even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses could not be safely relied upon.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Recovery of weapon from premises belonging to accused---Evidentiary value---Dagger used by accused to commit murder was recovered from his shop---Supreme Court observed that it was, normal practice and conduct of culprits that when they selected night time for commission of crime, their first anxiety was to conceal their identity so that they may go unidentified and in that course they tried their level best to conceal or destroy each piece of incriminating evidence which might be used against them in the future; that human prudence would not accept that the accused, after committing murder with a dagger, would choose to preserve it in his own shop rather than throwing it away in any field, water canal, well or other place---Conviction and sentence of accused for murder was set aside in circumstances---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd---Articles sent to Chemical Examiner and Serologist for examination---Practice to be followed by police---Mere sending of blood stained crime weapons to the Chemical Examiner and Serologist would not serve the purpose of the prosecution nor would it provide any evidence to inter link different articles---Unless the blood-stained earth or cotton and blood-stained clothes of the victim were sent with the crime weapon for opinion of Serologist it could not be conclusively opined that it was human blood on the crime weapon, and that it was of the same group which was available on the clothes of the victim and the blood-stained earth/cotton---Failure to follow such practice would make the opinion of Chemical Examiner inconclusive, which could not be used as piece of corroboratory evidence.

Muhammad Akram Gondal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

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

2017 S C M R 516

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Dost Muhammad Khan, JJ

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

----S. 12---Constitution of Pakistan, Art. 185(3)---

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

----Ss. 12 & 22---

(c) Administration of justice---

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

----S. 12---

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

----S. 12---

2017 S C M R 524

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

JAVED KHAN alias BACHA and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 126 and 127 of 2010, decided on 20th January, 2017.

(On appeal against the judgment dated 16.04.2009 passed by the Lahore High Court, Rawalpindi Bench in Crl. A. No. 268/2003 and M. R. No.425/2003 and Crl. Rev. No. 140/2003)

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

----Ss. 302, 34 & 394---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Reappraisal of evidence---Lapses in identification of accused persons---Complainant had not mentioned any features of the assailants either in the FIR or in his statement recorded under S. 161, Cr.P.C., therefore there was no benchmark against which to test whether the accused persons, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits---Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring---Complainant had named three other persons who could recognize the assailants, however, none of the said three persons participated in the identification proceedings and two were not even produced as witnesses by the prosecution---Another witness who identified the accused persons was a chance witness, who could not explain his presence at the place of occurrence---During the identification proceedings both the accused persons had informed the Magistrates who were conducting the identification proceedings, and before the identification proceedings commenced, that they had earlier been shown to the witnesses---Magistrates recorded such objection in their reports but surprisingly did not attend to it, which could only be categorized as a serious lapse on their part---Prosecution witnesses who identified the accused persons before the Trial Court had a number of opportunities to see the accused persons before their statements were recorded---Reliance could not be placed upon the report of the identification proceedings in such circumstances---Identification of the accused persons in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential---Accused persons were acquitted of all charges in circumstances---Appeal was allowed accordingly.

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

----Art. 22---Test identification parade---Scope and object---Identification proceedings must be carefully conducted --- Main object of identification proceedings was to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that was, of an old, young, tall, short, fat, thin, dark or fair suspect.

Ramzan v. Emperor AIR 1929 Sindh 149; Alim v. State PLD 1967 SC 307; Lal Pasand v. State PLD 1981 SC 142 and Imran Ashraf v. State 2001 SCMR 424 ref.

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

----Ss. 302, 34 & 394---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention robbery---Reappraisal of evidence---Doubts as to when and how the bullet casing and weapon were delivered to the Forensic Science Laboratory---Police allegedly recovered the pistol stated to have been used in the crime in another case, wherein accused was implicated---Pistol was sent to the Forensic Science Laboratory on 7-1-2002, whereas the investigation officer stated that accused disclosed using the same weapon in present crime on 14-10-2001---Such delay in sending the pistol to the Laboratory was not explained---Neither the Forensic Science Laboratory nor any of the policemen, who had retrieved the bullet and its casing and had kept them in custody and then delivered them to the Laboratory, mentioned the marks affixed on the seals affixed on the parcels in which the said items were delivered to and received by the Laboratory---Under such circumstances it would not be safe to uphold the conviction of the accused persons merely on the basis of the firearm expert's report because of the legitimate concerns about when and how the bullet casing and pistol were delivered to the Forensic Science Laboratory---Accused persons were acquitted of all charges in circumstances---Appeal was allowed accordingly.

Altaf Elahi Sheikh, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Rana Abdul Majeed, Additional P.-G. for the State.

Ansar Nawaz Mirza, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for the Complainant.

2017 S C M R 531

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

JAVED---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1333 of 2016, decided on 31st January, 2017.

(On appeal against the order dated 2.12.2016 passed by the Peshawar High Court, Peshawar in Cr. Misc. B.A. No. 2746-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Accused suffering from physical disability---Allegation against accused was that he was present with the principal accused in a car, which contained 35 kilograms of narcotic (charas)---Accused was a crippled person who had suffered from polio virus and both his legs were not normal---Concession could be granted to an accused who was disabled---Presently there was no clear evidence/material to reasonably establish the connection of the accused with the principal accused, who was still at large and who was in exclusive control of the car, being its owner, and to whom knowledge of the presence of the narcotics could be conveniently attributed---Prosecution could lead evidence at trial to reasonably connect the accused with the constructive knowledge about the presence of the narcotics in the car but on the available record it was not a case where bail could be justifiably refused---Accused was granted bail accordingly.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Zahid Yousaf Qureshi, Advocate Supreme Court and Malik Taj, S.I./I.O. for the State.

2017 S C M R 533

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

Ch. SHAUKAT ALI---Petitioner

Versus

Haji JAN MUHAMMAD and others---Respondents

Civil Petition No. 2669-L of 2015, decided on 16th January, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 5.11.2015 passed in W.P. No. 27623 of 2015)

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction---Prosecution alleged that nine nominated accused along with 5/6 other persons resorted to indiscriminate firing as a result whereof nine persons from the complainant side sustained multiple firearm injuries---Investigating officer, however, stated that only 11 empties of two different bores i.e. .30 bore and .12 bore were recovered during inspection of the spot---FIR also alleged that all the nominated accused were armed with multiple firearms but during investigation only .30 bore pistol and a 12 bore gun were recovered at the instance of only one accused---Empties secured from the spot and the recovered weapons were sent to the Forensic Science Laboratory (FSL) for analysis and the report of FSL was in the negative---All the five prosecution witnesses (some of whom were injured) recorded their statements before the Magistrate under S. 164, Cr.P.C., wherein they by and large exonerated the nominated accused persons by stating that they did not know as to who fired at them; that none of the nominated accused fired at them nor they saw any weapon in the hands of any of the nominated accused persons---Prima facie, it appeared from the facts of the case that altercation between the parties occurred all of a sudden when the procession of the complainant side on winning the election was passing in front of house of accused party and there was no prior 'object/design'---Allegations levelled in the FIR, the material collected by the investigating agency during course of investigation and other surrounding circumstances showed that present case was not triable by the Anti-Terrorism Court---High Court had rightly directed the Anti-Terrorism Court to transfer the record of present case to the court of ordinary jurisdiction---Petition for leave to appeal was dismissed accordingly.

Kashif Ali v. The Judge, Anti-Terrorism Court No. II, Lahore and others PLD 2016 SC 951 ref.

Naveed Inayat Malik, Advocate Supreme Court for Petitioner.

Imtiaz Ahmed Kaifi, Additional A.-G. and Nazeer Hussain, Incharge Investigation, P.S. Factory Area, Lahore for the State.

Aitzaz Ahsan, Senior Advocate Supreme Court for Respondent No.1.

2017 S C M R 538

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

AWAL KHAN and 7 others---Petitioners

Versus

The STATE through AG-KPK and another---Respondents

Criminal Petition No. 1287 of 2016, decided on 12th January, 2017.

(On appeal from the judgment dated 28.10.2016 passed by the Peshawar High Court, Bannu Bench in Crl. Misc. Jail Application 350-B of 2016)

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

----S. 497(2)---Bail, grant of---Further inquiry---Contradiction between medical evidence and ocular account---Accused persons, nine in number, were alleged to have fired at the complainant party with Kalashnikovs---Number of injuries on the person of the deceased and the two injured persons suggested that the noose had been thrown much wider by the complainant, charging two real brothers and their sons and an unknown accused---Kalashnikov rifle was a very formidable weapon and if nine persons had participated in the crime, as alleged by the complainant, none would have escaped alive and the nature and size of injuries would have been different from the ones stated in the medical report---Recovery of two 12 bore empties from the site would further strengthen the view that the two injured had sustained shot gun injuries with pallets and not with Kalashnikov bullets, as alleged by the complainant---Medical evidence showed a single inlet and exit wound on the deceased and two shot gun injuries on the injured victims, which suggested that at most two persons participated in the occurrence, whereas, complainant had implicated nine persons for effectively airing at complainant party---Contradiction between the ocular account and medical evidence had rendered the case of the accused persons to be one of further inquiry---Accused persons were enlarged on bail accordingly.

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

----S. 497--- Bail--- Benefit of doubt---Scope---When the medical evidence was in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused.

Khan Mir v. Amal Sherin 1989 SCMR 1987; Muhammad Hanif v. Manzoor and 2 others NLR 1981 SC 367 and Syed Khalid Hussain Shah v. The State 2014 SCMR 12 ref.

Amjad Iqbal Khan, Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record (Absent) for Petitioners.

Muhammad Aslam Ghumman, Advocate Supreme Court and Munawar Khan, ASI/IO for the State.

2017 S C M R 560

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

MUHAMMAD NOMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1188 of 2016, decided on 12th January, 2017.

(On appeal from the judgment dated 2.11.2016 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Crl. Misc. No.1850/B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 9---Pakistan Arms Ordinance (XX of 1965), Ss. 13-2(A) & 20---Explosive Substances Act (VI of 1908), S. 4---Acts of terrorism, possession of illegal weapons, explosives and time-bombs---Bail, grant of---Further inquiry---Counter-Terrorism Department alleged that accused and co-accused persons were arrested while travelling in a car, that contained arms, ammunition, bombs, explosives and militant literature---Family of accused on the other hand alleged that accused was picked up from his house by some unknown persons and subsequently police showed his arrest; that the incident of accused's abduction was immediately reported to the police, and that a habeas corpus petition was also filed to find the whereabouts of the accused after his abduction---Written complaint submitted by family of accused about his abduction from his house, was neither inquired into nor investigated in any manner whatsoever, rather the same was deliberately suppressed by the police---Investigating officer had not opined that the accused was found connected with any militant group or had been found financer or provided any other facility to militants---Investigation/inquiry carried out was neither satisfactory nor free from malice and the accused's implication in present case was not free from reasonable doubt, thus, he could not be left at the mercy of the police---Investigation, in the present case, was one-sided and the other aspects of vital importance were not touched much less investigated into without any explanation offered by the investigating officer---Case of the accused was one of further inquiry into his guilt---Accused was granted bail accordingly.

Azam Nazeer Tarar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Muhammad Sarwar Sindhu, Additional P.G., Punjab, Maqbool Ahmad, Inspector, CID and Muhammad Ali, SI/SHO for the State.

2017 S C M R 564

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

ARSHAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 75 of 2011, decided on 14th November, 2016.

(Against the judgment dated 29.10.2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.250 of 2008, Criminal Revision No.115 of 2008 and Murder Reference No.27 of 2006)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Accused was sentenced to death for murdering his wife---According to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such 'electric bulb' had been secured by the investigating officer---FIR had not been lodged at the local police station but the same had been lodged when the complainant had per chance met a police officer when he was proceeding to the police station---Both the eye-witnesses were very closely related to the deceased and they were admittedly chance witnesses---Stated reason for presence of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever---According to the prosecution the accused and his wife quarrelled on regular basis because the accused was suspicious of his wife's character, however nothing had been brought on the record by the prosecution to substantiate such allegations---Blood-stained churri allegedly recovered at the instance of the accused was recovered from an open and accessible place and, thus, it could not be said that the recovery was effected from the exclusive possession of the accused---Besides no independent witness was associated during recovery proceedings---Post-mortem examination of the dead body of deceased had been conducted with a long delay for which no explanation had been brought on the record---Record showed that the prosecution was not sure about the exact time of deceased's death---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of death recorded against the accused was set aside in circumstances---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Husband accused of murdering his wife inside matrimonial home---Burden of proof---Scope--- Part of the onus laid on the accused husband to explain as to how and in what circumstances his wife had died an unnatural death inside the confines of the matrimonial home, but at the same time where the prosecution completely failed to discharge its initial onus then no part of the onus shifted to the accused person at all.

Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmed v. The State 2015 SCMR 710 and Abdul Majeed v. The State 2011 SCMR 941 ref.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

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

2017 S C M R 568

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S. 161---

2017 S C M R 571

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

MUHAMMAD ZAMAN and others---Appellants

Versus

GOVERNMENT OF PAKISTAN through Secretary, Finance Division (Regulation Wing), Islamabad and others---Respondents

Civil Appeal No. 1313 of 2014, decided on 21st February, 2017.

(Against the judgment dated 15.5.2014 of the Peshawar High Court, Peshawar passed in W.P. No. 1882-P/2013)

(a) State Bank of Pakistan Act (XXXIII of 1956)---

----S. 54(1) [as amended by the State Bank of Pakistan (Amendment) Act (II of 1994)]---State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 ("Regulations")---Scope---State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 were instructions for the internal control or management of the State Bank of Pakistan and were therefore non-statutory---Before the amendment made to S. 54(1) of the State Bank of Pakistan Act, 1956, the Bank could only make regulations with the approval of the Federal Government, however by virtue of the State Bank of Pakistan (Amendment) Act, 1994, the words "subject to the approval of the Federal Government" were omitted---Such omission was significant, conferring greater autonomy on the Central Board of Directors of State Bank of Pakistan and the Federal Government was removed from the regulation-making process, and full authority came to vest in the Board to make such regulations---Amendment made to S. 54(1) of the State Bank of Pakistan Act, 1956, suggested that the intention of the legislature was to exclusively clothe the Bank with the power to frame regulations to carry out the objects and purpose of the Act---Appeal was dismissed accordingly.

Chief Manager, State Bank of Pakistan, Lahore and another v. Muhammad Shafi 2010 SCMR 1994 ref.

(b) Interpretation of Rules/Regulations---

----Statutory or non-statutory nature, determination of---Test of whether rules/regulations were statutory or otherwise was not solely whether their framing required the approval of the Government or not, rather it was the nature and efficacy of such rules/regulations---Court had to see whether the rules/regulations dealt with instructions for internal control or management, in which case they would be non-statutory, or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory.

Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 ref.

Abdul Rahim Bhatti, Advocate Supreme Court and Abdul Rehman Khan, Advocate Supreme Court for Appellants.

Syed Nayab Hassan Gardezi, Standing Counsel, M.S. Khattak, Advocate-on-Record and Abid Hussain Channa, S.O. Finance for Respondent No.1.

Kh. Muhammad Farooq, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 2 to 4.

2017 S C M R 580

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

Ex-Lance Naik MUKARRAM HUSSAIN and others---Petitioners

Versus

FEDERAL GOVERNMENT, M/O DEFENCE through Chief of the Army Staff and others---Respondents

C.R.Ps. 87, 125 of 2015 in C.As. Nos.1366, 718 of 2007, C.M.A. No.7144 of 2015, C.M.A. No. 6887 of 2015 in C.R.P. No. 452 of 2015 in C.P. No. 276 of 2015, decided on 23rd January, 2017.

(For review of the judgment dated 1.4.2015 passed by this Court in C.As. Nos.718 and 1366 of 2007)

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

----Ss. 1(2), 5(2) & 345(2)---Pakistan Army Act (XXXIX of 1952), S. 143---Conviction and sentence recorded under the Pakistan Army Act, 1952---Compromise filed before the Supreme Court---Jurisdiction of Supreme Court---Scope---Provisions of the Criminal Procedure Code, 1898 were not applicable to the matters governed by any Special or Local Law unless specifically provided in the said laws wholly or to any extent---Person who was proceeded against under a special law (Pakistan Army Act, 1952), he would be dealt with according to the procedure of enquiry/investigation and trial as laid down in the said special law---Provisions of Cr.P.C., therefore, would not be attracted to a case involving an offence dealt with by the Field General Court Martial under the Pakistan Army Act, 1952---Accused persons, in the present case, were dealt with in accordance with the provisions of the Pakistan Army Act, 1952---Provisions of S. 143 of the Pakistan Army Act, 1952 provided that it was the Federal Government or the Chief of Army Staff or any officer not below the rank of Brigadier empowered in such behalf by the Chief of Army Staff who was empowered to grant pardons, remissions and suspensions---Since provisions of the Pakistan Army Act, 1952 were special law, the Supreme Court could not assume jurisdiction in the matter of compromise between the accused persons and legal heirs of the deceased---Review petition along with application was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---Scope of review provided under Art. 188 of the Constitution was very limited as such jurisdiction could only be exercised by the Supreme Court when there was an apparent error on the face of the record having bearing on the fate of the case.

(c) Constitution of Pakistan---

----Arts. 184 & 185---Pakistan Army Act (XXXIX of 1952), Preamble---Orders or actions of the Armed Forces---Supreme Court, jurisdiction of---Scope---Where such orders or actions suffered from mala fide, jurisdictional error or were coram non judice, jurisdiction of the Supreme Court was not ousted.

Ghulam Abbas v. Federation of Pakistan through Secretary Ministry of Defence 2014 SCMR 1530 ref.

Col. (R) Muhammad Akram, Advocate Supreme Court and Ch. Akbar Ali, Advocate-on-Record for Applicant/Petitioner (in C.M.A. 6887 of 2015 and C.R.P. 125 of 2015).

Nemo (in C.R.P. 87 of 2015).

Sajid Ilyas Bhatti, DAG and Major Asad, JAG, G.H.Q. for Respondents.

2017 S C M R 585

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Maqbool Baqar, JJ

COLLECTOR OF CUSTOMS, PESHAWAR---Appellant

Versus

WALI KHAN and others---Respondents

Civil Appeal No. 1050 of 2009, decided on 23rd February, 2017.

(Against the judgment dated 17.2.2009 of the Peshawar High Court, Peshawar passed in Customs Reference No. 24 of 2007)

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

----S. 2(s)---S.R.O. No.566(I)/2005 dated 6-6-2005---Smuggled goods---Scope---'Black tea'---Consignment of "black tea" was confiscated on 06-01-2007---Item No.35 of SRO No.566(I)/2005 dated 6-6-2005 stated "Black Tea (except Op-Pekoe)", thus black tea was a restricted/prohibited item and fell within the meaning of smuggled goods in terms of S. 2(s) of the Customs Act, 1969.

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

----S. 2(s)---S.R.O. No.566(I)/2005 dated 6-6-2005 ("the SRO")---Smuggled goods---Scope---'Artificial silk cloth'---Item No.28 of SRO No.566(I)/2005 dated 6-6-2005 pertained to man-made or synthetic fibers/fabric---Cloth, in the present case, was described as artificial silk cloth and was undoubtedly a man-made fabric as it comprises of synthetic fiber and thus was squarely covered by Item No.28 of the SRO---Cloth in question was of a foreign origin and was a restricted/prohibited item as per Item No.28 of the SRO, therefore, it fell within the meaning of smuggled goods in terms of S. 2(s) of the Customs Act, 1969.

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

----S. 156(1), Cl. 89---"Smuggled goods"---Salient features of Cl. 89 of table provided under S. 156(1) of the Customs Act, 1969---Clause 89(i) dealt with smuggled goods as well as those goods regarding which there was reasonable suspicion that they were smuggled---Person was permitted to acquire possession etc. of such goods only with lawful excuse, the burden of proof of which laid on such person, and in case he failed to do so, it would be presumed that the goods were smuggled entailing the consequences provided in Column 2 of Cl. 89(i).

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

----S. 156(1), Cl. 90---"Smuggled goods"---Salient features of Cl. 90 of table provided under S. 156(1) of the Customs Act, 1969---Clause 90 of S. 156(1) dealt with goods that were not smuggled and regarding which there was "fraudulent evasion or attempt at evasion of any duty chargeable thereon---Burden laid on the person involved in such activities to prove the contrary, in the absence of which it would be presumed that the goods were non-duty paid in terms of Cl. 90---In this regard, first the department had to show that the goods which were of a foreign origin could only be imported on payment of duty or under a licence or their import was prohibited or restricted; it would then be for the possessor of such goods to show that they were lawfully imported either before any restrictions/prohibitions were imposed or in accordance with such restrictions/prohibitions.

Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan PLD 1959 SC 177 and Sikandar A. Karim v. The State 1995 SCMR 387 ref.

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

----Ss. 2(s) & 181---S.R.O. No.574(I)/2005 dated 6.6.2005 ("SRO 574")---Smuggled goods, confiscation of---Option to pay a fine in lieu of confiscation of goods---Section 181 of the Customs Act, 1969 allowed an officer passing an order for confiscation of goods to give the owner of the goods an option to pay a fine in lieu of such confiscation---First proviso to S. 181, however, provided that the Federal Board of Revenue may by an order specify the goods or class of goods where such option shall not be given---Board had issued SRO 574 which provided, inter alia, that "no option shall be given to pay fine in lieu of confiscation in respect of… (i) smuggled goods falling under Cl. (s) of S. 2 of the Customs Act, 1969 or (ii) conveyance including packages and containers found carrying offending goods of S.2(s) of the Customs Act, 1969---Since the smuggled goods in the present case were covered under SRO 574, therefore, the imposition of redemption fine at 30% by the Collector Customs (Appeals) and 15% by the Appellate Tribunal was in violation of S. 181 of the Customs Act, 1969 and SRO 574---Appeal was allowed accordingly.

Muhammad Habib Qureshi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Isaac Ali Qazi, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 4.

Ex parte for Respondent No.3.

2017 S C M R 594

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

TARIQ IQBAL alias TARIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 239 of 2011, decided on 24th November, 2016.

(Against the judgment dated 26.10.2010 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 52 of 2006 and Murder Reference No. 143 of 2006)

Penal Code (XLV of 1860)---

----Ss. 302(b), 392, 449 & 411---Qatl-i-amd, robbery, house-tresspass, dishonestly receiving stolen property---Reappraisal of evidence---Death sentence, confirmation of---Cruel and desperate nature of accused---Accused was convicted and sentenced to death for committing murder of complainant's wife---Accused had not pressed present appeal on merits and the only question raised was relating to the quantum of sentence awarded to him, which showed that guilt of accused as well as all the factual allegations levelled by the prosecution against him conclusively stood settled and accepted---Accused trespassed into the complainant's house, killed the complainant's wife and robbed different articles, which later on were recovered from the accused's custody---Accused had made an extra-judicial confession before two witnesses and had also made a judicial confession before a Magistrate---Murder in issue had been committed by the accused in furtherance of a robbery and a young lady in her prime had been butchered by the accused inside her house by giving as many as ten chhurri blows on different parts of her body---Such conduct displayed by the accused clearly showed that he was a cruel and desperate person who deserved no sympathy in the matter of his death sentence---Appeal was dismissed accordingly.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

Complainant in person.

Muhammad Abdul Wadood, Deputy Prosecutor-General, Punjab for the State.

2017 S C M R 596

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

Mst. RUKHSANA BEGUM and others---Appellants

Versus

SAJJAD and others---Respondents

Criminal Appeals Nos.324 and 325 of 2011, decided on 25th January, 2017.

(On appeal from the judgment dated 17.6.2010 of the Lahore High Court, Lahore passed in Crl. A. No. 2124 of 2005, Crl. Rev. No.150 of 2005 and M. R. No. 107 of 2005)

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Benefit of doubt---Time of occurrence shown in the FIR was 11.00 a.m., and inquest report showed time of death of deceased persons as 12:40 p.m., which created doubt as the occurrence only lasted for a few minutes---No crime empty had been shown in the inquest report, but in the recovery memo and in the site-plan, these empties had been shown lying very close to the deceased persons---Site plan showed that, the complainant party had no land near or around the crime spot and even the cattle-shed where they were allegedly sitting, belonged to some other person, therefore, claim of complainant that they took a round of their crop prior to the occurrence, stood falsified---One of the alleged eye-witness of the occurrence belonged to another village, and he did not provide any reason or definite purpose for visiting the crime spot, therefore, he was either not present at the crime scene or he was a chance witness---Said eye-witness also made dishonest improvements in his statement recorded during trial from the one he had given to the police and admitted that, after arrival of the police at the spot, the statement of the complainant was recorded first thus, it provided strength to the view that FIR was lodged at crime spot after deliberation and consultations---Investigation conducted in the present case was neither fair nor honest, therefore, the alleged recovery crime weapons from accused persons lost its legal worth---Prosecution had failed to prove its case against the accused persons beyond any reasonable doubt, therefore, while extending them benefit of doubt, they were acquitted of all the charges levelled against them---Appeal was disposed of accordingly.

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

----Ss. 302(b), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Unnatural conduct of accused party in deliberately leaving the complainant and eye-witnesses alive---According to the FIR, all the accused persons encircled the complainant, the prosecution witnesses and the two deceased thus, the apparent object was that none should escape alive---Complainant being father of the two deceased and the head of the family was supposed to be the prime target as he had vigorously pursued a case against the accused party and also deposed against them as an eye-witness---Site-plan positions would show that the complainant and the prosecution witnesses were at the mercy of the assailants but no threat was extended to them---Such unbelievable courtesy extended by the accused persons to the complainant and prosecution witnesses, knowing well that they would depose against them created serious doubts in the prosecution case---Such behavior on the part of the accused persons ran counter to natural human conduct and the behavior explained in the provisions of Art. 129 of the Qanun-e-Shahadat, 1984---Accused persons were acquitted of all the charges levelled against them in circumstances.

(c) Criminal trial---

----"Chance witness"---Meaning---Chance witness was one who, in the normal course was not supposed to be present on the crime spot unless he offered cogent, convincing and believable explanation, justifying his presence there.

(d) Criminal trial---

----Witness whose presence at the crime spot was doubtful---Reliance---Scope---Single doubt reasonably showing that a witness's presence on the crime spot was doubtful during the occurrence, it would be sufficient to discard his testimony as a whole---Said principle may be pressed into service in cases where such witness was seriously inimical or appeared to be chance witness.

(e) Criminal trial---

----Recovery of crime article---Attesting witness---Corroboration from independent evidence---Scope---Corroboratory evidence, must come from an independent source providing strength and endorsement to the account of the eye-witnesses, therefore, eye witnesses, in the absence of extraordinary, exceptional and rare circumstances, could not corroborate themselves by becoming attesting witness to the recovery of crime articles---Eye-witnesses could not corroborate themselves but corroboratory evidence must come from independent source and it should be supported by independent witnesses other than eye-witnesses.

Ansar Nawaz Mirza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Crl. A. 324 of 2011).

Allah Bakhsh Gondal, Advocate Supreme Court for Respondents Nos.2, 5, 6, 8 and 9 (in Crl. A. 324 of 2011).

Ch. Zubair Ahmed Farooq, Additional P.-G., Punjab for the Respondent No.10/State (in Crl. A. 324 of 2011)

Allah Bakhsh Gondal, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Appellants (in Crl. A. 325 of 2011).

Ch. Zubair Ahmed Farooq, Additional P.-G., Punjab for the State (in Crl. A. 325 of 2011)

2017 S C M R 604

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

PAKISTAN STATE OIL COMPANY LTD. (PSO), through Deputy General Manager, Legal Affairs, PSO House, Khyaban-e-Iqbal, Clifton, Karachi---Petitioner

Versus

APPELLATE TRIBUNAL INLAND REVENUE, PESHAWAR BENCH, PESHAWAR through Members and others---Respondents

Civil Petition No. 1638 of 2014, decided on 10th February, 2017.

(On appeal against the judgment dated 10.06.2014 passed by the Peshawar High Court, Peshawar in S.T.R. No. 105 of 2010)

Sales Tax Act (VII of 1990)---

----Ss. 33(2)(cc) & 34---Central Excise Act (I of 1944), S. 9(b)---Afghan Export Policy declared under SRO No.1379-I/2002 dated 07.03.2002---Evasion of Central Excise Duty, Sales Tax and Petroleum Development levy by State Oil Company ("company")---Consignments of petroleum meant for export to Afghanistan clandestinely supplied in the local market---Functionaries of the company raised the defence that it was mischief on the part of the owners of the tankers, to whom the petroleum was entrusted for transportation to Afghanistan---Company deposited the entire amount of evaded taxes, duties and charges in the government treasury to settle the matter and sought withdrawal of proceedings pending before the Additional Collector (Adjudication)---Additional Collector however, imposed on the company a penalty, five times of the evaded amount of Central Excise duty under S. 9(b) of the Central Excise Act, 1944, additional tax at the rate of one percent and penalty at the rate of 3% of the sales tax under Ss. 33(2)(cc) & 34 respectively of the Sales Tax Act, 1990---Legality---Prompt deposit of the evaded levies after its disclosure was nothing but an attempt to prevent the responsible officers of Customs department as well as of the company, who might have acted as facilitators in the commission of the crime, from being subjected to criminal and disciplinary action---Evaded levies may have been promptly returned with the intention to stall further investigation that might have led to involvement of other persons as well as disclosure of other similar acts of evasion---When crime of such a nature was detected then upon being established in appropriate proceedings not only it lead to recovery of the evaded taxes and levies but the perpetrators were to be visited with imprisonment, penalties and fines---In-house disciplinary action was also triggered against the concerned government or semi government functionaries, the facilitation of whom may have been instrumental in the commission of the crime---Burden of penalties and fine, which were imposed on the company, should ultimately be borne by such functionaries of the Customs department and the company who were found to be instrumental in facilitating the evasion of levies---Supreme Court directed that in order to take appropriate action against the persons responsible for letting the evasion take place, the matter should be inquired into by National Accountability Bureau; that the Chairman of the company and Chairman of the Federal Board of Revenue should initiate disciplinary proceedings against their respective officers who may have been instrumental in any manner in the evasion of levies---Petition for leave to appeal was dismissed accordingly.

Samad Mehmood, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Dr. Farhat Zafar, Advocate Supreme Court and Khiyal Muhammad, Deputy Director (Customs) for FBR.

Nasir Mehmood Mughal, Senior Special Prosecutor and Mumtaz Shoukat, A.D. FPSC for the NAB.

2017 S C M R 608

[Supreme Court of Pakistan]

Present: Mushir Alam and Mazhar Alam Khan Miankhel, JJ

Sardar ARSHID HUSSAIN and others---Petitioners

Versus

Mst. ZENAT UN NISA and another---Respondents

Civil Petition No. 2144 of 2016, decided on 26th January, 2017.

(Against the judgment dated 11.05.2016 passed by the Peshawar High Court, Abbottabad Bench in C.R. No. 21-A of 2014)

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

----S. 53-A---Registration Act (XVI of 1908), S. 50(1)---Immoveable property---Rival claimants---'Unregistered sale/dower deed' and 'registered gift deed' in respect of same property---Circumstances in which unregistered sale deed could be given preference over registered deed---Although a registered deed reflecting transfer of certain rights qua a property had sanctity attached to it regarding its genuineness, and strong evidence was required to cast aspersions on its correctness but it could not be given preference over an un-registered deed vide which physical possession of the property had also been given---Section 50(1) of the Registration Act, 1908 also provided that a registered document regarding transfer of certain rights in an immovable property would have effect against every un-registered document relating to the same property and conferring the same rights in the property as shown in the registered document but the law had also provided certain exceptions---Where a person in favour of whom an un-registered deed qua transfer of certain rights in property had been executed, also had possession of the property, he could legally protect his rights in the property and even a registered deed subsequent in time would not affect his/her rights---First proviso to S. 50 of the Registration Act, 1908 provided that such rights in the property could be protected under S. 53-A of the Transfer of Property Act, 1882---Claimant/wife in whose favour property was transferred vide unregistered sale in lieu of dower was also given possession of the same---Report of the Forensic Science Laboratory also confirmed the signatures of her husband/transferor on the said deed---Irrespective of the fact that the rival claimants/petitioners had a registered gift deed in their favour, the same was subsequent in time to the unregistered deed and petitioners had no possession of the property, thus, they could not get any advantage of the same---Besides, the petitioners had claimed the gift in their favour vide the registered deed but the basic ingredients of gift i.e. offer, acceptance and delivery of possession had not been proved by them---Petition for leave to appeal was dismissed accordingly.

Fazla v. Mehr Dina and 2 others 1999 SCMR 837 and Mushtaq Ahmad and others v. Muhammad Saeed and others 2004 SCMR 530 ref.

(b) Constitution of Pakistan---

----Art. 185(3)--- Petition for leave to appeal before the Supreme Court---Scope---Factual controversy---Finding relating to a factual controversy need not be gone into by the Supreme Court unless and until a substantial defect in reading oral or documentary evidence was pointed out.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Hassan Raza Pasha, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Petitioners.

Nemo for Respondents.

2017 S C M R 612

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

HAIDER ABBAS---Petitioner

Versus

FPSC through Chairman---Respondent

Civil Petition No. 2327 of 2016, decided on 24th January, 2017.

(On appeal against the judgment dated 3.6.2016 passed by the Islamabad High Court, Islamabad in F.A.O. No. 18 of 2016)

(a) Civil service---

----Central Superior Services (CSS) Competitive Examination, (2011)---Seat for a 'reserved quota' not taken---Effect---Where a seat allocated to a particular quota was not taken and fell vacant after the training had commenced then it was carried forward to the next competitive examination as a vacancy available against the same quota---Statement of allocation of vacancies for Competitive Examinations-2011 showed that in each group vacancies were to be created on merit quota, women's quota and minorities' quota, depending upon the sufficiency of the 'fraction' available for each of the three categories---Where a vacancy was created for a particular quota of the group, if the candidate to whom it was allocated failed to avail it then it was to be filled by a candidate of the same category and, could not be allocated to a candidate who was eligible from any of the remaining two categories--- Petition for leave to appeal was dismissed accordingly.

(b) Civil service---

----Central Superior Services (CSS) Competitive Examination (2010)---Creation of vacancy in Foreign Service Group on merit quota for Gilgit-Baltistan-FATA region--- Legality--- Statement prepared for allocation of vacancies for Competitive Examination-2010, showed that against 4% quota reserved under recruitment policy for Gilgit-Baltistan-FATA region, eight fresh vacancies for all the groups were created against the total 'fraction' of 8.40 allocated to said region for Competitive Examination-2010---Said 'fraction' was further distributed as 7.14 for merit quota, 0.84 for women's quota and 0.42 for minorities quota---Out of eight fresh vacancies created for all the groups of Gilgit-Baltistan-¬FATA region, seven were allocated to merit quota, based on available 'fraction' of 7.14 and the remaining one vacancy was allocated to women's quota based on available 'fraction' of 0.84---Seven vacancies created for merit quota were further distributed according to the formula whereby one vacancy on merit quota fell to the share of Foreign Service Group, which was accordingly allocated to the successful candidate who appeared in Competitive Examination-2010---Said formula was in consonance with the recruitment policy and the rules for competitive examinations---Petition for leave to appeal was dismissed accordingly.

Petitioner in person.

Sohail Mehmood, DAG, Usman Hayat Gondal, Director Legal and Mumtaz Shoukat, A.D. FPSC for Respondent.

2017 S C M R 616

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Maqbool Baqar, JJ

Haji SHAHID HUSSAIN and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1099 of 2016, decided on 22nd February, 2017.

(On appeal from the judgment dated 17.10.2016 passed by the Peshawar High Court, Peshawar in Crl. Misc. No. 2381-P of 2016)

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

----S. 497---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 34---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating---Bail, refusal of---Accused and co-accused persons allegedly operated a fake travel agency, and collected huge sums of money from people desirous of performing Hajj, and subsequently disappeared with the money collected---Prima facie, accused and co-accused persons were well connected with the crime because no malice or mala fide was attributed to the complainant and other victims, for false implication in the case---Bail was refused accordingly.

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

----S. 497---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 34---Fake 'Hajj' and 'Umrah' operators defrauding people---Bail, refusal of---Supreme Court denied bail to accused persons and directed that the Ministry of Religious Affairs and Inter Faith Harmony, should create awareness in the public, particularly of far flung areas, through wide range publicity, both through electronic and print media, at the District, Tehsil and Union Council level indicating the approved and authorized Hajj and Tour Operators, listed on the approved list of the Ministry with a fixed quota, also indicating that how much money/fee they could collect from each individual; that the Ministry of Religious Affairs and Inter Faith Harmony should update its website in English, Urdu and all local languages, conveniently readable and understandable by illiterate people, showing all the details about the duly approved Hajj and Umrah Tour Operators, warning the public at large that except those mentioned on the website, no other agency or Tour and Hajj Operator was authorized to make booking or collect money for sending people to perform Hajj or Umrah; that the duly authorized/approved Hajj and Umrah Tour Operators shall display on their offices, the authority letter/license number, date of issue, the quota allotted and the amount chargeable by them, permitted by the Ministry of Religious Affairs, and they shall be further made liable to execute a guarantee/indemnity bond that they will publish a booklet/handbill, to be handed over to each applicant, desirous to perform Hajj and Umrah, which shall contain all details of expenses, chargeable and all the facilities , to be provided to them during performance Hajj or Umrah including transport, lodging, boarding, provision of food and other facilities; that any fault or default/negligence on the part of the Ministry of Religious Affairs and Inter Faith, and other concerned official shall be deemed to be a violation of the law and the Constitution and besides departmental action against them, they would be liable to be prosecuted under the law---Petition for leave to appeal was dismissed accordingly and leave was refused.

Ghulam Mohayuddin Malik, Senior Advocate Supreme Court for Petitioners.

Zahid Yousaf Qureshi, Advocate Supreme Court and Zahir Shah, SI for the State.

2017 S C M R 622

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

USMAN alias KALOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.248 of 2011, decided on 24th November, 2016.

(Against the judgment dated 27.01.2011 passed by the Lahore High Court, Lahore in Criminal Appeal No.1981 of 2005 and Murder Reference No.76 of 2006)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Occurrence took place in the dead of the night, i.e. at 11.30 p.m., outside a house, and the investigating officer had stated before the Trial Court that no electric light was available at the spot---In the absence of any source of light at the spot the question regarding identification of the accused had assumed pivotal importance but the prosecution failed to establish the same---Motive set up by the prosecution had not been established---FIR about the alleged incident had been lodged at the spot whereat the local police had arrived on its own after having statedly been informed of the occurrence by a person who had not been produced before the trial court---Witnesses of the ocular account were residents of some other houses and were not inmates of the house where the occurrence had taken place---Said eye-witnesses were, thus, chance witnesses---FIR and statement made by the investigating officer asserted that the accused had been apprehended at the spot, however statements made by eye-witnesses before the Trial Court cast doubt over such assertion---Investigating Officer had categorically stated that after arrest of the accused at the spot he had taken the accused to a hospital for his medical treatment but the medico-legal certificate available on the record showed that the accused had not been brought to the hospital by any police official at all---One of the eye-witnesses had maintained that the deceased had received only one injury at the hands of the accused but the post-mortem examination report showed that the deceased had received as many as eight injuries on different parts of his body---Further the inmates of the house of occurrence, i.e. the mother, wife and children of deceased had never been associated with the investigation of the case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the Trial Court---Pistol allegedly recovered from the accused's custody had not even been sent to the Forensic Science Laboratory---Post-mortem Examination of the dead body had been conducted with a delay of about ten and a half hours and the duration between death and post-mortem examination recorded in the post-mortem examination report was twelve hours---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside in circumstances and he was acquitted of the charge---Appeal was allowed accordingly.

Mir Mohammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

Muhammad Abdul Wadood, Deputy Prosecutor-General, Punjab for the State.

2017 S C M R 626

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Faisal Arab, JJ

S.K. SHAH through LRs---Appellants

Versus

JAMALUDDIN and others---Respondents

Civil Appeal No. 168-K of 2015, decided on 20th February, 2017.

(On appeal against the judgment dated 24.12.2014 passed by the High Court of Sindh, Karachi in R.As. Nos. 255 and 280 of 1991)

Specific Relief Act (I of 1877)---

----S. 8---Suit for recovery of possession and mesne profits---Power of attorney, authenticity of---Proof---Purchaser claimed that he had purchased suit property from the attorney appointed by the owner---Owner alleged that he had never appointed any attorney through a power of attorney, hence the registered sale deed executed by the attorney in favour of purchaser was a fraudulent transaction; that suit property was in possession of his tenants in lieu of monthly rent---Case record clearly showed that monthly rent from the four tenants was being collected by the attorney since their induction as tenants, yet no action was taken by the owner against the attorney either directly or through his other purported representatives---Attorney clearly had possession of the suit property without any protest or resistance from the owner, then constructed shops, inducted tenants, constructed boundary walls and finally on the strength of the irrevocable power of attorney executed a registered sale deed in favour of purchaser--- General power of attorney was allowed to be produced in evidence without any objection from the owner, who only denied its execution---Suit for possession of suit property filed by the purchaser was rightly decreed by Trial Court---Appeal was dismissed accordingly.

Naveed Ahmed Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellants.

Muhammad Iqbal Aqeel, Advocate Supreme Court for Respondents.

2017 S C M R 630

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

MUHAMMAD ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 387 of 2011, decided on 13th December, 2016.

(Against the judgment dated 1.10.2010 passed by the Lahore High court, Lahore in Criminal Appeal No. 1244 of 2004 and Murder Reference No. 688 of 2004)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place in broad daylight and FIR was lodged within 45 minutes of the incident---Place of occurrence was a bazaar (market) full of people and a firearm had been used in the incident, thus, it was not possible for the culprit to have gone unnoticed or unseen---Accused and deceased were real brothers, therefore, there was no reason for the eye-witnesses to falsely implicate the accused in the case---Medical evidence had confirmed the date, time, weapon and locale of the injury stated by the eye-witnesses---Motive for the occurrence was dispute over distribution of property, which was proved by a prosecution witness---Guilt of accused had been established beyond reasonable doubt---Conviction of accused for the offence of murder under S. 302(b), P.P.C. was maintained accordingly.

(b) 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---Guilt of accused had been established beyond reasonable doubt, however, certain mitigating circumstances in the present case warranted caution in the matter of his death sentence---Firstly, son of deceased who was present inside the shop with the deceased at the time of occurrence, had not been produced by the prosecution and he had been given up as unnecessary; secondly, present case was a case of a single fire shot which was not repeated by the accused; thirdly, alleged recovery of the weapon of offence from the accused's custody had been ruled out of consideration by the courts below and a co-accused attributed firing at the spot had been acquitted by the Trial Court; fourthly, according to the FIR itself few days before the incident the deceased, who was also the brother of accused, had an exchange of abuses with their father, and in his capacity as a son the accused must have taken an affront to such abuses and it showed that some act on the part of the deceased himself had contributed towards his murder---Conviction of accused for the offence of murder under S. 302(b), P.P.C. was maintained, however his sentence of death was reduced to imprisonment for life---Appeal was disposed of accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 633

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

(a) Juvenile Justice System Ordinance (XXII of 2000)---

----Ss. 2(b) & 7---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd----Juvenile accused--- Determination of age--- Medical expert, opinion of---

(b) Criminal trial---

----Witness---Statement---Scope---

(c) Juvenile Justice System Ordinance (XXII of 2000)---

----Ss. 2(b) & 7---Juvenile accused---Determination of age---Scope---

2017 S C M R 637

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ

SUO MOTU ACTION REGARDING ELIGIBILITY OF CHAIRMAN AND MEMBERS OF SINDH PUBLIC SERVICE COMMISSION ETC.: In the matter of

Suo Motu Case No. 18 of 2016 and C.M.As. Nos. 7067, 7587, 8198 and 8495 to 8498 of 2016, C.M.As. Nos. 85, 142, 363, 422, 423, 424, 551, 773, 945, 946 and 967 of 2017, decided on 13th March, 2017.

(Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission etc.)

(a) Civil service---

----Efficient civil service system---Significance---Robust and efficient civil service system, allows for smooth governance, whereas a weak and corrupt system disables the government---Without a properly functioning civil service, even the most basic functions and workings of the government become an enormous task.

(b) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), S. 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Nepotism and corruption in selection and appointment process for civil servants---Matter of 'public importance'---Appointments in the civil service had to be made in accordance with the Constitution---Serious challenge to the selection and appointment process was clearly, therefore, a matter of 'public importance'---Suo motu case was disposed of accordingly.

(c) Constitution of Pakistan---

----Arts. 18, 25, 27, 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), S. 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Nepotism and corruption in selection and appointment process for civil servants---Contravention of Fundamental Rights---When through a discriminatory selection process civil servants were selected and appointed, it would infringe Art. 27 of the Constitution which stated that, "No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against"---Article 25 of the Constitution, prescribing the equality of citizens, was another Fundamental Right which was attracted if all those who were tested and interviewed were not treated equally---Present matter also involved the contravention of the Fundamental Right in Art. 18 of the Constitution, which mandates, that, "every citizen shall have the right to enter upon any lawful profession or occupation"---Suo motu case was disposed of accordingly.

(d) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss. 3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Petitioner filed an application before the Supreme Court alleging that the Chairman and Members of the Commission did not have the requisite qualifications for appointment to their posts, and that they had misused their official positions by indulging in nepotism and corruption and not selecting persons for civil service on the basis of merit---Said application was entertained by the Supreme Court as a petition under Art. 184(3) of the Constitution---Plea that petitioner was not personally affected i.e. he was not an 'aggrieved party' or 'aggrieved person', therefore, he could not invoke Constitutional jurisdiction of the Supreme Court---Validity---Sufficient material was available on record to support the allegations that illegalities were committed in the tests and interviews conducted by the Commission, and that the Chairman and Members of the Commission under whose aegis the whole process was conducted were themselves not qualified to hold their posts---Two preconditions stipulated in Art. 184(3) of the Constitution, matter of 'public importance' and of the 'enforcement of Fundamental Rights', were met, therefore, petitioner's application was rightly entertained as a petition under Art. 184(3) of the Constitution---Suo motu case was disposed of accordingly.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 and Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss. 3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Illegalities and discrepancies committed by the Commission in conducting written tests and interviews---Supreme Court observed that the Commission and the Government were obliged to ensure complete transparency in the process of selection and appointment of civil servants; that if qualified and competent individuals were appointed their performance and work would be far superior to the inept allowed in through the back door of nepotism and/or corruption; that tax payers were paying dearly to be served by the best, therefore, if the incompetent or the corrupt made it into the civil service, citizens were deprived of their due; that appointments which disregarded merit, perpetuated bad governance, and drained the public exchequer, and such appointments also eroded the credibility of the Commission and the Government; that the performance of the Government was also adversely affected, the consequences of which were borne by the public, and that those given the responsibility to select the best candidates must discharge the trust reposed in them to the best of their ability and without any fear or favour---Suo motu case was disposed of accordingly.

(f) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss. 3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Written tests and interviews for advertised posts conducted by the Commission---Supreme Court found large scale illegalities and discrepancies committed by the Commission in conducting written tests and interviews, and held that the results of written tests and interviews were not free, fair or transparent---Directions issued by the Supreme Court in this regard detailed.

Supreme Court found large scale illegalities and discrepancies committed by the Sindh Public Service Commission in conducting written tests and interviews for advertised posts, and issued the following directions;

(1) A person of integrity and competence who met the stipulated qualification for appointment as Chairman of the Commission be appointed in terms of Article 242(1B) of the Constitution within two weeks from the date of the announcement of present judgment;

(2) It should be ensured that all Members of the Commission meet the prescribed qualifications;

(3) Persons of integrity and competence possessing the prescribed qualifications should be appointed to the vacant positions of Members of the Commission within four weeks of the announcement of present judgment;

(4) In view of the large-scale illegalities/discrepancies committed in the written tests and interviews of Combined Competitive Examination 2013 ('CCE-2013') the same were set aside and cancelled, however, the screening tests results were not cancelled/set aside;

(5) Fresh written tests for CCE-2013 for the posts as advertised be held as soon as possible after the appointment of the Chairman and Members of the Commission and after the verification of the credentials of the existing/remaining Members;

(6) Only the 2,813 candidates who had earlier taken the written tests of CCE-2013 for the 182 posts be permitted to take the fresh written tests even if in the meanwhile they had crossed the stipulated upper age, and without requiring payment of any additional fee/charge;

(7) When the papers of the written tests were sent for checking/marking the identity of the candidates must be kept anonymous/secret;

(8) The marks of the written tests and results of interviews should be publicly displayed on the Commission's website, on the notice board in its premises and in one Urdu, English and Sindhi newspaper; disclosure should be made of the marks obtained in each subject as well as the cumulative total against the candidates' roll numbers;

(9) All those who obtained the prescribed minimum pass marks in the written tests must be invited for the interview;

(10) The marks allocated for the interview must be allocated to the interviewers equally, however, to avoid a fraction, the Chairman or in his/her absence, the senior most Member, shall have the higher mark rounded off to avoid a fraction;

(11) The Commission shall keep a separate record of the marks awarded by each interviewer and each interviewer should sign and date the same as well as the combined results;

(12) The written tests, their checking/marking, interviews and display of results be completed as soon as was practicable since the matter pertained to CCE-2013;

(13) Candidates should be selected for all the advertised posts, unless they did not pass the written tests and the interview;

(14) The candidates who were selected by the Commission should be offered appointment by the Government as per applicable law, and if any candidate declined, the candidate who was next on the merit list be offered the same.

(15) In future the Government should provide a list of existing vacancies, which should include a list of posts that may become vacant in the foreseeable future and a list of new posts to the Commission every year and by a specified date. Upon receipt of such lists the Commission should start making arrangements for holding of competitive examinations. For the current year (2017) the said lists should be provided by the Government to the Commission within sixty days, upon receipt whereof the Commission should invite applications from interested individuals by placing advertisements, which should also clearly stipulate the legally mandated reserved seats, including those for women and persons having physical disabilities.

Zameer Hussain Ghumro, A.G. and Sohail Ahmed Qureshi, Additional Secretary, S&GAD, Government of Sindh for Government of Sindh.

Shafi Muhammad Shah, Secretary, Sindh Public Service Commission for Sindh Public Service Commission.

Ms. Asma Jahangir, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.A. No. 142 of 2017).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicants (in C.M.A. No. 363 of 2017).

Zulfiqar Khalid Maluka, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Applicants (in C.M.A. No.7587 of 2016).

Shah Khawar, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Applicants (in C.M.A. No. 967 of 2017).

Muhammad Zulqurnain in person (in C.M.A. No. 8498 of 2016).

Dr. Shah Nawaz Mirani in person (in C.M.A. 424 of 2017).

Asif Ali in person (in C.M.A. No. 945 of 2017).

Masroor Ahmed in person (in C.M.A. No. 946 of 2017).

Nasir Mehmood Mughal, Special Prosecutor NAB.

2017 S C M R 662

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

ABID ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 271 of 2012, decided on 2nd March, 2017.

(Against the judgment dated 03.05.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No.226 of 2004, Criminal Revision No. 202 of 2004 and Murder Reference No. 219 of 2004)

Penal Code (XLV of 1860)---

----Ss. 302(b), 452 & 34---Qatl-i-amd, house-trespass after preparation for hurt, common intention---Reappraisal of evidence---Occurrence in the present case had taken place early in the morning in summer season at a time when the day had already broken---Accused was not only an immediate neighbour of complainant but he was also related to the complainant party---Complainant resided in the same house as the deceased and the time of occurrence was such that availability of the complainant in her house at the relevant time was nothing but natural and expected---Statement made by complainant when appearing as a witness was straightforward and confidence inspiring and both the courts below had found it impossible to dislodge her testimony---Said testimony of the complainant had received ample support from the medical evidence---Complainant had no reason to falsely implicate the accused as not only were they neighbours but were also related---Guilt of the accused had been established to the hilt---Accused had already been treated leniently in the matter of his sentence by the High Court, which reduced his death sentence to life imprisonment on the charge of murder---Appeal was dismissed accordingly.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

Rana Abdul Majeed, Additional Prosecutor-General, Punjab for the State.

2017 S C M R 664

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Mir SALEEM AHMED KHOSA---Appellant

Versus

ZAFARULLAH KHAN JAMALI and others---Respondents

Civil Appeal No. 5-Q of 2014, decided on 22nd February, 2017.

(On appeal against the judgment dated 8.03.2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 261 of 2013)

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

----Ss. 55 & 70(b)---Allegation of harassment of polling agents and casting of bogus votes---Proof---General allegations---Failure to produce substantiated evidence of rigging---Effect---Out of 104 polling stations where rigging was alleged the appellant (election petitioner) examined polling agents of 26 polling stations---No evidence was led with regard to the corrupt practices allegedly committed at the remaining 78 polling stations---Polling agents who were examined had admitted in their cross-examination that they did not file any written complaint either with the police or the Election Commission with regard to their expulsion, harassment or casting of bogus votes---Polling agents who stated that they witnessed casting of bogus votes also admitted in their cross-examination that they did not challenge a single vote at the time of polling---Even after the polling was over, the appellant did not approach the Provincial Election Commission to report the alleged corrupt practices---Polling agents of other contesting candidates (other than the appellant and returned candidate) who obtained substantial number of votes were not cited as witness to the alleged corrupt practices---No attempt was made to even call anyone as court witness in order to establish that polling took place in absence of appellant's polling agents or bogus votes were cast---Moreover appellant did not place before the Election Tribunal a comparative table of 104 disputed polling stations and the remaining 276 undisputed polling stations in order to point out any phenomenal difference between the two sets of polling stations with regard to the voting pattern or voter turnout---Election data of the constituency showed that the turnout was only 39.34%---Returned candidate procured 25.88% of the total votes polled---Said figures showed that there was no unusual turnout of voters nor excessive polling in favour of the retuned candidate took place---Merely on unsubstantiated allegations of rigging, the court could not reach the conclusion that returned candidate indulged in illegal and corrupt practices---Evidence that was led by the appellant was so deficient that it was not enough to establish prevalence of corrupt or illegal practices---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)---Corrupt practices---Election material---Seals of bags containing election material found broken---Plea of appellant (election petitioner) that seals of several bags containing election material were found to be broken, which demonstrated that rigging took place---Validity---Any careless or deliberate act on the part of any functionary of the Election Commission whereby the election record could not be adequately preserved and seals were broken would not result in nullifying the election result---Election petitioner had to place on record some reliable material to reach the conclusion that the winning candidate indulged in illegal and corrupt practices otherwise every losing candidate after managing to get the seals of the bags containing election material broken would seek re-polling or re-election---Appeal was dismissed accordingly.

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

----S. 67(3)---Appeal before the Supreme Court against decision of Election Tribunal---Scope---Issues not raised in the memo of appeal---Effect---Mere reproduction of the issues framed by the Election Tribunal in the memo of appeal (filed before the Supreme Court) was not sufficient---When findings given by the Election Tribunal on an issue were not specifically made grounds of attack in the memo of appeal (filed before the Supreme Court) and only raised at the argument stage, the same could not be considered by the Supreme Court

Kamran Murtaza, Senior Advocate Supreme Court for Appellant.

Ahmed Raza Qasuri, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2017 S C M R 669

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Maqbool Baqar, JJ

SOHRAB KHAN MARRI KHUDA BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 153 and 154 of 2012, decided on 15th February, 2017.

(Against the judgment dated 26.02.2010 of the Accountability Court-II, Quetta passed in Criminal Ehtesab Appeals Nos.4 and 5 of 2010)

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iii) & (iv)---Misappropriation of public money---Reappraisal of evidence---Accused was the Collecting Officer of the Market Committee and collected money in the shape of market committee fee on agricultural produce---Accused was alleged to have misappropriated an amount of Rs. 4.2 million with the collaboration and in connivance with his supervising officer/co-accused---Accountability Court sentenced both the accused and co-accused to 5 years' imprisonment with a fine of Rs. 2.1 million each---Validity---Both the Trial Court and the Appellate Court had recorded concurrent findings about the guilt of the accused and co-accused in a conclusive manner based on fair and proper appraisal of evidence---Besides at time of granting leave to appeal to the accused and co-accused by the Supreme Court, their conviction was not challenged but request was made to grant leave to consider the reduction of their sentences---Accused and co-accused had openly misappropriated public money having little regard for the law and the trust reposed in them---Supreme Court maintained the sentence and fine awarded to accused and co-accused by Accountability Court and observed that courts had to apply strict standards and show zero tolerance for corruption and people involved in such type of crimes, and those whose guilt was well established should get the maximum sentence and no mercy should be shown to them---Appeal was dismissed accordingly.

Nemo for Appellant (in Crl. A. No. 153 of 2012).

Haji Shakil Ahmed, Advocate Supreme Court for Appellant (in Crl. A. No. 154 of 2012).

Syed Ali Imran, Spl. Prosecutor, NAB for the State (in both cases).

2017 S C M R 673

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Maqbool Baqar, JJ

AL-TECH ENGINEERS AND MANUFACTURERS---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No. 548 of 2011, decided on 31st January, 2017.

(On appeal from the judgment dated 01.02.2002 passed by the Lahore High Court, Lahore in W.P. No. 6640 of 1997)

Customs Act (IV of 1969)---

----Ss. 21(c) & 31A [as in force on 16.01.1996]---Notification No.SRO 5(I)/1992 dated 06.01.1992---Notification No.SRO No.(1)/1996 dated 16.01.1996---Duty drawback granted on the raw material consumed in the manufacture of exported goods---Accrued and vested rights of exporter---Scope---Past and closed transaction, doctrine of---Scope---Appellant was a manufacturer and exporter of special types of steel nuts, screws and bolts, which were primarily meant for the export market---Vide Notification No.SRO 5(I)/1992 dated 06.01.1992 ("first notification") issued by the Federal Government a benefit was conferred upon the appellant (and other similarly placed exporters) assuring duty drawback upon the raw material consumed in the manufacture of their goods etc which were exported @ 26.75% of their Free On Board (FOB) value---Subsequently, vide Notification No.SRO No.(I)/1996 dated 16.01.1996 ("second notification") the rate of duty drawback allowed on such exported goods was reduced to 7.72 % of their FOB value---Appellant applied for duty drawback on export consignments of his goods shipped after 16.01.1996, the date of issuance of the second notification on the basis that the Letters of Credit in favour of the appellant were opened by the foreign importer before the date of the second notification, i.e. 16.01.1996---Said claims were, however, declined by the customs authorities---Legality---Duty drawback granted by SRO 5(I)/1992 dated 06.01.1992 was in the nature of a concession on the basis of the value of imported material consumed in the manufacture of goods that were exported from Pakistan---Such concession granted under S. 21(c) of the Customs Act, 1969 was not an exemption, therefore, the duty drawback given for exported goods fell outside the purview of S. 31A of the Customs Act, 1969---Resultantly, the principle of past and closed transaction that safeguarded accrued and vested rights of contracting parties applied squarely to the present case---Binding legal commitment made by the appellant to honour his export contracts fixed the date on which he acquired a vested legal right to claim the rate of available duty drawback under SRO No.5(I)/1992 dated 06.01.1992---Binding legal commitment between the appellant and his foreign importer would be established when the parties had taken substantial steps demonstrating adherence to their contract inter se---When the foreign importer of goods manufactured by the appellant had established a letter of credit prior to 16.01.1996 mandating a shipment date within six months its date of issuance, then the benefit under the first notification No.SRO 5(I)/1992 dated 06.01.1992 shall constitute a vested right of the appellant---Supreme Court directed the customs authority to undertake scrutiny of the export documents of the appellant in order to establish the creation of binding legal commitments, if any, between the contracting parties prior to 16.01.1996 in order to extend the appellant benefit of SRO.5(I)/1992 dated 06.01.1992 - Appeal was allowed accordingly.

Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 ref.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG for Respondent No. 1.

Ex parte for Respondent No.2.

Ibrar Ahmed, Advocate Supreme Court for Respondent No.3

2017 S C M R 679

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan and Tariq Parvez, JJ

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

----S. 13--- Suit for pre-emption---Talb-i-Muwathibat and Talb-i-Ishhad---

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

----S. 115---Revisional jurisdiction of High Court---Scope---

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

----S. 115---Revisional jurisdiction of High Court---Scope---

??????????? Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

2017 S C M R 683

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Faisal Arab, JJ

SUO MOTO CASE NO. 19 OF 2016

(Suo Moto action against corruption and corrupt elements working on deputation in the Sindh Coal Authority, Energy Department, Sindh)

AND

CMA NO.7135 OF 2016 IN S.M.C. NO.19 OF 2016

(Complaint against corruption in Sindh Coal Authority/Energy Department filed by Action Committee of the Sindh Coal Authority)

AND

CMA NO. 150-K OF 2017 IN S.M.C. NO.19 OF 2016

(Application for impleadment as intervener in the subject proceedings challenging the appointment/selection of Chief Engineers BS-20 in Sindh Coal Authority, filed by Mr. M. Ali Memon)

AND

CMA NO. 172-K OF 2017 IN S.M.C. NO.19 OF 1026

(Complaint regarding corrupt elements working on deputation in Sindh Coal Authority)

Suo Motu Case No. 19 of 2016 and C.M.A. No. 7135 of 2016 in S.M.C. No. 19 of 2016 and C.M.A. No. 150-K of 2017 in S.M.C. No.19 of 2016 and C.M.A. No. 172-K of 2017 in S.M.C. No. 19 of 2016, decided on 24th March, 2017.

(a) Sindh Coal Authority Act (VI of 1994)---

----Ss. 3, 4, 6(1) & 10---Sindh Government Rules of Business, 1986, Sched. II---Constitution of Pakistan, Art. 184(3)---Suo motu action against corruption and corrupt elements working on deputation in the Sindh Coal Authority and Energy Department of Sindh---Embezzlement--- Illegal appointments--- Sindh Coal Authority ("Authority") was established to explore, develop, process, mine and utilize coal in the Province of Sindh, however, instead of undertaking what the law mandated it to do, it undertook activities which the Sindh Coal Authority Act, 1994 did not permit, and that too without the approval of its Board---Authority could only implement and execute such projects and schemes which were mentioned in the said Act---Authority could not undertake projects/schemes which fell within the domain of different departments of the Government---By adding the prefix 'coal' to a project or a scheme or otherwise juggling words, a project or a scheme could not be executed by the Authority which was not mentioned in the Sindh Coal Authority Act, 1994---Special Initiative Department of the Province, to which the Sindh Government Rules of Business, 1986 had not designated any business, was merely a department in name or an empty shell, nonetheless it had embarked upon undertaking a number of projects and schemes for which it had absolutely no mandate or ability---Authority and the Special Initiative Department together were implementing and executing projects and schemes worth billions of rupees, which were outside their domain---Small group of persons was put in charge of these massive funds, avoiding established methods of checks and balances and circumventing the prescribed manner of implementing and executing of projects/schemes---Authority was executing a number of projects and schemes through its Director General, who was illegally appointed, and a group of retired and/or unqualified persons---By such methodology the long standing and established Government departments, which were designated under the Rules of Business of the Provincial Government to undertake such projects/schemes, were bypassed---Specific persons were illegally appointed or inducted in the Authority and it was through these persons that projects/schemes worth billions of rupees were implemented/executed---Moreover the Authority did not have a functional Board---In such a scenario, in the absence of a functioning Board, where all decisions were taken without the authorization of the Board, the Director General and the Provincial Energy Secretary became all the more responsible and accountable---Authority and Provincial Special Initiative Department asserted that when the projects and schemes were completed they would be transferred to the concerned regular department of the Government and these departments would assume the responsibility for maintaining them; even though such departments had neither formulated, implemented or executed these projects/schemes---When the regular departments had no hand in either formulating or executing the said projects/schemes, question was as to how they would assume the entire responsibility for ensuring they were operating properly and periodically maintained---Supreme Court observed that good governance was not a favour to be bestowed on the people; it was their right.

(b) Sindh Coal Authority Act (VI of 1994)---

----Ss. 3 & 4---Constitution of Pakistan, Arts. 9, 14 & 184(3)---Suo motu jurisdiction of the Supreme Court---Scope---Matter of public importance--- 'Right to life' and 'inviolability of dignity of man'---Scope---Suo motu action against corruption and corrupt elements working on deputation in the Sindh Coal Authority and Energy Department of Sindh---Sindh Coal Authority ("Authority") and Provincial Special Initiative Department implemented and executed projects and schemes worth billions of rupees, which were outside their domain---Present matter was of immense public importance involving the Fundamental Rights of the people---Right to life (Article 9 of the Constitution), included the right to adequate and safe drinking water and basic health care to which a large number of projects/schemes undertaken by the Authority and Provincial Special Initiative Department pertained---Right to live a life with dignity (Article 14 of the Constitution) would be meaningless if the people were deprived of the benefit of projects and schemes that were paid out of the public exchequer---Fundamental Rights of the people were adversely affected when scarce resources were wasted, when there was unnecessary duplication of work, when responsibility was shirked by those executing public works and when it would be very difficult to hold anyone accountable as a result of implementing and executing projects/schemes through an entity or department which the law did not sanction---Supreme Court, therefore, had the jurisdiction under Art. 184(3) of the Constitution to take action on the present matter.

(c) Sindh Coal Authority Act (VI of 1994)---

----Ss. 3, 4, 6(1) & 10---Sindh Government Rules of Business, 1986, Sched. II---Constitution of Pakistan, Art. 184(3)---Suo motu action against corruption and corrupt elements working on deputation in the Sindh Coal Authority and Energy Department of Sindh---Sindh Coal Authority ("Authority") and Provincial Special Initiative Department implemented and executed projects and schemes worth billions of rupees, which were outside their domain and which the law did not sanction---Supreme Court directed that the projects and schemes which had been implemented/executed or those which were being implemented by the Authority, which were not in respect of exploration, development, processing, mining or utilizing of coal in the Province of Sindh, be immediately transferred to the concerned Government department in terms of Schedule II of the Sindh Government Rules of Business; that the projects and schemes which had been implemented / executed or those which were being implemented by the Special Initiative Department be immediately transferred to the concerned Government department in terms of Schedule II of the Sindh Government Rules of Business; that the projects and schemes which were to be transferred from the Authority and Special Initiative Department should be examined, inspected and photographed by the concerned department to which they were transferred and all wrongdoings and/or deficiencies therein should be brought to the notice of the Provincial Chief Secretary, who shall incorporate the same in a report submitted before the Supreme Court; and that an inquiry should be conducted by the Provincial Chief Secretary with regard to all the projects/schemes that were undertaken by the Authority and the Special Initiative Department, and should submit a report in such regard before the Supreme Court---Suo motu action was disposed of accordingly.

Zamir Hussain Ghumro, Advocate-General, Sindh, Rizwan Siddiqui, Advocate Supreme Court, Mukesh Kumar, Advocate Supreme Court for Intervener (in CMA 150-K of 2017), Agha Wasif Abbas, Secretary Energy Department, Sohail Qureshi, Additional Secretary, Services Department, Saeed Qureshi, Focal Person to Chief Secretary, Sindh, Danish Saeed, Director General, Sindh Coal Authority and Muhammad Waseem, Chairman P&D Board in attendance.

2017 S C M R 701

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

KHUDA-E-DAD alias PEHLWAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 281 of 2012, decided on 3rd March, 2017.

(Against the judgment dated 29.12.2011 passed by the High Court of Balochistan, Quetta in Criminal Jail Appeal No. 12 of 2007 and Criminal Revision No. 11 of 2007)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---No motive for the occurrence had been asserted in the FIR as well as in the statements of both the eye-witnesses made before the trial---Admittedly the deceased had himself gone to see the accused at a place where he was already peacefully present---Circumstances in which deceased was shot at had not been seen either by the complainant or the eye-witness and both of them were attracted to the place of occurrence after hearing reports of firing---Alleged recovery of a firearm from the accused's custody during the investigation was legally inconsequential because admittedly the crime-empties secured from the place of occurrence had been sent to the Forensic Science Laboratory after arrest of the accused and after recovery of a firearm from his possession---Prosecution had failed to prove its case against the accused beyond reasonable doubt as far as the allegation regarding murder of deceased---Conviction and sentence of the accused on the charge under S. 302(b), P.P.C. were set aside and he was acquitted of the charge---Appeal was disposed of accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Tahir Iqbal Khattak, Advocate Supreme Court for the State.

2017 S C M R 704

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Manzoor Ahmed Malik, JJ

AMINA BIBI and others---Appellants

Versus

ZAFAR IQBAL and others---Respondents

Civil Appeal No. 610-L of 2009, decided on 22nd August, 2016.

(Against the judgment dated 14.4.2005 of the Lahore High Court, Lahore passed in C.R. No. 1570 of 2001)

Islamic law---

----Inheritance ---Parentage, proof of---Non-appearance of plaintiff in the witness box---Effect---Plaintiff filed a suit claiming that she is the daughter of deceased and therefore was entitled to inherit his estate---Plaintiff died before the conclusion of the trial, thus she could not appear in the witness box---Overwhelming evidence was available on record to prove that plaintiff was the daughter of deceased---Such fact was also confirmed by the maternal nephew of deceased---Besides, there was no rebuttal of the birth certificate which had been brought on the record, duly exhibited and at that time no objection qua its proof was taken by the defendants---Non-appearance of plaintiff or her attorney in the witness box in such circumstances was not fatal to the case of the plaintiffs, because of the overwhelming oral evidence and also on account of the documentary evidence which had not been rebutted by the defendants---Suit filed by plaintiff had been rightly decreed by the High Court---Appeal was dismissed accordingly.

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

Syed Kamil Hussain Naqvi, Advocate Supreme Court for Appellants.

Gulzar Butt, Advocate Supreme Court for Respondents Nos. 1-6.

2017 S C M R 706

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX, COMPANIES ZONE, ISLAMABAD---Appellant

Versus

Messrs PAK SAUDI FERTILIZER LTD.---Respondent

Civil Appeal No. 1338 of 2007, decided on 20th February, 2017.

(On appeal against the judgment dated 14.03.2006 passed by the High Court of Sindh, Karachi in ITR No. 03 of 1994)

Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Second Sched. Pt. 1, Clause 170 [since repealed]---National Funds Bonds---Interest income---Exemption from tax---Company had invested in National Funds Bonds---Interest income on such bonds was exempt under the Income Tax Ordinance, 1979---Company had also borrowed loans from international borrowers and foreign states---Income tax Officer drew an inference that borrowed monies/loans were diverted to purchase the National Funds Bonds to derive tax free income, therefore, he disallowed the interest accrued on the loans in proportion to the interest income derived from the Bonds---High Court found that tax authorities were not justified in confirming disallowance of proportionate interest on the basis that loans obtained by the company were utilized in the purchase of fixed assets and the investment in the National Funds Bonds was made from the capital and unappropriated profits available with the company---Validity---Tax department failed to point any restriction under the law that would have disentitled the company from claiming exemption on the interest income in case there were loans standing against it---Perusal of statement of accounts filed by the company showed that long term loans were obtained by the company prior to the purchase of the Bonds which were to be discharged with interest over a long period of time, hence, independent of the financial obligation against the long term loans, the company made investment in the National Funds Bonds with its own funds generated from its business---Interest income derived thereon was admittedly exempt under the law and had no co-relation whatsoever with the loans---Irrespective of any co-relation between the two, no provision of law provided that mere existence of financial obligation in the form of loans would have disentitled the company from claiming exemption granted under Clause 170 of Second Schedule to Part I of the Income Tax Ordinance, 1979---Appeal filed by tax department was dismissed accordingly.

Dr. Farhat Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Iqbal Salman Pasha, Advocate Supreme Court for Respondent.

2017 S C M R 709

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Sardar Tariq Masood, JJ

HALEEM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 192 to 194 of 2014 and 110 of 2015, decided on 19th October, 2016.

(Against the judgment dated 2.10.2013 passed by Lahore High Court, Lahore in Crl. As. Nos. 1538, 1537, 1631 and M.R. No. 343 of 2011)

Penal Code (XLV of 1860)---

----S. 396---Dacoity with murder---Reappraisal of evidence---No effort was made by the complainant to inform the police and investigating officer, who at his own, arrived at the place of occurrence and recorded the statement of the complainant, upon which a formal FIR was allegedly chalked out---No plausible explanation was given as to why the postmortem was conducted with a delay of more than thirteen hours of the registration of the case---Delayed autopsy indicated that the FIR was drawn up after due deliberation and consultation---Occurrence took place at odd hours of the night and the only source of light mentioned by the witnesses was a lantern---According to site plan, lantern was available at the center of the courtyard but the witnesses furnishing ocular account claimed that the said lantern was hanging with the door of the house--No other source of light was available at the place of occurrence and during investigation no such lantern was taken into possession by the investigating officer---Due to such reason, the identification of the assailants was doubtful especially when the complainant, admitted that in order to trace out the assailants, foot tracker was also arranged---Statement of witnesses of the ocular account was also doubtful for the reason that according to site plan, the assailants fired the shot from a distance of about 22 feet but blackening and burning around the margin of wound indicated that the shot was fired from a very close range and according to the doctor, the shot was fired from within three feet of the victim---Such inconsistency of ocular account with medical evidence, negated the presence of the witnesses at the spot---Both the witnesses made dishonest improvements while making their statements in the court regarding the role of each accused qua snatching of articles from the witnesses---Regarding the recovery of crime empties, the whole prosecution case was silent and only the report of Forensic Science laboratory indicated that some crime empties had been received in the said office---Even otherwise, the report of Forensic Laboratory was inconsequential because the alleged empties were received in the said office much after the arrest of the accused---Although certain cash amount was allegedly recovered from some of the accused persons but the said recovery was also inconsequential as nobody claimed during trial that it was the same amount which was snatched from the witnesses---Prosecution had failed to prove the case against the accused persons---Appeal was allowed accordingly and accused persons were acquitted of the charge.

Ms. Gulzar Butt, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Appellants (in Crl. As. Nos. 192 and 193 of 2014).

Malik Abdul Haq, Advocate Supreme Court for Appellants (in Crl. A. No.194 of 2014).

Ch. Zafar Hussain Ahmed, Advocate Supreme Court and A.H. Masood, Advocate-on-Record (Absent) for Appellants (in Crl. A. No.110 of 2015).

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

2017 S C M R 713

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

MUHAMMAD ISMAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 430 of 2011, decided on 30th January, 2017.

(On appeal from the judgment dated 10.5.2011 passed by the Lahore High Court, Lahore, Multan Bench in Criminal Appeal No. 66 of 2008)

(a) 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---One of the alleged eye-witnesses of the incident had given inconsistent statements, which showed that he had not witnessed the crime--- Except for the statement of the complainant no evidence was furnished by the prosecution to establish the motive for the crime in a reasonable manner---Capital sentence of death awarded to accused under S. 302(b), P.P.C. was reduced to life imprisonment in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Sentence, reduction in--- Mitigating circumstance---Motive not proved---Once the prosecution set up a particular motive but failed to prove the same, then, ordinarily capital sentence of death was not awarded.

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

----S. 302(b)--- Criminal Procedure Code (V of 1898), Ss. 265-E & 265-F--- Qatl-i-amd--- Plea of guilt--- Sentence---Scope---Under S. 265-E, Cr.P.C. the Trial Court in a session case, had the discretion to record the plea of the accused and if he pleaded guilty to the charge, it may convict him in its discretion---Under S. 265-F, Cr.P.C., however, if the Trial Court did not convict the accused on his plea of guilt, it shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution---Such discretion was to be exercised with extra care and caution, and ordinarily on such admission, awarding capital sentence of death should be avoided and to prove the guilt of an accused, evidence of the complainant or the prosecution had to be recorded, in the interest of safe administration of justice.

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

----Arts. 42 & 43---Criminal Procedure Code (V of 1898), S. 364---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Confession of guilt by accused after claiming innocence---Procedure and essential requirements/standards of recording such confession listed.

The most important factors and required standards of recording confession of an accused (after he had claimed innocence) were;

(i) that, the accused was in full senses and understood the consequences of making a confession;

(ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution to be made an approver;

(iii) that, during transit of the accused by the police from the prison to the Trial Court and back, on each "Paishi" no threat or pressure was applied by the escorting police guard or incharge thereof;

(iv) that, actual facts be determined, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;

(v) that, the court recording the confession had to ensure that the mental capacity of the accused was not diminished due to any illness and if some indication of abnormality was suspected by the court, it was better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;

(vi) that, while recording the confession, safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the court. If need be, the counsel who represented the accused, may be given an opportunity to be present inside the court during the whole process, if the accused person, on asking by the Trial Judge, so demanded;

(vii) that, the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he had already pleaded innocence and claimed trial at the time when the formal charge was framed;

(viii) that, the Trial Judge should explain to the accused that, in case of making confession, he had to face a capital sentence in a murder case or any offence punishable with death;

(ix) that, the entire record of all the questions and answers recorded, should be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that.

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

----Arts. 30 & 43---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Admission of guilt---Conviction---Scope---On the basis of admission alone, accused person could not be awarded a capital punishment because admission, as had been defined by Art. 30 of the Qanun-e-Shahadat, 1984, was only a relevant fact and not a proof by itself---Proved, voluntary and true confession as envisaged in Art. 43 of the said Order, alone was proof against the maker---Admission of the accused could not be a substitute for a true and voluntary confession, and it could not be made the sole basis of conviction on a capital charge.

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

----S. 302(b)---Qatl-i-amd---Testimony of solitary eye-witness, reliance upon---Scope---Testimony of a solitary witness, which was found to be true and reliable and was also corroborated by some other evidence, could be made basis for conviction on capital charge.

Dr. Farhat Zafar, Advocate Supreme Court for Appellant.

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

2017 S C M R 722

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Manzoor Ahmad Malik and Khilji Arif Hussain, JJ

NASIR BIN SAEED---Petitioner

Versus

SPECIAL JUDGE CUSTOMS and others---Respondents

Criminal Petition No. 1096-L of 2016, decided on 27th September, 2016.

(On appeal from the order dated 11.8.2016 of the Lahore High Court, Lahore passed in Crl. R. No. 894 of 2016)

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 139, 156(1)(8), 156(1)(70), 157 & 178---Confiscation of passport by Customs authorities---Legality---Accused was charged with possession of foreign currency---Special Judge, Customs granted bail to accused but his passport was retained by Customs authorities---No condition was imposed in the bail granting order, with regard to the surrender of the passport of the accused---Said order was not challenged by the Customs authorities seeking any modification therein---Customs department had not made any application to the Interior Ministry for placing the name of the accused on the Exit Control List---Customs department was unable to point out any law under which the passport of accused could be retained---Supreme Court directed Customs authorities to return the passport of the accused subject to an undertaking, that the accused would present his passport as and when required by the Customs authorities, and the accused shall also submit a surety bond for the sum of Rs.5,00,000/- (Rupees five lacs) to the satisfaction of the Customs authorities that he would not abscond himself---Appeal was allowed accordingly.

Miss Gulzar Butt, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Petitioner.

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for the Collector Preventive.

2017 S C M R 724

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

NASRULLAH alias NASRO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 315 of 2012, decided on 7th March, 2017.

(Against the judgment dated 29.12.2011 passed by the High Court of Balochistan, Quetta in Criminal Jail Appeal No. 11 of 2011 and Murder Reference No. 6 of 2011)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Complainant was not an eye-witness of the alleged occurrence and according to the complainant he had received information about the murder of his sister/deceased on telephone whereafter he went to the house of the deceased, took her deadbody to the hospital and thereafter lodged FIR---Complainant never stated in the FIR that when he had reached the house of the deceased the two eye-witnesses were present in the house at that time or that it was the said eye-witnesses who had informed him of the occurrence through telephone---Alleged eye-witnesses had claimed to have seen the occurrence wherein the deceased had been critically injured but surprisingly the said eye-witnesses had never taken the deceased to the hospital for medical treatment and till the arrival of the complainant at the scene the deadbody of deceased was still lying in the house---Such unusual conduct of the eye-witnesses created doubts in their statements---Both the eye-witnesses lived about eighty kilometers away from the scene of the crime but no particular reason for coming to the house of the deceased at that particular point of time had been stated by them nor any such reason had been established through any independent evidence---Medical evidence contradicted statements of both the said eye-witnesses---Motive set up by the prosecution had not been proved---Alleged recovery of a pistol from the accused's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory showed that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day---Accused could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of death recorded against the accused was set aside and he was acquitted of the charge by extending him the benefit of doubt---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd ---Wife dying an unnatural death in the house---Presumption---Burden of proof---Accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed the murder---Where a wife of a person or any vulnerable dependent died an unnatural death in the house of such person then some part of the onus laid on him to establish the circumstances in which such unnatural death had occurred, however it did not mean that the entire burden of proof shifted to the accused person.

Arshad Mehmood v. The State 2005 SCMR 1524 and Saeed Ahmed v. The State 2015 SCMR 710 ref.

Malik Shakeel-ur-Rehman Khan, Advocate Supreme Court for Appellant.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

Tahir Iqbal Khattak, Advocate Supreme Court for the State.

2017 S C M R 728

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---

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

----S. 497---Bail application---Principles---

Manzoor v. State PLD 1972 SC 81 and Tariq Bashir v. State PLD 1995 SC 34 ref.

(c) Criminal trial---

----Medical report---Scope---

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

----S. 302(b)--- Qatl-i-amd--- Circumstantial evidence--- Conviction---Scope-

2017 S C M R 732

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Faisal Arab, JJ

SHAHAB USTO---Petitioner

Versus

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

Constitution Petition No. 38 of 2016, decided on 16th March, 2017.

(To provide clean drinking water and safe environment to the people of Sindh)

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Sindh Environmental Protection Act (VIII of 2014), S. 5(2)---Sindh Hospital Waste Management Rules, 2014, R. 9(1) & Sched. I---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Right of people to have access to clean drinking water, sanitation and a safe and hygienic environment---Scope---Commission was formed on the directions of the Supreme Court to record findings in regard to providing/supply of clean water to the residents of the Province besides the deteriorating conditions of sanitation---Visuals and footage recorded by the Commission in different cities of the Province graphically showed the actual state of waste and polluted water flowing into canals, channels and the main river, and the resulting environmental hazards and human sufferings---Provincial Government had failed to supply drinkable water , and untreated municipal and industrial sewerage was poisoning water bodies---Dangerous hospital waste was being disposed of without proper management---Supreme Court directed that visuals and footage recorded by the Commission should be sent to the Speaker of the Provincial Assembly who may arrange its viewing in the Provincial Assembly to enable the peoples' representatives/legislators to have a clear view of the prevailing situation in the Province; that the Provincial Government shall appoint a cadre officer as Director General, Sindh Environmental Protection Agency; that a Task Force formed to comply with the recommendations of the Commission shall immediately start its work under the supervision of the Provincial Chief Secretary and shall report to the Commission; that the Commission shall have further powers to ensure compliance of the recommendations made in its report and shall continue taking all steps to achieve the objective for which the Commission was formed; that the Commission shall be at liberty to pass orders as High Court Judge whenever it was necessary in the public interest for achieving the object for which it has been constituted; that all Provincial and Federal Government departments, statutory bodies, agencies, companies under their patronage shall be bound by the directions and orders issued by the Commission; that the Commission may seek information or any detail in regard to any question relatable to water or sanitation problems in any part of the Sindh; that any expense borne by the Commission to undertake its task shall be borne by the Provincial Government; that any order of the Commission during the hearing of present proceedings cannot be appealed before any forum except the Supreme Court and it would be binding on all the Provincial and Federal Government departments and/or their agencies unless reversed or reviewed by the Supreme Court; that the Provincial Government shall be restrained from posting out either the Provincial Chief Secretary and/or any of the members of the Task Force on Water Filtration and Sewerage Treatment Plants from their office without prior approval of the Supreme Court unless a member's three years tenure period was complete---Order accordingly.

(b) Constitution of Pakistan---

----Arts. 9 & 184(3)---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Right of people to have access to clean drinking water and proper disposal of sewage---Scope---Provincial Irrigation Department, negligence of---Irrigation Department was criminally negligent in performing its functions---Irrigation Department had never bothered about the discharge of municipal, medical and industrial waste in the rivers, channels and canals---Such criminal act on part of the Irrigation Department had exposed the residents of the province to different water borne diseases---Residents of the Province were left with no option but to drink polluted and poisoned water---Provision of clean drinking water was the duty of the State, however the functionaries of the State were allowing waste to be tossed into the rivers, canals and channels which the Irrigation Department was required to maintain---Nothing was being done by the Provincial departments though they received huge amounts from the Government for performing their functions---Supreme Court directed that the Provincial Government, especially the Irrigation Department, should immediately minimize the pollution in the arteries used for providing supply of clean drinking water to the public; that a Task Force shall immediately take remedial steps to stop the menace and report its progress to the Commission---Order accordingly.

(c) Karachi Water and Sewerage Board Act (X of 1996)---

----Ss. 3(vii)(b) & 5(2)---Constitution of Pakistan, Arts. 9 & 184(3)---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Right of people to have access to clean drinking water and proper disposal of sewage and waste materials---Scope---Walter filtration and sewage plants---Water and Sewerage Board, negligence of---Water and Sewerage Board ("Board") had failed to fulfil its primary statutory mandate and un-filtered, un-treated and un-tested water was being supplied and the entire sewerage of the Provincial capital was dumped untreated into the sea---Board had around 13,000 employees, but was still not able to fulfil its basic statutory duties and despite the large number of employees, the appalling malfunctioning continued unabated---Taxpayers and citizens of the Provincial capital had paid heavily for setting up water filtration plants and sewerage treatment plants, but the water filtration plants were not properly functioning and the sewerage plants laid derelict---In failing to perform its statutory duty the Board had exposed the residents as well as all visitors to the Provincial capital to water-borne diseases---Dumping of raw sewerage into the sea contaminated the beach and the coast and posed another health hazard---Rivers and other water channels in the Provincial capital had also been rendered open sewers by raw effluents---People were also deprived of the enjoyment of the city's beaches for health and recreation---No monitoring of the quality of the beach water was being carried out---Beaches were also littered with dangerous waste, which the tides deposited on the beach---Board appeared oblivious to the Fundamental Rights of citizens, including the right to have uncontaminated water to drink which could be considered the bedrock to the right to life (Article 9 of the Constitution)---Supreme Court directed that deficient instruments and equipment at water filtration plants which were not very expensive should be immediately procured; that the mechanism whereby the data from all the water filtration plants could be electronically collected and compiled at each plant and also transmitted to a central point should be examined immediately and requisite measures should be taken; that a Task Force shall ensure that all the filter/treatment/sewerage plants in the Province were made functional, and that incinerators installed in Government hospitals for disposal of medical waste were also made functional; that the heads of concerned government departments should personally examine all the water channels/drains that brought and discharged effluents and solid waste into the harbour and the coast, and devise practical, inexpensive and immediate measures from their existing budgets to prevent the pollution of the harbour and the coast---Order accordingly.

(d) Sindh Coal Authority Act (VI of 1994)---

----S. 4---Sindh Government Rules of Business, 1986, Sched. II---Constitution of Pakistan, Arts. 9 & 184(3)---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Reverse osmosis/Water filtration plants ("filtration plants") installed by Provincial Special Initiative Department and the Sindh Coal Authority---Legality---Installation/maintenance of filtration plants was the function of the Public Health Engineering and Rural Development Department under the Sindh Rules of Business, 1986, and such plants did not fall within the domain of the Provincial Special Initiative Department and/or the Sindh Coal Authority---Supreme Court directed that the Provincial Government should withdraw the installation and maintenance work of 'filtration plants' from the Special Initiative Department and/or the Sindh Coal Authority and assign it to the Public Health Engineering and Rural Development Department as mandated by the Sindh Government Rules of Business, 1986; that it will also be the responsibility of the Public Health Engineering and Rural Development Department to maintain the filtration plants; that Secretary of the said departments shall collect details of the filtration plants installed throughout the Province and submit it to a Commission with the details to whether the filtration plants were functional or not---Order accordingly.

(e) Constitution of Pakistan---

----Arts. 9 & 184(3)---Sindh Government Rules of Business, 1986, Sched. II---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Rural Water Supply Scheme ("Scheme")---Said Scheme had been neglected as the Provincial Government had not provided resources to the Public Health Engineering Department, which was meant to execute and maintain the Scheme under the hierarchy of elected bodies of the local government---Supreme Court directed that the Public Health Engineering Department shall be strengthened and provided infrastructure with requisite trained manpower to undertake its job ; that a Task Force notified by the Provincial Government shall remedy the shortcomings in the Scheme and submit periodical reports to a Commission---Order accordingly.

(f) Constitution of Pakistan---

----Arts. 9 & 184(3)---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---North Sindh Urban Services Corporation Limited ("the Corporation')---Mismanagement and non-transparency---Corporation was a government owned company and had been created to improve water supply, sanitation and solid waste management infrastructure in northern parts of the Province---Commission formed on the directions of the Supreme Court had submitted a report where it had found that the Corporation had utterly failed to deliver, and it neither had the expertise nor the skill to cater to the schemes initiated by it---Corporation did not have a regular Managing Director for the last three years---Corporation did not submit detailed accounts, drawn and utilized by it despite directions of the Supreme Court, which implied that the management of the Corporation was not clean and funds were not being utilized in a transparent manner---Supreme Court directed that the Provincial Government should withdraw all municipal functions (i.e. water supply, sanitation and solid waste disposal) of all the cities within the purview of Corporation forthwith and transfer these functions to the Public Health Engineering Department; that the Corporation shall be wound up; that the Corporation shall neither be disbursed nor receive any amount in the future either by the Provincial Government or by the concerned International Development Bank on any count; that the daily wagers or contract employees appointed by the Corporation shall not be paid by the Provincial Government and the employees of Town Municipal Administration should immediately report back to their parent departments; that the Provincial Government should order a forensic audit of the Corporation from the date of its creation, containing the amount it had received either from the concerned International Development Bank or from the Provincial Government or from any other source---Order accordingly.

(g) Sindh Solid Waste Management Board Act (IV of 2014)---

----S. 3 & Preamble---Constitution of Pakistan, Arts. 9 & 184(3)---Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh---Sindh Solid Waste Management Board ("Board")---Sanitary workers who were being paid by the Provincial Government through local government department were required to collect and dispose of solid waste---Provincial Government instead of making improvement in the functions of the local bodies in addition to the budgetary allocation to the local government departments, had introduced the Sindh Solid Waste Management Board Act, 2014, assigning most of the functions which the sanitary workers of the local bodies were to perform and for which they were being paid salaries on regular basis---On one hand the Provincial Government was paying public money towards the salaries of the sanitary workers and on the other hand for the same task it entered into a contract with the foreign company to collect solid waste---Running a parallel organization to perform the same function lead to bad governance and lack of responsibility and accountability---Nothing on record showed that the Board or the local government had even marked and/or allocated any land fill site for disposal of the solid waste which needed to be transported from transit point for disposal to land fill site---Supreme Court directed that the non-functional Board should be dissolved by transferring its functions to the local bodies---Order accordingly.

Petitioner in person.

Zamir Hussain Ghumro, A.G, Sindh, Rizwan Memon, Chief Secretary Sindh, Ms. Sheeren Mustafa, Secretary Planning and Development, Abdul Rahim Somro, Secretary Industries GoS, Sohail Qureshi, Addl. Secretary Service Deptt., Mehmood Shah, Managing Director, NSUSC, Naseer Gillani, Chief Planning Commission, Dr. Azeem Meo, PD, SCIP, Masood Ahmed Jussani, MD, WASA, Misbauddin, Chief Engineer Syed Hashim Raza Zaidi, MD, KW&SB, Saeed Ahmed Qureshi, Focal person to Chief Secretary, Prof. Dr. M. Ahsan Siddiqui, Water Technologist, Tamizuddin Khehro, Secretary Public Health, Muhammad Ramzan Awan, Secretary Local Govt., Arsalan Shaikh, Mayor Sukkur, Amjad Hussain Durrani, Ex-Internal Audit of NSUSC, Nadeem Memon, D.C, District Umerkot, Shoukat Hussain, D.C, District Badin, Nasir Ali, D.C District Thatta, Mohammad Zaman Narejo, D.C District Mithi, Zahid Memon, DC District Mirpurkhas and Khaleeq Ahmed, Advocate Supreme Court in Attendance.

2017 S C M R 798

[Supreme Court of Pakistan]

Present: Amir Hami Muslim, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

FIDA HUSSAIN SHAH and others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Crl. O.Ps. Nos. 47, 48 and 50 of 2016 in C.R.P. 193 of 2013 and Crl. M.A. No.1822 of 2016, decided on 16th February, 2017.

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

----S. 7(b)(ii)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II & Pt. III---Civil Servants Act (LXXI of 1973), S. 10---Civil service---Re-allocation/change of Occupational Group of civil servant after initial appointment---Scope---Allocation and re-allocation was the sole domain of the Government and was made under the Federal Public Service Commission Ordinance, 1977, and not under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Change of group or re-allocation could not be considered at par with transfer or horizontal movement made under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Re-allocation to another occupational group was more akin to the 'initial appointment', as provided in Part-III of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, rather than an 'appointment by transfer'.

Syed Maroof Gilani v. Prime Minister of Pakistan 1996 SCMR 1353 ref.

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

----S. 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II---Civil service---Posting and transfer---Principles relating to posting and transfer of civil servants listed.

Following are the principles relating to posting and transfer of civil servants:

i. It was within the competence of the authorities to transfer a civil servant from one place or post to another to meet the exigencies of service or administration; provided his terms and conditions of service were not adversely affected;

ii. A civil servant had no vested rights to claim posting or transfer to any particular place of his choice, nor did he have any right to continue to hold a particular post at a particular place;

iii. Transfer and posting of civil servant was limited to the given tenure, or at the pleasure of the competent authorities;

iv. Normally, civil servant was not required to acquire any specialized skill or professional training in order to serve at the new post or place;

v. Seniority and progression of career of a civil servant in terms of promotion and other benefits of the service were not affected by the transfer and he remained pegged to his batch or group to which he was initially appointed after completing the required common and specialized trainings and after passing the required departmental examinations conducted by the Federal Public Service Commission;

vi. Civil servant was posted and transferred routinely in the same grade or scale that he possessed in his service or group; unless the rule required so or allowed so.

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

----S. 7(b)(ii)---Re-allocation/change of Occupational Group of civil servant after initial appointment---Principles relating to re-allocation of a civil servant in a new service/group listed.

Following are the principles relating to re-allocation of a civil servant in a new service/group:

i. A civil servant was appointed in a new service or group by competent authority, and he lost his ties with his pervious group or service, though his previous service may be counted, if the rules permitted;

ii. After joining the new service or group he underwent afresh the required departmental/specialized training, followed by the Final Passing Out Examination (FPOE) conducted by the Federal Public Service Commission;

iii. His inter se seniority was re-fixed with the new group or service he joined, normally on the basis of his merit and results obtained in the FPOE;

iv. His appointment, unlike a 'transfer', was thus irreversible, unless the rules allowed him to retain a lien so that he may revert back to his previous service or group within the lien time;

v. Normally 'reallocation' happened when a civil servant reappeared in the CSS examination and his higher merit allowed him to opt for a different occupational group from the one he belonged to;

vi. Some instances of 'reallocation' of civil servants from one to another group, which had been made under the existing rules by the competent authorities, were fundamentally different from the 'appointment by transfer' as the latter involved absorption of civil servant in a new department as a result of abolition of his earlier department or post or for meeting any other exigency, subject to the given rules;

vii. The nature and consequences, if not the form, of the reallocation to another service or group were the same; the civil servant was re-appointed to the new group or service; his seniority was fixed with the new batch in accordance with his overall merit; he lost his ties with his earlier occupational group except that he may claim benefits of the time of service; he underwent and qualified the required specialized trainings and examinations, including the FPOE; and he may be discharged from the service if he failed to successfully complete his probation/trainings and examination.

Kh. Haris Ahmed, Senior Advocate Supreme Court for Petitioners (in Crl. O. 47 of 2016).

Ali Zafar, Advocate Supreme Court for Petitioners (in Crl. O. 48 of 2016).

Ms. Asma Jehangir, Advocate Supreme Court for Petitioners (in Crl. O. 50 of 2016).

Zameer Hussain Ghumro, AG Sindh and Sarwar Khan, Additional AG Sindh on Court's Call.

2017 S C M R 807

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Maqbool Baqar, JJ

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating circumstances---Motive for murder not disclosed to the Court---Effect---

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Motive for murder not disclosed to the Court---Effect---

2017 S C M R 813

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX KARACHI---Appellant

Versus

KHALID TEXTILE MILLS and others---Respondents

Civil Appeals Nos. 1590 to 1598 of 2006, decided on 29th March, 2017.

(Against the judgment dated 1.9.2005/22.3.2006/16.2.2006/ 29.3.2006/8.3.2006/14.4.2006/2.5.2006/5.4.2006/26.4.2006 of the High Court of Sindh, Karachi passed in I.T.R. No. 13/1999, 133/1997, 38/1998, 173/1997, 949/1999, 22/1993, 459/1990, 56/1995 and I.T.C. No.410/1997)

(a) Taxation---

----'Tax credit'---Meaning---Tax credit was an incentive or relief given to the taxpayer, usually for the purposes of promoting certain industries or activities.

(b) Taxation---

----'Tax credit'---Definition.

Black's Law Dictionary (9th Ed.); P. Ramanatha Aiyar's Concise Law Dictionary (4th Ed.) and The Oxford Advanced Learner's Dictionary of Current English (8th Ed.) ref.

(c) Taxation---

----'Tax credit'---Scope---Tax credit was an amount which was directly offset against or adjusted/deducted from the tax liability and not the gross income.

(d) Words and phrases---

----'Exclude'---Meaning.

Chambers 21st Century Dictionary (2007) and The Oxford Advanced Learner's Dictionary of Current English (8th Ed.) ref.

(e) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 23(1)(v), 107 & Third Sched., R. 8(8)(b)---Tax credit for replacement, balancing and modernisation of machinery or plant---Scope---Depreciation allowance, computation of---Tax credit available under S. 107 of the erstwhile Income Tax Ordinance, 1979 (the Ordinance)---Said tax credit was a deduction albeit from the tax payable and being admissible under the Ordinance it clearly fell within the ambit of R. 8(8)(b) of the Third Schedule to the Ordinance---Tax credit available under S. 107 of the Ordinance did fall within the purview of R. 8(8)(b) of the Third Schedule to the Ordinance and thus was to be excluded (i.e. not to be considered) while computing the actual cost of an asset when determining the written down value thereof for the purposes of calculating depreciation allowance.

Gulshan Spinning Mills Ltd. and others v. Government of Pakistan and others 2005 PTD 259 distinguished.

Dr. Farhat Zafar, Advocate Supreme Court for Appellant (in C.A. No. 1590 of 2006).

Muhammad Habib Qureshi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.As. Nos. 1591 to 1594 of 2006).

Muhammad Siddique Mirza, Advocate Supreme Court for Appellant (in C.A. No.1595 of 2006).

Iqbal Salman Pasha, Advocate Supreme Court for Respondents (in C.As. Nos. 1590, 1591, 1593 to 1595, 1597 and 1598 of 2006AH32).

Ex parte for Respondents (in C.As. Nos. 1592 and 1596 of 2006).

2017 S C M R 822

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

HUSNAIN COTEX LIMITED through Chief Executive and others---Petitioners

Versus

COMMISSIONER INLAND REVENUE, LAHORE and others---Respondents

Civil Petitions Nos. 3364 to 3366, 3517 to 3519 and 3147-L to 3149-L of 2016, decided on 26th January, 2017.

(On appeal against the judgment dated 28.04.2016 passed by the Lahore High Court, Lahore in P.T.R. Nos. 69 to 71 of 2014, 364 to 366 of 2013 and 477 to 482 of 2015)

(a) Income Tax Ordinance (XLIX of 2001)---

----Ss. 153(1)(c), 153(3) & 169(b)---Taxpayers falling within domain of 'normal tax regime' and 'final tax regime'---Distinction---Taxpayers who were covered under the 'normal tax regime', were those whose net profit in a tax year was determined by matching costs with the income, after taking into consideration various other factors such as allowances, deductions, depreciations, rebates, amortization etc.---Applicable rate of income tax was then applied to the net profit thus arrived at to determine the tax liability of the tax year---On the other hand taxpayers who fell within the domain of 'final tax regime' by virtue of Ss. 153(1)(c) & 153(3) read with S. 169(b) of the Income Tax Ordinance, 2001, their income tax liability in a tax year was a certain percentage deducted from the payments which were made to them by the contract awarding entity towards the performance of the contract at a rate specified in the First Schedule to the Ordinance---Income tax thus deducted at source fully discharged the taxpayer/contractor from his income tax liability irrespective of what profits and gains he had actually made as the same were of no consideration for the purposes of determining his tax liability.

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss. 53, 153(1)(c), 153(3), 169(b) & Second Sched. Pt. 1, Cl. 126F---Federal Board of Revenue, Circular No. 14 of 2011 dated 6th October, 2011---Income tax, exemption from---Tax relief granted to taxpayers of certain areas of the province of Khyber Pakhtunkhwa, Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) ["affected areas"], whose business suffered on account of internal strife---Scope---Taxpayers falling with domain of 'normal tax regime' and 'final tax regime'---Distinction---Petitioner-companies (Contractors) were not located in the 'affected areas' but were performing contracts in such areas---Petitioners claimed benefit of exemption under Clause 126F of Part I of Second Schedule to the Income Tax Ordinance, 2001, which provided that all profits and gains derived by the taxpayers located in the affected areas stood exempt from income tax for a period of three years---Held, that whole stimulus behind the tax exemption granted under Clause 126F on the face of it was that in the past the businesses located in the affected areas could not make profits on account of adverse business environment, thus it was purely an external factor that diminished the capacity of the businesses to make profits and gains that was germane in granting tax exemption under Clause 126F---Such businesses/taxpayers could only be the ones who fell under the 'normal tax regime'---On the other hand taxpayers such as the petitioners who fell under the 'final tax regime', faced no adverse situation; firstly, they were not located in the affected areas; secondly, they only went to the affected areas when they succeeded in securing contracts, which in itself created business opportunity for them; thirdly, where the contract awarded was to be performed in the areas affected, the same had no impact on contractor's margin of profit which he already incorporated in the contract price, thus the contractor was not affected by any external factor that was not conducive for doing good business---Business environment of the area where contract was to be performed didn't have any correlation with contractor's profit and gains, therefore, the petitioners could not equate themselves with those taxpayers falling under the domain of 'normal tax regime' whose businesses being located in affected areas suffered financially on account of adverse business environment---To extend the benefit of exemption under Clause 126F to category of taxpayers who did not even exist in the affected areas before succeeding in obtaining contracts to be performed there could never have been envisioned by the Legislature while incorporating Clause 126F in the Income Tax Ordinance, 2001---Supreme Court directed that income tax department should proceed to recover the income tax that had been wrongly refunded to any of the petitioners under the exemption---Petition was dismissed accordingly.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Muhammad Iqbal Hashmi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Petitioners (in Civil Petitions Nos. 3366 and 3517 to 3519 of 2016).

Sajid Ijaz Hotiana, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Petitioners (in Civil Petition No.3364 of 2016).

Muhammad Raheel Kamran, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Petitioners (in Civil Petition No.3365 of 2016).

Rana Muhammad Afzal, Advocate Supreme Court and Imtiaz A. Shoukat, Advocate-on-Record (Absent) for Petitioners (in Civil Petitions Nos. 3147-L to 3149-L of 2016).

Nemo for Respondents (in Civil Petition No. 3364 of 2016).

Hafiz Ahsan Ahmed Khokhar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in Civil Petitions Nos. 3365, 3366, 3517 to 3519 and 3147-L to 3149-L of 2016).

2017 S C M R 831

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Major (Retd.) PERVEZ IQBAL---Appellant

Versus

MUHAMMAD AKRAM ALMAS and others---Respondents

Civil Appeal No.1129 of 2013, decided on 10th January, 2017.

(Against order dated 4.4.2012 passed by Lahore High Court, Lahore in W.P. No.3974 of 2005).

(a) Income Tax Rules, 1982---

----Rr. 100, 111, 134, 137, 149, 150, 152, 154, 162(1) & 167(1),----Income Tax Ordinance (XXXI of 1979) [since repealed], S. 93(1)---Civil Procedure Code (V of 1908), S. 12(2)---Tax defaulter---Attachment and auction of property by tax department---Allegation of fraud---Appellant was adjudged a tax defaulter---Certificate to such effect in terms of subsection (1) of S. 93 of the Income Tax Ordinance, 1979 read with R.100 of the Income Tax Rules, 1982 was issued by the Income Tax Officer to the Tax Recovery Officer (TRO), to effect the recovery, by attachment, arrest and sale of the property of the defaulter/appellant---Show-cause notice was served to the appellant under S. 93(1) of Income Tax Act, 1979 read with R.162(1) of the Income Tax Rules, 1982---Appellant admitted that he was arrested and he agreed to pay dues in instalments, which commitment he could not adhere to---Appellant was again arrested and produced before the TRO and, in order to earn his release, the appellant disclosed his property and placed the same at the disposal of TRO for the recovery of tax dues in terms of R.167(1) of Income Tax Rules, 1982---Appellant also authorised the TRO to auction the said property and recover the amount due---Consequently, appellant's property was attached for the second time, in terms of R.137 of the Income Tax Rules, 1982---Attempt made by appellant to obtain stay from civil court failed and the High Court also declined any indulgence to stay the auction---Subject property was auctioned in the year 2001 and respondent was declared the successful bidder---Appellant was fully aware of the auction, but chose not to avail the remedy under Rr. 111, 149 and/or R.150 of Income Tax Rules, 1982, before the hammer was struck down---Appellant belatedly chose to challenge the auction proceedings in the year 2009, and that too in collateral proceedings under S. 12(2), C.P.C.---In terms of scheme of Income Tax Rules, 1982, where no application was made for setting aside the sale of the attached property under R.149 or 150 of the Rules; or where any such application was made and was dismissed, the TRO, in terms of R.152 was obliged, on payment of entire bid amount, to confirm the sale, which then became absolute and consequently TRO was further obligated in terms of R.154 to issue the sale certificate---Respondent being declared successful bidder and having paid the entire bid amount with the gain tax due (payable by the appellant) was denied sale certificate and became victim of brawl between the TRO and Military Estate Officer---Neither the appellant nor any other concerned official filed any application against the auction of the subject property within the contemplation of Income Tax Rules, 1982---Appellant could not question sale on the ground of irregularity in service in terms of R.150 of the Income Tax Rules, 1982, when he himself had authorised the attachment and sale of his property---Any error or irregularity in publishing or conduct of sale of immoveable property in terms of R.134 did not vitiate the sale---Even otherwise, all such grounds, if at all available could have been raised before the forum and hierarchy provided under the Income Tax Rules, 1982 and not in collateral proceedings under S. 12(2), C.P.C.---Appeal was dismissed accordingly.

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

----S. 12(2)---Application under S. 12(2), C.P.C---Maintainability---Special law---Procedure for challenging an action---Where special law provided elaborate mechanism and procedure to challenge a certain action under the scheme of special law, recourse to general law and or challenge to such action, that too through collateral proceedings (such as application under S. 12(2), C.P.C.) was not approved.

Mian Ashiq Hussain, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Mian Asrar ul Haq, Senior Advocate Supreme Court for Respondent No.1.

Tahseen Sadiq, Addl. Commissioner (FBR) for Respondent No.3.

Nemo for Respondent No.5.

2017 S C M R 838

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Sardar Tariq Masood, JJ

Suo Motu Case No. 13 of 2016

(Action against illegalities, contraventions and violations in appointments within NAB)

AND

Civil Misc. Application No. 5811 of 2016

(Application for impleadment of Mirza Sultan M. Saleem and others)

AND

Civil Misc. Application No. 5887 of 2016

(Application by Syed Adil Gillani)

AND

Civil Misc. Application No. 6001 of 2016

(Application of Sr. Shafiq-ur-Rehman son of Sajawal Khan)

AND

Civil Misc. Application No. 6028 of 2016

(Anonymous application regarding illegal appointments in NAB)

AND

Civil Misc. Application No. 6285 of 2016

(Impleadment application by Asad Kharal)

AND

Civil Misc. Application No. 6907 of 2016

(Application by Mirza Sultan M. Saleem)

AND

Civil Misc. Application No. 6980 of 2016

(Impleadment Application by Dr. Shaista Nuzat)

AND

Civil Misc. Application No. 6984 of 2016

(Impleadment Application by Yasir Ali)

AND

Civil Misc. Application No. 7093 of 2016

(Application by Muhammad Arshad Saeed)

AND

Civil Misc. Application No. 7363 of 2016

(Application of Haji Muhammad Tariq Aziz Khokhar)

AND

Civil Petition No. 630-K of 2015

(Abdul Hadi v. NAB and others)

AND

Civil Petition No. 65-Q of 2015

(Mirza Luqman Masud and others v. Chairman NAB and others)

AND

Civil Misc. Application No. 1249 of 2017

(Report by Joint Secretary (D & L), on behalf of Establishment Division)

Suo Motu Case No. 13 of 2016, Civil Miscellaneous Applications Nos. 5811, 5887, 6001, 6028, 6285, 6907, 6980, 6984, 7093, 7363 of 2016 Civil Petitions Nos. 630-K, 65-Q of 2016 and Civil Miscellaneous Application No. 1249 of 2017, decided on 31st March, 2017.

National Accountability Bureau Employees Terms and Conditions of Service Rules, 2002---

----Rr. 1.02, 3.30, 14.01, 14.02 & 14.03---National Accountability Bureau Methods of Appointment and Qualification Rules, 2002, Para. 2, proviso (i) & Sched.---Constitution of Pakistan, Art. 184(3)---Suo motu action against illegalities committed in appointments within National Accountability Bureau ('Bureau')---Different positions in the Bureau were to be filled by persons possessing certain minimal academic qualifications and experience as stipulated in the Schedule to National Accountability Bureau Methods of Appointment and Qualification, 2002 ('Appointment and Qualification Criteria, 2002')---Similar, stringent conditions for promotion were mentioned in the National Accountability Bureau Employees Terms and Conditions of Service, 2002 ('Terms of Service, 2002') and 'Appointment and Qualification Criteria, 2002'---Persons who opted for permanent absorption in the Bureau were required to have the academic qualifications and experience provided in the 'Appointment and Qualification Criteria, 2002'---Said prescribed qualifications were also applicable to the appointments made on transfer basis---When a person was to be inducted in the Bureau from another service he must have the requisite qualifications for appointment---Official who had joined the service of the Bureau could not be allowed to obtain the requisite qualifications for his appointment subsequently after joining service---Chairman of the Bureau could only exercise his powers to relax rules only to the extent that a particular provision or condition "caused hardship" and provided it was "just and equitable"---When a persons did not have the requisite academic qualification for appointment it could not be construed to "cause hardship", therefore, the question of providing "just and equitable treatment" in terms of R. 14.01 of the 'Terms of Service, 2002' would not arise---Besides the Chairman of the Bureau did not have the authority to relax the rules by compromising eligibility and academic qualifications---Persons could not be inducted into the Bureau on the basis of policy of Prime Minister to induct sportspersons into Government departments---National Accountability Ordinance, 1999, 'Terms of Service, 2002' and 'Appointment and Qualification Criteria, 2002' did not vest the Prime Minister with any authority to issue such a sports based policy---Besides pursuant to the said sports policy neither the 'Terms of Service, 2002' nor the 'Appointment and Qualification Criteria, 2002' were amended---Bureau had acknowledged many of the shortcomings and discrepancies in the appointments, inductions and promotions of its officers---Supreme Court directed that a Committee should be formed to examine the issue of officers who lacked the requisite experience at the time of their initial appointment in the Bureau; that officers who had been appointed by way of promotion which was inconsistent with the 'Terms of Service, 2002' and 'Appointment and Qualification Criteria, 2002' should be issued show-cause notices to appear before the Committee, which shall afford such officers an opportunity of hearing and decide their cases; that Director General NAB, (Lahore), Director General NAB, (Balochistan), Director General, NAB (Karachi), and a female officer appointed on basis of sports policy of Prime Minister, were not qualified to hold their respective posts, therefore, they should be de-notified immediately, however, they shall be entitled to all the pensionary benefits to which they were entitled to under the law/rules, and that all the existing vacancies in the Bureau or that may arise in the future pursuant to the Committee's findings shall be filled through the Federal Public Service Commission (FPSC) in the larger public interest, despite the fact that recruitment rules of the Bureau excluded recruitment through the Federal Public Service Commission---Order accordingly.

DCO/Chairman District Recruitment Committee Khanewal v. Kishwar Sultana 2016 PLC 447 distinguished.

Muhammad Akram v. Registrar, Islamabad High Court PLD 2016 SC 961 ref.

Syed Tahir Shahbaz, Secretary, Establishment Division on Court Notice.

Ch. Amir Rehman, Addl. Attorney General for the Federation.

Khawaja Haris Ahmed, Senior Advocate Supreme Court, Waqas Qadeer Dar, PG, NAB and Qamar Zaman, Chairman NAB for the NAB.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Ms. Aliya Rasheed (in C.M.A. 7192/16)

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Maj. (R.) Shehzad Saleem and Maj. (R) Shiraz Naeem.

Ahmed Awais, Advocate Supreme Court for Brig. (R) Farooq Nasir.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Rashid Javid Lodhi, Advocate Supreme Court for Maj. (R.) Shabir Ahmed and Syed M. Husnain.

Khawaja Azhar Rashid, Advocate Supreme Court for Ziaullah Toru.

Dr. Muhammad Ali Saif, Advocate Supreme Court for Zahir Shah.

Raja Imran Aziz, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Adnan Shehzad Asghar, Yasir Mehmood, Muhammad Fahad Khan, Karim Bux and Harmoon Bhatti.

Abdur Rehman Siddiqui, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (in C.M.As. 5811 and 6907 of 2016).

Hashmat Ali Habib, Advocate Supreme Court (in C.M.A. 5887 of 2016).

Shafiq-ur-Rehman in person (in C.M.A. 6001 of 2016).

Asad Kharal in person (in C.M.A. 6285 of 2016).

Sardar Muhammad Aslam, Advocate Supreme Court and Dr. Shaista Nuzat in person (in C.M.A. No. 6980 of 2016).

Nemo (in C.M.A. 6984 of 2016).

Nemo (in C.M.A. 7093 of 2016).

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. 7363 of 2016).

Muhammad Aslam Chishti, Senior Advocate Supreme Court and Zahoor-ul-Haq Chishti, Advocate Supreme Court (in C.P. No. 65-Q of 2015).

Shahid Anwar Bajwa, Advocate Supreme Court (in C.P. No. 630-K of 2015).

Raja Saif-ur-Rehman, Advocate Supreme Court, Muhammad Umer Riaz, Advocate Supreme Court, Riaz H. Rahi, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record and Mir Aurangzaib, Advocate-on-Record/Advocate Supreme Court in attendance.

2017 S C M R 860

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

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

----S. 8---Suit for recovery of possession---Partition of property---Acquiescence by silence/conduct---

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

----Art. 129---Court may presume existence of certain acts---Scope---

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

----Art. 117---Burden of proof---Scope---

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below---Interference in---Scope---

2017 S C M R 868

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Sardar Tariq Masood, JJ

Civil Misc. Applications Nos. 687, 719 and 1551 of 2017

(Interim Reports by AIG Legal for I.G. Punjab, Home Department, Govt. of Punjab and Inspector General of Police, Punjab respectively)

In

Civil Review Petition No. 49 of 2016

AND

Crl. Org. Petition No. 33/2017 in C.R.P. 481/2016 in C.A. No. 184-L/2013

(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in C.A. No. 184-L/2013 and C.R.P. No.481/16)

KHALID MEHMOOD AFZAL---Petitioner

Versus

MUSHTAQ SUKHERA, IG POLICE and others---Respondents

AND

Crl. Org. Petition No. 55/2017 in C.R.P. 482/2016 in C.A. No. 184-L/2013

(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in C.A. No. 184-L/2013 and C.R.P. No.481/16)

Malik MUHAMMAD SABIR---Petitioner

Versus

MUSHTAQ SUKHERA, IG POLICE---Respondent

AND

Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016

(For non-compliance of the orders dated 30.12.2016 passed by this Court in C.R.P. No. 83/16)

AWAIS MALIK and others---Petitioners

Versus

MUSHTAQ SUKHERA, IG POLICE and others---Respondents

AND

Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89/2016

(For non-compliance of the orders dated 30.12.2016 passed by this Court in C.R.P. No. 89/16)

MUHAMMAD HASEEB---Petitioner

Versus

MUHAMMAD AMIN VANS and others

Civil Misc. Applications Nos. 687, 719 and 1551 of 2017 in Civil Review Petition No. 49 of 2016 and Criminal Org. Petition No. 33/2017 in C.R.P., 481/2016 in C.A. No. 184-L of 2013 and Crl. Org. Petition No. 55/2017 in C.R.P. 482/2016 in C.A. No. 184-L of 2013 and Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016 and Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89 of 2016, decided on 29th March, 2017.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition before High Court filed by police officials claiming "out of turn promotion" on account of gallantry/bravery---Maintainability---Withdrawal of "out of turn promotions"---High Court had no jurisdiction to entertain such a petition under Art. 199 of the Constitution--- Concept of "out of turn promotions" was unconstitutional---Police was a disciplined force and officials/officers employed in the police should not have embarked upon unnecessary litigation of claiming "out of turn promotions"; if, however, any police official had a genuine grievance he should have taken the same before the forums that the law provided instead of initiating proceedings before the High Court under Art. 199 of the Constitution---Provincial Inspector General of Police had considered the judgments of the Supreme Court with regard to the "out of turn promotion" cases and issued notices to all concerned officials and gave them opportunity of hearing, whereafter he passed separate detailed orders in respect of each police official---Supreme Court directed that the report of the Provincial Inspector General should be acted upon and notifications with regard to withdrawing the "out of turn promotions" be immediately issued--- Order accordingly.

Contempt Proceedings against Chief Secretary, Sindh 2013 SCMR 1752; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Pervaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

Shakeel-ur-Rehman, AG, Punjab and Barrister Khalid Waheed, Addl. A.-G., Punjab for the Government of Punjab.

Kamran Adil, AIG Legal Police, Punjab for the IG, Punjab.

Khawaja Haris Ahmed, Senior Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record for Appellants/Petitioners (in C.M.As.457/17, Crl. M.A. 490/17 and Crl. O.P. 60/17)

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Qusain Faisal Mufti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Applicant (Akhtar Umar Hayat) (in C.M.A.1755/17)

Ms. Ayesha Hamid, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Crl. O.P. 33/17).

Sardar Ashiq Mehmood Khan Sadozai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Crl. O.P. 55/17)

Ms. Asma Jehangir, Advocate Supreme Court for Petitioner (in Crl. O. P. 62/17)

Talat Farooq Sheikh, Advocate Supreme Court and Jameel Ahmed (in person) on Courts Notice (in Crl. M.As.487-489/17).

2017 S C M R 880

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq Masood, JJ

QURBAN HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 300 of 2012, decided on 8th March, 2017.

(Against the judgment dated 15.09.2011 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeals Nos.222 and 229-J of 2009 and Murder Reference No. 45 of 2009)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence had taken place in broad daylight and the accused had been apprehended with a hatchet immediately after the occurrence inside the house of the eye-witness and thereafter he was produced with the weapon of offence before the local police---First Information Report (FIR) had been lodged quite promptly and the accused had been nominated therein as the sole perpetrator of the alleged murder---Eye-witness was a natural witness of the occurrence being an inmate of the house of occurrence and there was no earthly reason available on the record prompting the said eye-witness to falsely implicate the accused for murder---Eye-witness had made a straightforward statement before the Trial Court which had inspired confidence not only of the Trial Court but also of the High Court---Ocular account furnished by the eye-witness had found full support from the medical evidence---Prosecution had succeeded in establishing the accused's guilt to the hilt---Accused had been rightly convicted under S. 302(b), P.P.C.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to imprisonment for life---Complainant was not an eye-witness of the occurrence and even a prosecution witness had not witnessed the occurrence with his own eyes as both of them had reached the place of occurrence after the injuries had already been caused by the accused to the deceased---Motive set up by the prosecution had not been proved, therefore the real reason for the occurrence remained shrouded in mystery---Alleged recovery of hatchet from the accused's possession was not of much legal consequence because no report of the serologist had been brought on the record confirming that the recovered hatchet was stained with human blood---Accused's conviction for the offence under S. 302(b), P.P.C. was upheld but his sentence of death was reduced to imprisonment for life in circumstances---Appeal was disposed of accordingly.

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

----S. 302(b)---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Motive not proved---When the prosecution asserted a motive but failed to prove the same then such failure on part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.

Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iflikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Inman @ Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 884

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

COLLECTOR OF CUSTOMS, SALES TAX AND CENTRAL NOW FEDERAL EXCISE QUETTA---Appellant

Versus

Messrs HAJI MEHMOOD ESSA CO. and another---Respondents

Civil Appeal No. 286 of 2010, decided on 8th March, 2017.

(On appeal from the judgment of the High Court of Balochistan dated 23.10.2008 passed in Sales Tax Appeal No.2 of 2004)

(a) Taxation---

----Charging section, interpretation of---Scope---No tax could be levied against a person beyond the scope of a charging section and it had to be construed and applied strictly---Before taxing any person, it must be shown that he fell within the ambit of the charging section by clear words used therein---If the case did not fall within the four corners of the charging section, no tax could be imposed by inference, analogy, or trying to probe into the intentions of the legislature.

Zila Council Jhelum v. Messrs Pakistan Tobacco Company Ltd. PLD 2016 SC 398; Gursahai Saigal v. Commissioner of Income Tax AIR 1963 SC 1062; State of Punjab v. Messrs Jullunder Vegetables AIR 1966 SC 1295; Lakshmanah Rao Yadavalli and another v. State of A.P. and others (2013) INSC 1075 and CIT v. Vatilca Township P Ltd. (2015) 1 SCC 1 ref.

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

----Ss. 3 & 4 [as existed in the year 2000-2001]---S.R.O. No.751(I)/99 dated 15.06.1999--- Goods exported to Afghanistan---Sales tax, levy of---Concession of zero rating in respect of exported goods---Scope---Respondent/exporter made certain taxable supplies to Afghanistan during the months of May, June and July, 2000 and March and April, 2001---Department claimed that S.R.O. No.751(I)/1999 dated 15.06.1999 ("SRO") [whereby it was specified that the provisions of S. 4 of the Sales Tax Act, 1990 which envisaged zero % sales tax on taxable supplies (goods) exported from Pakistan] was not applicable to goods exported via route to Afghanistan and that such supplies made by the respondent were subject to tax---Show-cause notice was issued to the respondent stating that on account of such export it was liable to pay sales tax---Held, that S. 4 of Sales tax Act, 1990 provided that certain goods/supplies shall be charged at the rate of zero percent; however, clause (iii) of the first proviso to S. 4, empowered the Federal Government to declare that such section shall not be applicable to a supply of goods which had been exported to a specified country---In such an eventuality, the benefit of S. 4 (i.e. zero rating) would not be available to such supply of goods and the same would be charged at the rate specified in S. 3 of the Sales Tax Act, 1990---Federal Government, in exercise of the powers conferred by clause (iii) of the first proviso to S.4, vide S.R.O. No.751(I)/99 dated 15.06.1999 specified that the provisions of S. 4 of the Act would not apply to goods exported via route to Afghanistan and through Afghanistan to the Central Asian Republics, thus, the said SRO purportedly expanded the scope of the charging section i.e. S. 3, by bringing into the tax net an item/supply which otherwise was not liable to tax---Section 3 of the Sales Tax Act, 1990 was however not applicable to the taxable supplies made by the respondent because in the years 2000 and 2001 the expression taxable supplies "made in Pakistan" was present in S. 3(1)(a) of the Act and sales tax could only be charged upon taxable supplies made in Pakistan and not on exported goods; thus, the first proviso to S. 4 of the Act, notwithstanding its non obstante clause, had no application to the taxable supplies made by the respondent at that point of time and resultantly sales tax could not be levied on such goods---In recognition of such problem the legislature subsequently omitted the words "in Pakistan" from S. 3(a), to bring into the tax net supplies of goods made outside Pakistan---Appeal filed by department was dismissed accordingly.

(c) Taxation---

----Tax levied through a Statutory Regulatory Order (SRO)---Scope---No tax could be levied "automatically" through an SRO until and unless such tax was otherwise leviable under the charging section of a fiscal statute.

Malik Shakeel-ur-Rehman Khan, Advocate Supreme Court for Appellant.

Hadi Shakeel Ahmad, Advocate Supreme Court for Respondents.

2017 S C M R 890

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Mushir Alam, JJ

FEDERAL PUBLIC SERVICE COMMISSION through Secretary---Petitioner

Versus

ANWAR-UL-HAQ (PRIVATE SECRETARY) ISLAMABAD and others---Respondents

Civil Petition No. 1424 of 2016, decided on 30th September, 2016.

(Against the judgment dated 08.2.2016 passed by Federal Service Tribunal, Islamabad in Appeal No. 194(R)CS/2013)

Civil Servants Act (LXXI of 1973)---

----S. 9(1)---Upgradation of post---Scope and purpose---Upgradation was not a promotion---Upgradation was carried out without necessarily to create posts in the relevant scales of pay---Upgradation was resorted to only for the incumbents of isolated posts, which had no avenues or channel of promotion at all---Upgradation under a scheme was personal to the incumbents of the isolated posts, to address their stagnation and frustration on a particular post for sufficient length of service without any progression or avenue of promotion---Upgradation was carried out under a scheme and or a policy to incentivize, encourage and give financial benefits without creating additional vacancies of higher grade---Upgradation by no standards could be treated and or considered as promotion to a higher grade---Incumbent occupying upgraded post retained their substantive grade.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

Abdul Rashid Awan, DAG and Muhammad Ashraf, Director, FPSC for Petitioner.

Ghulam Fareed, Advocate Supreme Court for Respondent No.1.

2017 S C M R 898

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Manzoor Ahmad Malik, JJ

MUHAMMAD ISMAIL and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.89 of 2013, decided on 4th April, 2017.

(Against the judgment dated 29.4.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No.361 of 2003 and Murder Reference No.56 of 2009)

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

----Ss. 302(b), 364, 392 & 411---Qatl-i-amd, kidnapping or abducting in order to murder, robbery, dishonestly receiving stolen property---Reappraisal of evidence---Benefit of doubt---Occurrence had taken place during a night in winter season and according to the FIR the murders in issue had remained unwitnessed---Culprits had been described in the FIR as unknown and before the Trial Court the prosecution had produced some pieces of circumstantial evidence only---Waj-takker evidence was provided by a person who ordinarily resided about 100 miles away from the place of occurrence and the stated reason for his presence in the village of occurrence during the fateful night had remained far from being established through any independent evidence whatsoever---Witnesses who had allegedly seen some of the accused persons throwing dead bodies in a well during the fateful night had displayed unusual or unnatural conduct because on their own showing the said witnesses had, after witnessing throwing of the dead bodies in a well, gone to their own houses and had slept during the night and when they returned to the relevant place in the morning the local police had already reached there---Cash allegedly recovered from the accused persons did not stand connected with the robbed amount---During the alleged recovery of weapons from accused persons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of S. 103, Cr.P.C. had flagrantly been violated---Alleged extra-judicial confession by some of the accused persons was not only unnatural but was also inadmissible in evidence as the extra judicial confession was a joint confession---Prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Convictions and death sentences awarded to accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeal was allowed accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Reappraisal of evidence---Judicial confession before Magistrate, retraction of---Effect---Judicial confession allegedly made by accused persons/appellants before a Magistrate under S. 164, Cr.P.C. had been retracted before the Trial Court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the accused persons' convictions---Convictions and death sentences awarded to accused persons were set aside in circumstances and they were acquitted of the charge of murder---Appeal was allowed accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 364---Qatl-i-amd---Reappraisal of evidence--- Judicial confession before Magistrate---Procedural violations---Record showed that the accused persons had submitted an application before the Trial Court maintaining that they had never been produced before a Magistrate for recording of their confessions and that the confessions attributed to them were bogus---Besides proceedings of recording of the judicial confession deposed about by the relevant Magistrate showed that it had never been mentioned in those proceedings that before recording the confessions the handcuffs of the accused persons had been removed---Statement made by the concerned Magistrate before the Trial Court showed that some police constables did remain in the courtroom at the time of recording of the confessions---Such judicial confession could not be relied upon for convicting the accused persons---Convictions and death sentences awarded to accused persons were set-aside in circumstances and they were acquitted of the charge of murder---Appeal was allowed accordingly.

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court and Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Rana Abdul Majeed, Additional Prosecutor-General, Punjab for the State.

2017 S C M R 902

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Mazhar Alam Khan Miankhel, JJ

Malik BAHADUR SHER KHAN---Appellant

Versus

Haji SHAH ALAM and others---Respondents

Civil Appeal No. 20-P of 2012, decided on 7th March, 2017.

(On appeal against the judgment dated 22.03.2012 passed by the Peshawar High Court, Bannu Bench in Civil Revision No. 106-B of 2011)

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

----S. 55---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---"Time essence of the contract"---Scope --- Seller/defendant agreed to sell the land in dispute to the buyer/plaintiff for a sum of Rs.40,00,000/- vide agreement to sell; that a sum of Rs.20,00,000/- was paid at the time of execution of the agreement while the remaining was agreed to be paid "within one and a half months"---"Time was essence of the agreement" as the words used in the agreement provided that the remaining part of the agreement would be performed within one and a half months---Plaintiff/buyer in his plaint averred that he approached the seller/defendant after expiration of the time stipulated for the performance of the remaining part of the agreement---When the plaintiff/buyer himself clearly averred in the plaint that he approached the seller/defendant after the expiration of the date stipulated in the agreement for the performance of the remaining part of the agreement, it did not lie in his mouth to state in the evidence recorded in the Court that he approached the seller/defendant before such date---Evidence thus led being an outright departure from the pleadings could not be led nor could it be read even if it was led---Supreme Court observed that with the current state of affairs every passing day brought a decrease in the value of the currency and a manifold increase in the prices of the land, thus diluting the import of the words used in the agreement expressing terminus a quo and terminus ad quem could not be approved---Supreme Court directed that since a sum of Rs.20,00,000/- was received by the seller/defendant who at no stage made any effort to return the same, therefore, considering the decrease in the value of the currency and corresponding increase in the prices of the land, the seller/defendant would pay Rs.30,00,000/- over and above Rs.20,00,000/- to the buyer/plaintiff within a period of three months --- Appeal was allowed accordingly.

Razal-ur-Rehman v. Ahmed Saeed Mughal 2004 SCMR 436; Agricultural Development Bank of Pakistan and another v. lmtiaz Ahmed Gill 1999 SCMR 650; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 and Bootay Khan through Legal Heirs v. Muhammad Rafiq and others PLD 2003 SC 518 ref.

Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Seth Essabhoy v. Saboor Ahmed PLD 1972 SC 39 and Abdul Humid v. Abbas Bhai Abdul Hussain Sodawater Wala PLD 1962 SC 1 distinguished.

(b) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Concurrent findings of three courts below---Reappraisal of evidence by the Supreme Court---Scope---Where a finding had been based on misreading, non-reading of evidence, no evidence or even erroneous assumptions of law and facts, mere concurrence of the fora below would not vest it with any sanctity.

Zia ur Rehman, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record (Absent) along with Malik Bahadur Sher Khan for Appellants.

M. Shah Nawaz Khan Sikandari, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (Absent) along with Haji Shah Alam for Respondent No.1.

Ex parte for Respondents Nos. 2 - 5.

2017 S C M R 960

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Benefit of doubt---

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

----S. 302(b)---Qatl-i-amd---Identification of accused by eye-witness in darkness of night---Eye-witness evidence, reliance upon---Scope---

2017 S C M R 965

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Faisal Arab, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another---Petitioners

Versus

BASHIR AHMED, SBA IN MES, MINISTRY OF DEFENCE, GE(ARMY), NOWSHERA---Respondent

Civil Petition No. 935 of 2015, decided on 18th April, 2017.

(On appeal against the judgment dated 24.03.2015 passed by the Federal Service Tribunal, Islamabad in Appeal No.745(P)CS-2013)

Civil service---

----Continuous absence from duty---Major penalty of compulsory retirement---Respondent was serving in the Military Engineering Services, Ministry of Defence---During service respondent was nominated as an accused in a murder case and an FIR was lodged against him---Respondent remained absent from duty without any authorization from the day the FIR was registered against him---Show-cause notice and opportunity of personal hearing was provided to respondent but he failed to appear before the Authorized Officer---Major penalty of compulsory retirement was imposed on the respondent on account of his continuous absence from duty---Service Tribunal had held that on account of murder charges and the enmity with the complainant party, his absence was justified, thus, the major penalty of compulsory retirement was converted into minor penalty of withholding of three increments with reinstatement back in service---Legality---Case record showed that during the period of absence, no attempt was made on behalf of the respondent to apply for leave---Criminal case came to an end and respondent was acquitted on account of compromise reached with the complainant party, nevertheless before reaching the compromise, he was not in custody but remained an absconder and only surrendered before the law after the compromise was reached with the victim's family members---To seek condonation of absence during his absconsion would amount to putting premium on such act---In the present case, if reason provided by respondent was made a ground for condonation of absence, then in every case where the civil servant was involved in a criminal case and absconded, his absence from duty would have to be condoned---Act of absconsion or being a fugitive from law could not be regarded as a reasonable ground to explain absence---Impugned judgment of Service Tribunal was set aside and departmental action of imposition of major penalty of compulsory retirement was restored---Appeal was allowed accordingly.

Central Board of Revenue v. Shafiq Muhammad 2008 SCMR 1666 distinguished.

Syed Nayyab Hassan Gardezi, Assistant Attorney General and Qari Abdul Rasheed, Advocate-on-Record (Absent) for Petitioners.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent.

2017 S C M R 969

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others---Appellants/Petitioner

Versus

Dr. MUHAMMAD ARIF and others---Respondents

Civil Appeals Nos. 2109 to 2139 of 2016 and Civil Petition No. 516 of 2017 and C.M.As. Nos. 5210, 7645 of 2016 in C.A. 2109 of 2016, C.M.A. No. 6094/2016 in C.A. 2136/2016, decided on 13th March, 2017.

(Against the judgment dated 08.06.2016 the Islamabad High Court, Islamabad passed in I.C.As. Nos. 368, 372, 377, 382, 383, 385, 387, 409, 415, 433, 375, 379, 382, 412, 406, 417, 429, 400, 402, 403, 423, 398, 414, 426, 374, 368, 416, 384/2015, C.M.A. 2816/2016 in I.C.A. 384/15 and I.C.A. 411/2015)

Civil Servants Act (LXXI of 1973)---

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 8 & 8-A---Promotion criteria---Award of 15 marks at the disposal of Central Selection Board ("Board") with 5 overriding discretionary marks and placing of civil servants in three different categories for promotion---Recommendations of the Board for deferment/supersession of civil servants---Personal whims and unfettered discretion of Members of the Board---Procedural unfairness and lack of due process---Promotion policy adopted by the Board instead of providing any evaluation structure, left it open for the Board to choose either the service dossier of the officer concerned as a source material for the evaluation of the various essential and crucial attributes of the officer, or just to rely upon the personal knowledge of its members for the said purpose---In relation to the candidate's personality profile it was left exclusively to be evaluated on the basis of the Members' knowledge, without any reference to any record---For an officer to avoid deferment or supersession, it was made essential for a candidate to obtain at least 3 out of the 5 discretionary marks in respect of "integrity/general reputation/perception"---Anomalous situation was created where an officer who may have otherwise, achieved the required threshold on the basis of evaluation of his service record, may still be superseded by the Board on the basis of the opinion harboured or nurtured by a few of its Members, and instead less deserving officer may be recommended, which could result in the degeneration of the civil service, and dissatisfaction and despondency amongst its cadres---Entire promotion process being flawed for want of a well thought out structured objective criteria, and lacking in due process, gave way to arbitrariness, ambiguity and a whimsical approach, inasmuch as the Board drifted from reliance upon the service dossier of the officer, and instead placed reliance on undefined personal opinion, and that too without qualifying it with the necessity of being based on any tangible evidence/material--- Case record showed that some of the petitioners/civil servants achieved the prescribed threshold on the basis of their Performance Evaluation Reports (PERs) and Training Evaluation Reports (TERs), but had been superseded on the basis of knowledge of the Board's Members, but neither any reason was given for ignoring the quantification in the service record, nor the nature and/or source of the so-called knowledge had been disclosed---Such process not only violated the requirement of adequate disclosure, but also offended the principle of fairness, due process and procedural propriety---Even otherwise the Establishment Division had not been able to show any thing adverse against the officers in their respective service dossiers---Case record further showed that in the cases of deferments of certain officers also no plausible explanation or reason had been mentioned---Supreme Court directed that the Establishment Division should place all cases which were laid before the Board through the impugned promotion process, afresh, after withdrawing the overriding effect of five (5) marks assigned for integrity/reputation etc. and removing the deviation of the focus of the Board from the service dossier to the personal knowledge of its Members; that those officers who may have been promoted on the basis of impugned promotion process shall maintain their elevated position/status, however, in the event the officers whose cases for promotion had been deferred or superseded, were through the proposed (new) process recommended for promotion, they shall maintain their seniority vis-a-vis those who were recommended for promotion through the impugned process, and may again be so recommended, so that the seniority of the left out officers and their entitlement to the consequential benefits, including prospects of their future promotion was not adversely affected---Order accordingly.

Orya Maqbool Abbasi's case 2014 SCMR 817 and Iram Adnan's case 2012 PLC (C.S.) 1355 ref.

Afnan Karim Kundi, Additional A.-G. and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As.2109-2118/16).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. 2119/16).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.As. 2120-2124/16).

Faiz Ahmed A. Jandran, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. 2132-2134/16).

Barrister Masroor Shah, Advocate Supreme Court for Appellants (in C.A. 2136/16).

Appellant in person (in C.As. 2135 and 2137 to 2139 of 2016).

Abdur Rehman Siddiqui, Advocate Supreme Court for Appellants (in C.As. 2125-2131/16).

M. Munir Paracha, Advocate Supreme Court for Petitioners (in C.P. 516/17 and C.M.A. 5210/16).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.As. 2110, 2112, 2116/16).

Syeda B.H. Shah, Advocate Supreme Court for Respondents (in C.A. 2109/16).

Mehrban Khan, Admin Officer M/o Defence for Respondents (in 185-187 in C.A. 2135/16).

Barrister Masroor Shah, Advocate Supreme Court for Respondents (in C.As. 2111, 2113, 2118/16).

Afnan Karim Kundi, Additional AGP for Official Respondents (in C.As. 2119-2139/16).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Applicants (in C.M.A. 7645/16).

Imran Fazal, Advocate Supreme Court for Respondents (in C.As. 2121 2129, 2131/16).

Nasir Mehmood Mughal, Spl. Prosecutor NAB for Respondents (in C.As. 2138-2139/16).

2017 S C M R 986

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Manzoor Ahmad Malik, JJ

CRIMINAL APPEALS NOS. 115 AND 116 OF 2013

(On appeal from the judgment dated 30.1.2013 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad in Crl. Appeals Nos. 99 and 100 of 2009)

HASHIM QASIM and another---Appellants

Versus

The STATE---Respondent

CRIMINAL PETITION NO. 161 OF 2013

(On appeal from the judgment dated 30.1.2013 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad in Crl. Rev. No.40 of 2009)

JEHANGIR ELAHI---Petitioner

Versus

SHOAIB AHMED and others---Respondents

Criminal Appeals Nos. 115 and 116 and Criminal Petition No. 161 of 2013, decided on 12th April, 2017.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Case based on circumstantial evidence---Death, sentence, award of---Scope---For placing reliance on circumstantial evidence, in cases involving capital punishment, such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single unbroken chain, where one end of the same touches the dead body and the other the neck of the accused---Any missing link in the chain would destroy the whole and would render the same unreliable for recording a conviction on a capital charge---In cases of circumstantial evidence, there were chances of procuring and fabricating evidence, therefore, Courts were required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the investigators---Where there were apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against the trap of being deliberately misled into a false inference---Court's failure to observe such care and caution would be a failure of justice.

Muhammad Aslam v. The State PLD 1992 SC 254; Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047; Fazal Elahi v. Crown PLD 1953 FC 214 and Lejzor v. The Queen PLD 1952 PC 109 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd--- Reappraisal of evidence--- Retracted confession--- Death, sentence, award of---Scope---Retracted confession, if corroborated by independent evidence of reliable nature, could be made basis for conviction on a capital charge.

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

----S. 164---Confession by accused, acceptance of---Pre-requisites---For accepting a confession, two essential requirements must be fulfilled; first, that the confession was made voluntarily and was based on true account of facts leading to the crime and, second, the same was proved at the trial.

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

----Ss. 302(b) & 120-B---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Confession by accused---Procedural irregularities and illegalities in recording confession of accused---Accused was treated as juvenile by the prosecution itself, and he remained in the custody of the police for many days, however, the recording Magistrate did not provide him sufficient time for reflection to recompose himself---Being a juvenile (minor), it was appropriate and desirable that the accused should have been provided counselling/consultation facility of natural guardian or any close blood relative of mature age, having no clash of interest with him---No such care and caution was observed by the Magistrate in the present case---Furthermore confession of accused contradicted the established facts on record and did not provide any corroboration to the rest of evidence---In the very beginning of his confession, the accused allegedly stated that a conspiracy was hatched by all the accused persons to kill the deceased, however, after such disclosure, the prosecution did not add the penal provision of S. 120-B, P.P.C. which was squarely attracted---Prosecution itself did not relying on such portion of the confession because the date and place, where such conspiracy was hatched, was not known---Magistrate in his certificate had mentioned that the accused gave his statement in his native language which the Magistrate translated into Urdu language---Magistrate had nowhere stated in the certificate or at the trial that he was fully acquainted with or could understand the native language of accused and that the confession was translated word-by-word from the native language to Urdu language---Another important aspect was that the accused subsequently retracted his confession---Keeping in view the conflict with the other pieces of evidence, brought on record, the retracted confession of the accused had lost its evidentiary value and legal efficacy thus, it was absolutely unsafe to rely on it and that too for recording punishment on a capital charge---Prosecution had failed to establish its case against the accused persons, who were acquitted of all charges by extending them the benefit of doubt.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Preamble---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Arrest of accused on pointation of sniffer dogs---Legality---Accused was arrested after a sniffer dog entered into his father's house twice---No provision of Qanun-e-Shahadat, 1984 endorsed with approval said process and procedure, nor such evidence had been made expressly or impliedly admissible---Besides only one dog, out of many entered the house while the remaining stood outside---Case record did not show as to what was the level of training imparted to the dogs---No pointation memo was prepared by the investigating officer about the proceedings---Prosecution had failed to establish its case against the accused persons, who were acquitted of all charges by extending them the benefit of doubt.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Last seen evidence---Chance witness---Last seen evidence was cryptic, infirm in nature and substance, and deserved outright rejection---Witness of last seen evidence by sheer chance came across the accused, who was allegedly accompanied by two unknown persons (co-accused persons) and the deceased---No identification parade was arranged to identify the said two unknown persons through the witness---Said witness was absolutely a chance witness---Recording of his statement under S. 164, Cr.P.C. was a testimony to the fact that probably he was a paid and procured witness---Statement of said witness did not show as to what was the distance of the place where he met the accused from the house of the complainant and the place of crime---Prosecution had failed to establish its case against the accused persons, who were acquitted of all charges by extending them the benefit of doubt.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Motive not established---Motive was set up after the arrest of the accused; if the motive was really in existence, then, in the FIR or at least at a subsequent stage before the discovery of the dead body and arrest of the accused, the complainant might have disclosed it, being a very important factor because on that basis, the investigator would have taken step to interrogate all the accused persons before their actual arrest---Motive was revealed for the first time by some other arrested suspects in the crime and then it was put into the mouth of the complainant---Motive belatedly set up appeared to be self-manufactured with the connivance of the police---Prosecution had failed to establish its case against the accused persons, who were acquitted of all charges by extending them the benefit of doubt.

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

----Ss. 302(b), 367-A & 377---Qatl-i-amd, sodomy---Reappraisal of evidence---Benefit of doubt---Medical evidence---Semen samples---Deceased child was done to death by strangulating him after he was subjected to sodomy, however, to establish the individual participation of each one of the accused, in the crime, it was all the more necessary that samples of semen of the accused should have been sent to chemical examiner with swabs for cross matching---Only one swab in the parcel was found to be stained with the human semen, while the rest were not---No sample of semen was obtained from the three accused for cross-matching---Prosecution had failed to establish its case against the accused persons, who were acquitted of all charges by extending them the benefit of doubt.

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

----Ss. 302(b)---Qatl-i-amd---Medical evidence---Evidentiary value---Medical evidence was only confirmatory or of supporting nature and was never held to be corroboratory evidence, to identify the culprit(s).

Mst. Ehsan Begum v. The State PLD 1983 FSC 204 and Ghulam Abbas v. SHO Police Station City Chiniot Jhang 1996 PCr.LJ 1661 ref.

(j) Criminal trial---

----Acquittal---Benefit of doubt---Scope---Even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts.

Waqar-ul-Islam v. State 1997 PCr.LJ 1107 ref.

Ch. Muhammad Shuaib, Advocate Supreme Court for Appellants (in Criminal Appeal No. 115 of 2013).

Malik Abdul Haq, Advocate Supreme Court for Appellants (in Criminal Appeal No. 116 of 2013).

Mushtaq Ali Tahirkheli, Advocate Supreme Court for Appellants (in Criminal Petition No. 161 of 2013).

Syed Nayyab Hussain Gardezi, A.A.-G. for Federation on Courts' Call.

Mian Arshad Jan, Additional A.-G. Khyber Pakhtunkhwa for the State.

2017 S C M R 999

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Faisal Arab, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and others---Petitioners

Versus

Mst. SARDAR BEGUM and others---Respondents

Civil Petitions Nos. 3195-L to 3198-L, 3268-L, 3269-L, 3352-L to 3358-L, 3570 to 3576, 3603, 3604, 3631, 3669 to 3673 of 2016 and 69-L of 2017, decided on 28th March, 2017.

(On appeal against the judgment dated 14.10.2016 passed by the Lahore High Court, Lahore in F.A.O. Nos. 213 to 216, 218, 239 to 258 289 to 292 of 2015)

(a) Insurance Act (IV of 1938) [since repealed]---

----Ss. 2(6) & 46---Civil Procedure Code (V of 1908), Ss. 15 & 20---Claim relatable to a contract for insurance---Correct Court/forum for suing under the provisions of the Insurance Act, 1938 [since repealed]---All claims, whether directly arising from or relatable to a contract of insurance were covered under the provisions of S. 46 of the Insurance Act, 1938---Section 46 of the Insurance Act, 1938 provided that for any relief arising from the contract of insurance, suit was to be filed in the Court of competent jurisdiction, then taking aid from the provisions of S. 20, C.P.C. and keeping in view the pecuniary value of the suit, it was to be filed in a District Court of competent jurisdiction---In the case of principal seat of the Sindh High Court at Karachi or Islamabad High Court, both possessed jurisdiction to act as the principal Civil Court of original jurisdiction, thus suit arising from contract for insurance could be filed in said High Courts subject to territorial jurisdiction and pecuniary value of the suit prescribed under the law instead of the District Court---However, no suit relatable to a contract for insurance could be entertained in the Civil Court---Where a special law determined a place of suing, which in the present case in terms of S. 2(6) of Insurance Act, 1938 could be either the principal Civil Court of original jurisdiction in a district or the special civil jurisdiction of the Sindh High Court and Islamabad High Court, the same would prevail over the provisions of S. 15, C.P.C.---Where, however, a claim was not relatable to a contract of insurance and for some other reason a person sued the insurance company, then obviously the forum provided under the Insurance Act, 1938 would have no application to such suits---For such suits, the provisions of S. 15, C.P.C., where attracted could be applied.

(b) Interpretation of statutes---

----Provisions of special law override the provisions of the general law to the extent of any conflict or inconsistency between the two.

(c) Appeal---

----Right of appeal was creation of statue and where the legislature did not provide for it, the same could not be claimed as an inherent right.

Syed Waqar Hussain Naqvi, Advocate Supreme Court for Petitioners (in C.Ps. 3195-L to 3198-L/2016).

Ibrar Ahmed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. 3268-L, 3269-L, 3669 to 3673/2016 and 69-L/2017).

Jehanzeb Khan Bharwana, Advocate Supreme Court for Petitioners (in C.Ps. 3352-L to 3358-L/2016).

Rana Muhammad Ibrahim Satti, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Safdar Ali Qureshi, Law Officer, State Life Insurance Corporation for Petitioners (in C.Ps. 3570 to 3576, 3603, 3604 and 3631/2016).

Liaqat Ali Butt, Advocate Supreme Court for Respondents (in C.P. 3195-L/2016).

Nemo for Respondents (in All C.Ps. except C.P. 3195-L of 2016).

2017 S C M R 1006

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Messrs SQUIBB PAKISTAN PVT. LTD. and another---Appellants

Versus

COMMISSIONER OF INCOME TAX and another---Respondents

Civil Appeals Nos. 622, 623 of 2008, 1403 and 1404 of 2009, decided on 26th April, 2017.

(Against the judgment dated 24.10.2007/8.5.2009 of the High Court of Sindh, Karachi passed in I.T.As. Nos. 1114, 1115 of 1999, 485 and 486 of 2000)

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 133---Income Tax Ordinance (XXXI of 1979), S. 136 [since repealed]---Indian Income Tax Act (11 of 1922), S. 66 [since repealed]---Indian Income Tax Act (VII of 1918), S. 51 [since repealed]---Taxes Management Act 1880 [43 & 44 Vict. Ch. 19], S. 59 [since repealed]---Reference before High Court---Scope---Question as to whether new questions of law not urged or examined by the lower fora (Tribunal) could be raised in a reference before the High Court---History and background of provisions of different statutes from Pakistan, India and the United Kingdom relating to the subject of 'reference before the High Court', and how they were interpreted by the courts, discussed.

Tata Iron and Steel Company Ltd. v. The Chief Revenue Authority of Bombay AIR 1923 PC 148; Raja Bahadur Sir Rajendra Narain Bhanj Deo v. Commissioner of Income Tax, Bihar and Orissa AIR 1940 PC 158; Ishar Das Dharamchand: In the matter of AIR 1926 Lah. 168; P. Thiruvengada Mudaliar: In the matter of AIR 1928 Madras 889; A.K.A.C.T.V. Chettyar Firm v. Commissioner of Income Tax, Burma AIR 1928 Rangoon 281; S.A. Subbiah Iyer v. Commissioner of Income Tax, Madras AIR 1930 Mad. 449; Commissioner of Income Tax, Burma v. P.K.N.P.R. Chettyar Firm AIR 1930 Rangoon 78; Gurmukh Singh v. Commissioner of Income Tax, Lahore AIR 1944 Lah. 353 (2); The Commissioner of Income Tax, Bihar and Orissa v. Maharajadhiraja Kameshwar Singh of Barbhanga (1933) 1 ITR 94; National Mutual Life Association of Australasia, Ltd. v. Commissioner of Income Tax, Bombay Presidency and Aden AIR 1936 PC 55; Messrs A. Abboy Chetty and others v. Commissioner of Income Tax, Madras AIR 1948 Mad. 181; Commissioner of Income Tax, Excess Profits Tax, Madras v. Modern Theatres Ltd. AIR 1952 Mad. 255; Commissioner of Excess Profits Tax, West Bengal v. Jewanlal Ltd. Calcutta (1951) 20 ITR 39; Chainrup Sampatram v. Commissioner of Income Tax, West Bengal (1951) 20 ITR 484; Maharaj Kumar Kamal Singh v. Commissioner of Income Tax (1954) 26 ITR 79; Commissioner of Income Tax B and O v. Ranchi Electric Supply Co. Ltd. Ranchi AIR 1955 Pat. 151; Madanlal Dharnidharka v. The Commissioner of Income Tax, Bombay City AIR 1940 Bom. 24; Commissioner of Income Tax, Delhi v. Punjab National Bank Ltd. Delhi (1952) 21 ITR 526; Mohanlal Harilal v. Commissioner of Income Tax C.P. and Berar, Nagpur (1952) 22 ITR 448; R. S. Munshi Gulab Singh and Sons v. Commissioner of Income Tax, Punjab PLD 1950 Lah. 476; The Scindia Steam Navigation Co. Ltd. v. The Commissioner of Income Tax PLD 1959 Kar. 527; Abdul Ghani and Co. v. Commissioner of Income Tax PLD 1962 Kar. 635; Pakistan through the Commissioner of Income Tax, Karachi v. Messrs Majestic Cinema, Karachi PLD 1965 SC 379; Messrs Sutlej Cotton Mills Ltd., Okara v. The Commissioner of Income Tax, North Zone (West Pakistan), Lahore PLD 1965 SC 443; Messrs Hunza Asian Textile and Woolen Mills Ltd. v. Commissioner of Sales Tax, Rawalpindi Zone, Rawalpindi 1973 PTD 544; Walayat Flour Mills, Lyallpur v. Commissioner of Income Tax, Rawalpindi 1973 PTD 530; Collector of Customs E & S.T. and Sales Tax v. Pakistan State Oil Company Ltd. 2005 SCMR 1636; Towellers Ltd. through Chief Operating Officer v. Government of Pakistan Represented by Member Sales Tax Central Board of Revenue, Islamabad and another 2006 PTD 310; Haseeb Waqas Sugar Mills Ltd. v. Government of Pakistan and others 2015 PTD 1665; Director, Intelligence and Investigation (Customs and Excise), Faisalabad and another v. Bagh Ali 2010 PTD 1024; Army Welfare Trust (Nizamupur Cement Project), Rawalpindi and another v. Collector of Sales Tax (Now Commissioner Inland Revenue), Peshawar 2017 SCMR 9; Attorney General v. Avelino Aramayo and Company [1925] 1 KB 86 and Aramayo Francke Mines, Limited v. Eccott [1925] A.C. 634 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 133---Reference before High Court---Scope---Question as to whether new questions of law not urged or examined by the lower fora could be raised in a reference before the High Court---Section 133 of the Income Tax Ordinance, 2001, ("the Ordinance") did not impute any extraordinary limitations on the type of questions which may be posed in a reference before the High Court---Facts as stated in the Tribunal's order had to be taken as recorded and any question which could be made out from those facts may be raised in a reference under S. 133 of the Ordinance, regardless of whether it was previously urged or not---No reason existed for confining the questions which may be referred to only those which were argued before the Tribunal on the hypothesis that this was an advisory jurisdiction as that was not what the language of S. 133 of the Ordinance contemplated---Law, as it presently stood, allowed all questions "arising" out of the order of the Tribunal to be referred to the High Court and not just questions "argued" or "raised" before the Tribunal.

(c) Income Tax Ordinance (XLIX of 2001)---

----S. 133---Reference before High Court---Nature---Remedy of reference before the High Court under S. 133 of the Income Tax Ordinance, 2001 was appellate in nature and must be construed and applied as such.

(d) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 79 [as it stood prior to the Finance Act (VII of 1992)]---Income from transactions with non-resident---Pre-requisites for application of S. 79 of the Income Tax Ordinance, 1979 ("the Ordinance")---According to S. 79 of the Ordinance, the Income Tax Officer was to determine the amount of profits which may reasonably be deemed to have accrued to the resident and include such amount in the total income of the resident if four elements were present in a transaction; first, that there was a resident and a non-resident; second, that there was a close connection between them; third, that business was carried on between them; and, fourth that the course of business was so arranged that the business transacted between them produced to the resident either no profits, or less than the ordinary profits which might be expected to arise in that business---For the Income Tax Officer to exercise powers under S. 79 of the Ordinance, all the said elements were required to be present---Absence of any one of elements rendered the section inapplicable to a case.

(e) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 79 [as it stood prior to the Finance Act, 1992]---Income from transactions with non-resident---Pre-requisites for application of S.79 of the Income Tax Ordinance, 1979 ("the Ordinance")---Burden of proof---Scope---'Transfer pricing', concept of---Scope---For the Income Tax Officer to exercise powers under S. 79 of the Ordinance, one of the elements/pre-requisites that had to exist was that the course of business was so arranged that the business transacted between the resident and non-resident produced to the resident either no profits, or less than the ordinary profits which might be expected to arise in that business---Said element clinched the issue of transfer pricing---Where the pricing of transactions between closely connected parties was not at arm's length, it may result in reduced (or no) profit for the resident taxpayer, thus the tax authorities were empowered under S. 79 of the Ordinance, to adjust the profit upwards and impose tax accordingly---In order to invoke S. 79 of the Ordinance, the Income Tax Officer had to see whether prima facie, the course of business was so arranged between the closely connected resident and non-resident that the business transacted between them produced to the resident less than the ordinary profits which might be expected to arise in that business---For such purpose the Income Tax Officer needed to base such prima facie opinion upon evidence gathered in a reasonable investigation showing that his proposed method of pricing was the most appropriate for determining the arm's length transfer price---Burden would then shift to the taxpayer to establish that the transfer price of the transaction with its closely connected non-resident was indeed at arm's length based upon another pricing method which was more appropriate in the facts and circumstances of the case; this was to be proven from inter alia the transfer pricing documentation.

(f) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 79 [as it stood prior to the Finance Act (VII of 1992)]---Income from transactions with non-resident---Pre-requisites for application of S. 79 of the Income Tax Ordinance, 1979 ("the Ordinance")---Tax officer failing to establish that course of business was so arranged between the resident and non-resident companies that the business between them produced to the resident less than the ordinary profits expected to arise in such business--- Effect--- Appellant-companies were resident companies (registered in Pakistan) engaged in the import, manufacture and sale of pharmaceutical products--- Appellants imported pharmaceutical raw material from their parent companies (foreign companies)---Raw material imported by appellants from their foreign parent companies was priced higher than that charged by other sources for similar products---Assessments for appellants were finalized by making additions under S. 79 of the Income Tax Ordinance, 1979 ("the Ordinance") on account of the difference between the price of raw material imported by the appellants from their parent companies and that imported by some other companies from other sources---High Court had upheld the addition under S. 79 of the Ordinance---Contentions of appellants were that the raw materials imported from foreign parent companies at a higher value than that paid for by some other companies was due to the superior nature and quality of the raw material; that there was no manipulation and arranged dealing between the resident (appellant companies) and non-resident (foreign parent companies) as required by S. 79 of the Ordinance---Validity---Income Tax Officers failed to show that the course of business was so arranged between the closely connected resident (appellants) and non-resident (parent companies) that the business transacted between them produced to the resident less than the ordinary profits which might have been expected to arise in that business---Income Tax Officers merely tabulated the differences in the import prices without giving any precise details regarding the parallel cases upon which he placed reliance nor did he provide any prima facie justification that the pricing method adopted (if any) by him was the most apt in the peculiar facts and circumstances of the case---Reason cited by the Income Tax Officer that the raw materials imported by parallel companies from other sources fulfilled the requirements, as laid down in the relevant law on drugs and cleared by the Assistant Drugs Controller, was not sufficient to establish prima facie transfer mispricing---Various factors affected the price of a product and mere approval of some authority may mean that it (the product) had met the minimum specifications for the ingredient laid down in law but it did not necessarily mean that the said products could be treated at par with the goods imported by the resident companies for the purposes of pricing---Income Tax Officer had not conducted a reasonable investigation or offered prima facie evidence based on an appropriate pricing method adopted by him, thereby showing transfer mispricing and resultant depletion in profits of the resident (appellant) companies---Income Tax Officer had, therefore, erred in invoking S. 79 of the Ordinance, and adjusting the profit of the resident (appellant) companies---Appeal was allowed accordingly and addition made under S. 79 of the Ordinance was set aside.

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Appellants (in C.As. Nos. 622 and 623 of 2008).

Dr. Farhat Zafar, Advocate Supreme Court for Appellants (in C.As. Nos. 1403 and 1404 of 2009).

Muhammad Siddique Mirza, Advocate Supreme Court for Respondents (in C.As. Nos. 622 and 623 of 2008).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents (in C.As. Nos. 1403 and 1404 of 2009).

2017 S C M R 1062

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

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

----O. I, R. 10 & O. XXII, R. 10---Application for impleadment as necessary and proper party---Scope---

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

----O. I, R. 10---Application for impleadment as necessary and proper party---Scope---

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

----S. 42---Suit for declaration---Decree---Scope---

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

----S. 42---Suit for declaration---Decree---Scope---

Mst. Muhammadi v. Ghulam Nabi and others 2007 SCMR 761 ref.

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

----S. 42--- Suit for declaration--- Unnecessary litigation---Compensation---

2017 S C M R 1098

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Umar Ata Bandial, JJ

ASSOCIATION FOR THE WELFARE OF OWNER AND STAFF OF QINGQI (CHINGCHI) RICKSHAW, SINDH and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary Transport, Government of Sindh, Karachi and others---Respondents

Civil Petitions Nos. 423-K and 472-K of 2015, decided on 29th March, 2017.

(On appeal against common Judgment dated 05.08.2015 passed by the High Court of Sindh, Karachi, in Constitutional Petitions Nos. D-4753 and D-4166 of 2013 etc.)

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 23, 29 & 44---Provincial Motor Vehicles Rules, 1969, Rr. 197 & 197-A---Qingqi motorcycle rickshaw ("Qingqi rickshaw")---Said rickshaws were plying on the roads without any fitness certificate, route permits and registration certificates from the Provincial Transport Authorities---State was required to ensure as its bounden duty that all public transport vehicles including Qingqi rickshaws were constructed and manufactured by duly authorized manufacturers according to legally specified design, specifications and standards, and further that they were fit to ply on roads and were registered with the sanctioned route permit, driven by a duly licensed driver---Supreme Court directed that all Provincial Transport Authorities of the country shall ensure that only those Qingqi Rickshaws were plying on the roads which were constructed and manufactured by duly registered and authorized manufacturers, according to legally approved design, specifications and standards ensuring safety and convenience of not only the driver but also of its passengers; that all Qingqi rickshaws shall obtain certificate of fitness and certificate of road worthiness from the concerned authorities which shall be displayed on each Qingqi rickshaw; that all Qingqi rickshaws shall be duly registered with the relevant Excise and Taxation Department and their registration number shall be displayed on it; that the approved rate of charges/fare for specified routes shall be displayed on all Qingqi rickshaws; that the seating capacity of Qingqi rickshaws, allowed to be plied on roads, shall not be more than four passengers excluding its driver; that driver of a Qingqi rickshaw shall have a valid driving licence; that in case, any Qingqi rickshaw was found to be plying on the roads without fulfilling the said conditions, the official(s) of the relevant Departments shall be proceeded against not only departmentally but also on the criminal side---Petition was disposed of accordingly.

Nasir Rizwan Khan, Advocate Supreme Court, Mrs. Abida Parveen Channer, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record and Abdul Saeed Khan Gohri, Advocate-on-Record (Absent) for Petitioners.

Shehryar Qazi, Additional A.-G., Manshad Ali, Secretary RTA, Ijaz Ahmed Hashmi, S.P. Traffic, Karachi and Dara Ghani, Excise and Taxation Department for Government of Sindh.

Razzaq A. Mirza, Additional A.-G. and Muhammad Iqbal, Secretary Provincial Transport Authority for Government of the Punjab.

Muhammad Ayaz Khan Swati, Additional A.-G. for Government of Balochistan.

Abdul Lateef Yousafzai, A.-G. and Mazhar Sajjad, Additional Secretary Transport for Government of Khyber Pakhtunkhwa.

Muhammad Munsif Jan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record (Absent) for Applicants (in C.M.A. 759-K of 2015).

Waqar A. Sheikh, Advocate Supreme Court and Imtiaz A. Shoukat, Advocate-on-Record (Absent) for Applicants (in C.M.As. 1799 and 1800 of 2017).

Shahzada Mazhar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.A. 1805 of 2017).

Nemo for Applicants (in C.M.A. 1007-K of 2015).

2017 S C M R 1110

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Dost Muhammad Khan, JJ

(a) Gift---

----Validity---Essential requirements for a valid gift stated.

(b) Gift---

----Oral gift---Donee, a minor---Effect---

(c) Gift---

----Pardanasheen lady---Gift by an illiterate village lady---Principles---

Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Phool Pir Shah v. Hafeez Fatima 2016 SCMR 1225; Ghulam Farid v. Sher Rahman through LRs 2016 SCMR 862; Ghulam Farid and others v. Muhammad Bakhsh and others 2008 SCMR 1201 and Mian Allah Ditta through LRs v. Mst. Sakina Bibi 2013 SCMR 868 ref.

2017 S C M R 1131

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

DEFENCE HOUSING AUTHORITY (DHA) LAHORE---Appellant

Versus

SECRETARY COOPERATIVE DEPARTMENT GOVERNMENT OF PUNJAB and others---Respondents

Civil Appeals Nos. 940 to 942 of 2007, decided on 14th April, 2014.

(On appeal against the judgment dated 17-4-2006 passed by the Lahore High Court, Lahore, in Writ Petitions Nos. 22801, 22802 and 22803 of 1999)

(a) Co-operative Societies Act (VII of 1925)---

----Ss. 54, 54-A, 64 & 64-A---Arbitration---Revisional power of Registrar to call for proceedings of subordinate officers and to pass orders thereon---Scope---Dispute over allotment of plots---Plots allotted to the respondent were cancelled by the Managing Committee of the appellant-housing society---Respondent challenged the cancellation order by filing petitions before the Registrar Co-operative Societies---Both the parties agreed to refer the matter for arbitration and nominated their respective arbitrators---Nominated arbitrators submitted their joint opinion to the Circle Registrar whereafter the Committee of the Arbitrators announced their award, setting aside the orders of cancellation of the plots---Appellant-housing society challenged the awards under S. 64 of the Co-operative Societies Act, 1925 ("the Act'), by filing appeals before the Secretary, Provincial Co-operative Department, which were dismissed being barred by time---Contention of appellant-housing society that the orders of the Secretary, Provincial Co-operative Department under S. 64 of the Act were erroneous, as he could have treated the appeals as revisions in terms of S. 64-A of the Act instead of dismissing them on the ground of limitation---Validity---Unanimous award given by the panel of Arbitrators was neither appealable in terms of S. 64 of the Act, nor a revision under S. 64-A of the Act would lie against such award---In terms of S. 54-A of the Act, a party aggrieved by an award of three arbitrators could challenge the award by making an application to the Registrar, who may set aside the award and refer the dispute back to arbitration---Admittedly, the appellant-housing society had not challenged the awards before the Registrar with any application instead it invoked the provisions of S. 64 of the Act by preferring appeals, which were dismissed being barred by time---Such appeals could not have been treated as 'revisions' under S. 64-A of the Act, as said section had limited scope---Power under S. 64-A of the Act could not be extended to cover the proceeding, which related to arbitration and or award given by the Arbitrators Committee constituted in terms of S. 54 of the Act---Appeals filed before the Secretary, Provincial Co-operative Department, had been rightly dismissed as being barred by time---Appeal was dismissed accordingly.

(b) Co-operative Societies Rules, 1927---

----R. 32--- Co-operative Societies Act (VII of 1925), S. 54---Arbitration---Dispute over allotment of plots---Both parties agreed to refer the matter for arbitration and nominated their respective arbitrators---Nominated arbitrators submitted their joint opinion to the Circle Registrar whereafter the Committee of the Arbitrators announced their awards---Plea of appellant that the awards were not given within the stipulated period of two months, as ordained under R. 32 of the Co-operative Societies Rules, 1927 ("the Rules"), therefore, the awards were nullity in the eyes of law---Validity---No supportive material had been placed on record by the appellants to substantiate their plea, besides R. 32 of the Rules authorized the Registrar to extend the time of two months, which power apparently had been exercised in the present case while giving the unanimous awards---Admittedly panel of Arbitrators included the nominee of the appellants besides the Arbitration Committee was presided over by the nominee of the Registrar, therefore, in such an eventuality, it could not be presumed that the Registrar had not extended the stipulated time period of two months for the awards---Appeal was dismissed accordingly.

Messrs Firdous Trading Corporation v. Registrar Co-operative Societies, Hyderabad Division 1972 SCMR 91 distinguished.

Maqbool Sadiq, Advocate Supreme Court for Appellant (in all cases).

Tariq Rahim, Advocate Supreme Court for Respondents (in all cases).

Ex parte for Respondents Nos. 1-2.

2017 S C M R 1136

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

Messrs PAKISTAN TELEVISION CORPORATION LIMITED---Petitioner

Versus

COMMISSIONER INLAND REVENUE (LEGAL), LTU, ISLAMABAD and others---Respondents

Civil Petitions Nos. 3551 to 3555 of 2015, decided on 24th April, 2017.

(On appeal from the judgment of the Islamabad High Court Islamabad dated 23.09.2015 passed in I.T.Rs. Nos. 224-228 of 2015)

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 133---Reference before the High Court---Maintainability---'Question of law'---Scope---Reference before High Court under S. 133 of the Income Tax Ordinance, 2001 ("the Ordinance") would lie on a question of law only---When a reference filed before the High Court required an interpretation of various provisions of the Ordinance, it would essentially be a "question of law".

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss. 20, 21(c), 153(1)(b), 158(b), 161, 162 & 233(2), [as existed for the tax years 2009 to 2013]---Deductions not allowed in computing income---Scope---'Television licence fee' was collected from consumers through their electricity bills by Electricity Distribution and Supply Companies ("the Distribution companies") on behalf of Pakistan Television Corporation Ltd. (PTV)---Distribution companies would remit the balance licence fee to PTV after retaining a portion of it as their fee for this collection service---Pakistan Television Corporation Ltd. (PTV) claimed the collection service charges retained by Distribution companies as expenditure in terms of S. 20 of the Ordinance in the income tax returns it filed for the tax years 2009 to 2013, which stood finalized---Subsequently show cause notice was issued to PTV for further amendment of the assessments on the ground that the television licence fee collection expense was a commission earned by Distribution companies and PTV was required to deduct tax under S. 153(1)(b), or alternatively under S. 233(2) of the Ordinance, and since this was not done, therefore this expense was liable to be disallowed under S. 21(c) of the Ordinance---Legality---Section 158(b) of the Ordinance stipulated that a person who was required to deduct tax from an amount paid by the person shall do so at the time the amount was actually 'paid'---Effect of the combined reading of Ss.153(1)(b) & 158(b) of the Ordinance made it clear that deduction was to be made by a person "making the payment" "at the time the amount was actually paid", however in the present case, no payment was made by PTV to Distribution companies, instead the Distribution companies retained a portion of the licence fee and remitted the balance to PTV---Section 153(1)(b) of the Ordinance only required prescribed persons to deduct, and not collect, tax from the payment being made to a resident person for the rendering of or providing of services at the time of making the payment, thus, PTV could not have possibly deducted such tax as it did not make any actual payments to the Distribution companies---Advance tax in terms of S. 233(b) of the Ordinance could only be collected if there was a relationship of principal and agent between the parties---Agreement between PTV and Distribution companies for collection of licence fee did not indicate a relationship of principal-agent, rather the wording employed therein suggested that it was a contract for the provision of services for which the latter was entitled to a 'service fee'---As no relationship of principal and agent existed between PTV and Distribution companies, therefore PTV was not required to collect tax from the Distribution companies in terms of S. 233 of the Ordinance---Since PTV was not liable to deduct tax under S. 153(1)(b) of the Ordinance or collect advance tax under S. 233(2) of the Ordinance, thus it did not fall within the garb of the exception of S. 21(c) of the Ordinance, and was entitled to claim deduction of service fee from its income as expenditure---Further Ss. 161 & 162 of the Ordinance did not apply to the present case as both sections reflected a presumption that a person was required to deduct and/or collect tax, and PTV could neither have deducted tax nor was it liable to collect tax from Distribution companies---Appeal was allowed accordingly.

The Ramkola Sugar Mills Co., Ltd. v. The Commissioner of Income-Tax, Punjab and North-West Frontier Province Lahore PLD 1955 Federal Court 418 ref.

(c) Interpretation of statutes---

----'Fiscal statute'---Fiscal statute, particularly the provisions creating a tax liability, must be interpreted strictly and any doubt arising therefrom must be resolved in favour of the taxpayer.

Chairman, Federal Board of Revenue, Islamabad v. Messrs Al-Technique Corporation of Pakistan Ltd. and others PLD 2017 SC 99; Commissioner of Income Tax Legal Division, Lahore and others v. Khurshid Ahmad and others PLD 2016 SC 545; Zila Council Jhelum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Government of Sindh through Secretary and Director General, Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 and The State v. Zia-ur-Rehman and others PLD 1973 SC 49 ref.

(d) Interpretation of statutes---

----Statute was the edict of the legislature and the language employed in the statute was determinative of the legislative intent.

(e) Interpretation of statutes---

----Redundancy could not be attributed to statutory provisions or any part thereof.

Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd 2005 SCMR 1166; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779 and Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others 2005 PTD 1537 ref.

M. Makhdoom Ali Khan, Senior Advocate Supreme Court, Hafiz Muhammad Idris, Advocate Supreme Court, Faisal Hussain Naqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in all cases).

Muhammad Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court and Ehsan Ullah Khan, Dy. Commissioner Inland Revenue for Respondents (in all cases).

2017 S C M R 1152

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Rai MUHAMMAD KHAN---Petitioner

Versus

NAB through Chairman and others---Respondents

Civil Petition No. 3874 of 2016, decided on 22nd March, 2017.

(On appeal from the judgment dated 20.10.2016 passed by the Lahore High Court, Lahore in W.P. No. 15848 of 2016)

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iii)--- Constitution of Pakistan, Art. 185(3)---Misappropriation of public money---Corruption and corrupt practices---Bail, refusal of---Accused was alleged to have misused his public office by misappropriating millions of rupees allocated by the Government for constructions of roads, through fake and bogus completion bills, while in fact no work was done on the site---High Court had elaborately dealt with each and every aspect of the case while refusing to grant bail to the accused, therefore, there was no reason much less plausible to interfere in the impugned order of the High Court---Accused was refused bail accordingly with the observations that tendency of corruption in every field had become a threatening danger to the State; that public money, allocated for social sector and economic well-being of the poor people was consistently embezzled/misappropriated at a large scale and majority of the population was deprived of essential daily utilities, like pure drinking water, health care and education and that the Courts should apply anti-corruption laws rigidly at bail stage, once on facts a case was made out against the accused---Bail was declined and petition for leave to appeal was dismissed accordingly.

Qazi Misbah-ul-Hassan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nasir Mehmood Mughal, Spl. P. NAB for the NAB.

2017 S C M R 1155

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Qazi Faez Isa, JJ

ABDUL JABBAR alias JABBARI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 491 of 2012, decided on 19th April, 2017.

(Against the judgment dated 12.10.2011 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.11 of 2009 and Murder Reference No. 5 of 2009)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Re-appraisal of evidence---Benefit of doubt---Both the eye-witnesses produced by the prosecution, were very closely related to deceased inasmuch as the complainant was the son of the deceased and the other eye-witness was a nephew of the deceased---Both the said eyewitnesses were chance witnesses who had failed to establish the stated reason for their availability at the scene of the crime at the relevant time through any independent evidence---FIR in respect of the incident had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot---Medico-legal certificate issued in respect of deceased when he was alive showed that the injured victim was brought to the hospital not by the eye-witnesses but by a police official which showed that in all likelihood the said eyewitnesses had been procured and planted in the case at some subsequent stage---Post-mortem examination had been conducted after about 12 hours of deceased's death which again indicated that time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution---According to the FIR the place of occurrence ought to have been a field wherein the deceased and the complainant were grazing their cattle but the site-plan of the place of occurrence showed that the murder of the deceased had been committed inside a compound which surely was not a proper place for cattle to graze---Eye-witnesses claimed to have seen the occurrence from a distance of about 117-1/2 feet and still they claimed to have witnessed every detail of the incident including the different weapons being used by the accused party, which was a claim which could not be easily accepted---No independent corroboration or support had been received by the ocular account furnished by the prosecution---Medico-legal certificate issued in respect of deceased when he was alive showed that the injuries received by him had been caused by a firearm, a sharp-edged weapon as well as a blunt weapon which surely was in contradiction to the case of the prosecution---High Court had expressly held that the motive set up by the prosecution had not been proved by it; that alleged recovery of the weapon of offence from the accused's custody was legally inconsequential because no crime-empty had been secured from the place of occurrence, and that no evidence had been produced in support of the allegation that the accused had remained a Proclaimed Offender for some time before his arrest---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of life imprisonment awarded to the accused were set aside and he was acquitted of the charge by extending benefit of doubt to him---Appeal was allowed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 1159

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

COMMISSIONER INLAND REVENUE FBR through Commissioner Inland Revenue---Petitioner

Versus

Messrs ICI PAKISTAN---Respondent

Civil Petitions Nos. 569-K and 570-K of 2016, decided on 13th March, 2017.

(Against the judgment dated 13.06.2016 of the High Court of Sindh, Karachi passed in ITRA No.190 of 2012, Constitutional Petition No. D-2302 of 2011)

Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 65, 66 & 66-A---Income Tax Ordinance (XLIX of 2001), S. 122(5A)---Notice issued under S. 122(5A) of Income Tax Ordinance, 2001 for amendment of assessment order---Limitation period---Notice purportedly issued by the Department under the provisions of S. 122(5A) of the Income Tax Ordinance, 2001, was akin to the notice/proceedings which the Department would initiate in terms of Ss. 66 & 66-A of the Income Tax Ordinance, 1979 as the said notice was issued on the ground that the assessment order was erroneous and prejudicial to the interest of the Revenue---Period of limitation provided under Ss. 66 & 66-A of the Income Tax Ordinance, 1979 was four years and the notice issued by the Department in the present case was beyond such period---Notice in question could not be held to be issued under S. 65 of the Income Tax Ordinance, 2001 as it was not issued on the basis of some definite information---Petition for leave to appeal was dismissed accordingly.

Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 ref.

Muhammad Sarfaraz Metlo, Advocate Supreme Court for Petitioner.

Dr. Muhammad Farogh Naseem, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Respondent.

2017 S C M R 1179

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Maqbool Baqar, JJ

The FEDERAL GOVERNMENT through Secretary Interior, Government of Pakistan---Petitioner

Versus

Ms. AYYAN ALI and others---Respondents

Civil Petition No. 165 of 2017, decided on 30th January, 2017.

(Against the judgment dated 19.1.2017 of the High Court of Sindh, Karachi passed in C.P. No. D-3078 of 2016)

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

----S. 2---Constitution of Pakistan, Art. 199---Territorial jurisdiction of the Sindh High Court---Scope---Name of respondent had been placed on Exit Control list as she was nominated in a case of murder of a customs officer in connection with smuggling of foreign currency---Sindh High Court struck down the notification, issued by the Ministry of Interior, whereby name of respondent was placed on the Exit Control List, and inter alia gave directions to remove her name from the said List---Plea on behalf of Ministry of Interior that since the subject notification/memorandum, whereby her name was placed on the Exit Control List, was issued on basis of an order passed by the Lahore High Court, and as per the recommendations of the Home Department, Government of Punjab, the High Court of Sindh had no jurisdiction in the matter, and was thus not competent to entertain and decide the respondent's petition in such regard---Validity---Impugned notification/ memorandum had been issued by the Federal Government, which functioned all over the country---Federal Government, though may have exclusive residence or location at Islamabad, but it would be deemed to function all over the country---Since the respondent resided in Karachi, she had a right and choice to proceed abroad through the international airport in Karachi, and in fact at least twice earlier she had tried to go abroad through the said airport, but was stopped owing to the earlier notifications, whereby her name was placed on the Exit Control List---Embargo placed on the respondent from leaving the country had in fact taken place at Karachi, which prevention in all likelihood, was to be repeated at Karachi in pursuance of the present impugned notification/memorandum and thus gave rise to a cause of action against the said notification/memorandum at Karachi because of its taking effect there---Sindh High Court, thus, had the territorial jurisdiction to entertain the Constitutional petition filed by the respondent against the impugned notification/ memorandum.

LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others 2009 CLD 1498 ref.

(b) Exit from Pakistan (Control) Rules, 2010---

----R. 2---Exit from Pakistan (Control) Ordinance (XLVI of 1981), S. 2---Placing name of a person on the Exit Control List---Grounds---Pendency of a criminal case---Name of respondent had been placed on Exit Control list as she was nominated in a case of murder of a customs officer in connection with smuggling of foreign currency---Legality---Notification/memorandum, whereby name of respondent was placed on the Exit Control List, was issued purportedly for a reason which did not conform to the criteria as laid down in the Exit from Pakistan (Control) Rules, 2010 and the exit control policy---Liberty of a citizen could not be curtailed by mere registration of a criminal case---Registration of an FIR had no nexus with and was extraneous to the object of the Exit from Pakistan (Control) Ordinance, 1981--- Furthermore while issuing the impugned notification/ memorandum the Ministry of Interior had also overlooked an order of High Court whereby the said Ministry was restrained from placing the respondent's name on the Exit Control List without the prior approval of the High Court---High Court had therefore rightly struck off the impugned notification/memorandum---Petition for leave to appeal was dismissed accordingly.

Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 1997 Lah. 617 ref.

Sajid Ilyas Bhatti, DAG and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2017 S C M R 1189

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Manzoor Ahmad Malik, JJ

GULFAM and another---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 59 and 60 of 2013, decided on 12th April, 2017.

(Against the judgment dated 19.09.2011 passed by the Lahore High Court, Lahore in Criminal Appeal No. 234-J of 2005 and Murder Reference No. 643 of 2005)

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

----Ss. 302(b) & 394--- Qatl-i-amd, voluntarily causing hurt in committing robbery---Reappraisal of evidence---Benefit of doubt---Occurrence took place around midnight but the source of light at the spot had never been established by the prosecution---Courts below had incorrectly presumed that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot---Culprits perpetrating the alleged offences had not been nominated in the FIR and in the FIR it had been mentioned that the culprits were two unknown persons who had not even been described properly---During the investigation the present accused persons had been implicated but the record of the case was not clear as to how and on what basis the accused persons had been roped into present case---Prosecution had relied upon two alleged eye-witnesses who lived at some distance from the place of occurrence and they had claimed that at the relevant time they were available near a food cart on a roadside---Availability of the said eye-witnesses on a roadside near a cart at about midnight and doing nothing and for no purpose was a circumstance which was sufficient to raise doubts---Said eyewitnesses were, thus, nothing but chance witnesses who had failed to establish any reason for their availability near the place of occurrence at the relevant time---Said eye-witnesses claimed that they had shifted one of the deceased to the hospital in an injured condition, however the medico-legal certificate mentioned name of some other person who brought the said deceased to the hospital---Accused persons were allegedly identified in a joint test identification parade, which practice was disapproved---Eye-witnesses had statedly identified the accused persons even before the Trial Court during the trial but a perusal of their statements before the Trial Court showed that both eye-witnesses had only referred to the accused persons "present in court" but had failed to individually identify either of them with reference to any role allegedly played by them in the incident---Even otherwise identification of an accused person before the Trial Court during the trial was an unsafe practice which was never approved---Alleged recovery of weapon from custody of accused persons during investigation 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 offence---Similarly recovery of motorcycle from accused persons which was allegedly used during the incident was of no avail to the prosecution because in the FIR no colour, make or registration number of the motorcycle used had been mentioned---Prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Convictions and death sentences awarded to accused persons were set aside and they were acquitted of the charge by extending benefit of doubt to them---Appeal was allowed accordingly.

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

----Art. 22---'Joint test identification parade'---Practice of conducting a 'joint identification parade' of multiple accused persons in one go was not approved.

Lal Pasand v. The State PLD 1981 SC 142; Ziaullah alias Jaji v. The State 2008 SCMR 1210; Bacha Zeb v. The State 2010 SCMR 1189 and Shafqat Mehmood and others v. The State 2011 SCMR 537 ref.

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

----S. 302(b)---Qatl-i-amd---Identification of accused before Trial Court during trial---Such method of identification was unsafe and could not be approved.

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; Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 and Azhar Mehmood and others v. The State 2017 SCMR 135 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant (in both cases).

Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State (in both cases).

2017 S C M R 1194

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

IMTIAZ AHMED---Petitioner

Versus

The STATE through Special Prosecutor, ANF---Respondent

Criminal Petition No. 105 of 2017, decided on 21st March, 2017.

(On appeal from the order dated 10.1.2017 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. Misc. No. 2356-B of 2016)

(a) Interpretation of statutes---

----When any statute transgressed on the rights of a subject, whether as regards to his person or property, it must be so construed as far as possible, which may preserve such rights and no interpretation to the contrary shall be adopted, which would pose to destroy such rights.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192 and Khan Asfandyar Wali Khan v. The Federation of Pakistan and others PLD 2001 SC 607 ref.

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

----S. 46---Right to speedy trial---Scope---Trial before Special Court constituted under the Control of Narcotic Substances Act, 1997---To have a speedy trial, was the Fundamental Right of accused---Said principle applied more vigorously to the trials before Special Courts, such as the courts constituted under the Control of Narcotic Substances Act, 1997---Any unreasonable delay in the conclusion of the trial, before Special Courts, would amount to denial of justice.

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

----S. 497(1), proviso---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Delay in conclusion of trial---Medical grounds---Judge of Trial Court had shown negligent conduct in the progress of the trial, neglecting his obligatory duty to conclude the same in minimum possible time---Accused was in jail for almost 3 years, while conclusion of the trial was not in sight because the prosecution witnesses were not turning up, in spite of coercive process being issued against them---Investigating officer of the case, who was a star witness for the prosecution, was fugitive from law in another criminal case, therefore, conclusion of the trial in the near future could not be expected---Furthermore, the accused was of advanced age and suffered from sickness, and while in custody, he had undergone an eye surgery---Accused was granted bail in such circumstances.

Asif Ali Zardari v. The State 1993 PCr.LJ 781 ref.

Ms. Aisha Tasneem, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Raja Inam Amin Minhas, Spl. Prosecutor, ANF, Zubair, I.O. and Ch. Ehtesham-ul-Haq, Advocate Supreme Court for the State/ANF.

2017 S C M R 1201

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Energy and Power Department, Peshawar and others---Appellants

Versus

IHSAN ULLAH and others---Respondents

Civil Appeals Nos. 1515 and 1516 of 2016, decided on 5th May, 2017.

(On appeal from the judgment/order dated 02.06.2015 passed by Peshawar High Court, Peshawar in W.Ps. Nos.4122 of 2010 and 214 of 2011)

Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----Ss. 2(1)(b)(ii) & 19(2) [as amended by the Khyber Pakhtunkhwa Civil Servants (Amendment) Act (IX of 2005)]---Pakhtunkhwa Energy Development Organization Act (I of 1993), S. 3---Contract Employees of Pakhtunkhwa Energy Development Organization ("PEDO")---Project posts---Regularization in service---Scope---Pakhtunkhwa Energy Development Organization ("PEDO") was not a government department; it was rather a semi-autonomous body---Right to regularization in service under S.19(2) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 applied to employees of the government and not to employees of semi-autonomous bodies---Respondents/Project employees of "PEDO" were, therefore, not eligible for regularization under S. 19(2) of the Khyber Pakhtunkhwa Civil Servants Act, 1973---Besides the respondents' letters of appointment clearly stated that their posts were "temporary project posts" which would be "likely to continue till the completion of the project"---Supreme Court directed that in the interest of justice, the respondents may within one month place documentary evidence of the regularization of service of any project employee of "PEDO" before the relevant authority in order to show that notwithstanding the employment of such employee on a temporary project post his services were nevertheless regularized by the authority; that in such event, the authority shall after verification forthwith regularize the services of the respondents in "PEDO" with effect from the date of termination of their services---Appeal was disposed of accordingly.

Government of Khyber Pakhtunkhwa and others v. Kaleem Shah and others 2011 SCMR 1004 and Government of NWFP and others v. Abdullah Khan and others 2011 SCMR 898 = 2011 PLC (C.S.) 775 distinguished.

Umar Farooq Adam, Additional A.-G. Khyber Pakhtunkhwa for Appellant No.1 (in both cases).

Shumail Butt, Advocate Supreme Court for Appellants Nos.2-3 (in C.A. 1515 of 2016 and for Appellants 2-6 in C.A. 1516 of 2016)

Zulfiqar Khalid Maluqa, Advocate Supreme Court for Respondents (in both cases).

2017 S C M R 1206

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---

2017 S C M R 1213

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Tariq Parvez, JJ

STATE through Director General, Anti-Narcotics Force---Appellant

Versus

ABDUL JABAR alias JUBBARA---Respondent

Criminal Appeal No. 254 of 2014, decided on 18th May, 2016.

(Against the judgment dated 16.06.2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.424 of 2003)

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

----Ss.48, 50(1) & 71---Anti-Narcotic Force Act (III of 1997), S. 5(a)---Acquittal of accused person by Special Court---Appeal against acquittal filed before the High Court---Question as to whether the State or any of its delegatee were competent to file appeal against acquittal before the High Court; held, that S. 48 of the Control of Narcotic Substances Act, 1997 provided a right of appeal against an order passed by a Special Court constituted under the said Act---Appeal could competently be filed by the State against acquittal of an accused person by a Special Court---State/Federal Government could competently file an appeal (against acquittal) before the High Court; the Director-General, Anti-Narcotics Force could act in the matter as a delegatee of the Federal Government; and the function of the Anti-Narcotics Force regarding filing of an appeal could competently be performed by any official of the Force, including a Special Prosecutor, as directed by the Director-General, Anti-Narcotics Force.

The State v. Mst. Fazeelat Bibi PLD 2013 SC 361 ref.

(b) Appeal (criminal)---

----Scope---Appeal in a criminal case was a continuation of the trial.

Muhammad Hanif and others v. The State and others 2001 SCMR 84 and The State through Advocate-General, N.-W.F.P. Peshawar v. Naeemullah Khan 2001 SCMR 1461 ref.

(c) Appeal against acquittal---

----Scope---When an accused person was acquitted by a Trial Court then filing of an appeal against his acquittal may also be a step towards his prosecution.

Raja Inam Amin Minhas, Special Prosecutor, Anti-Narcotics Force, Muhammad Tariq, Deputy Director, Anti-Narcotics Force and Waseem Ahsan, Assistant Director, Anti-Narcotics Force for Appellant.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent.

Syed Nayyab Hussain Gardezi, Standing Counsel for the Federation on Court's Notice.

2017 S C M R 1218

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Syed MUSHAHID SHAH and others---Appellants/Petitioners

Versus

FEDERAL INVESTMENT AGENCY and others---Respondents

Civil Appeals Nos. 2561 to 2568 of 2016 and Civil Petitions Nos. 2779-L to 2785-L, 2793-L, 3182-L, 3183-L, 3224-L, 3225-L, 3328-L, 3253-L, 3299-L, 3300-L, 3345-L, 3553-L to 3557-L of 2016 and Criminal Petition No. 1050-L of 2016, decided on 15th May, 2015.

(On appeal against the judgment dated 26.05.2016, 27.09.2011, 17.11.2016 and 23.06.2016 of the Lahore High Court, Lahore passed in W.Ps. Nos.31284, 35792, 36199, 36555 and 36556 of 2015, 6720/2016, 3932/2011, 36331/2015, 22010/2013, 22011/13, 22013/13, 22015/13, 13821/16, 13845/16, 13855/16, 22012/2013, 9712/2009, 14030/2011, 1379/2011, 4428/2011, 23901/2009, 1456-Q/2012, 15460/2011, 15461/2011, 19532/2014, 14898/2011, 19731/2012, 19732/2012, 19733/2012, 19734/2012 and Crl. Rev.487/2016 respectively)

(a) Law---

----'General' and 'Special' law---Scope and distinction---General law was one that was unrestricted in terms of its applicability to all issues covered by its subject matter, whereas special law may be restricted to certain localities, persons or types of cases---Whether a law was general or special depended on the particular features of the statute in issue and was ultimately a question of relativity between two or more statutes on the common subject matter.

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

----Ss. 1(2) & 5---Criminal Procedure Code (V of 1898), Ss. 1(2), 5(1), 5(2) & 29(1)---General law---Scope---Pakistan Penal Code, 1860 and Criminal Procedure Code, 1898 were both general law and would cede to any special law.

(c) Interpretation of statutes---

----Non obstante clause---Scope and definition---Non obstante clause was a phrase used in documents to preclude any interpretation contrary to the stated object or purpose.

Principles of Statutory Interpretation (13th Ed.); Packages Limited through General Manager and others v. Muhammad Maqbool and others PLD 1991 SC 258 and Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others 2013 SCMR 85 ref.

(d) Interpretation of statutes---

----'General' and 'Special' law---Where there was a conflict between a special law and a general law, the former would prevail over the latter.

Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others 2013 SCMR 85 ref.

(e) Interpretation of statutes---

----Conflict between two laws providing different punishments for the same offence---Law providing greater punishment must relent in favour of the law ordaining the lesser punishment.

(f) Interpretation of statutes---

----'Special law'---Conflict between two special laws containing overriding clauses---When there were two special laws both of which contained overriding clauses, and there was a conflict between them, generally the statute later in time would prevail over the statute prior in time---Said presumption, however, was not automatic, instead a host of other factors including the object, purpose and policy of both statutes and the legislature's intention, as expressed by the language employed therein, needed to be considered in order to determine which of the two special laws was to prevail.

Shri Ramah-Narain v. The Simla Banking and Industrial Co. Ltd. 1956 SCR 603; Kumaon Motor Owners' Union Ltd. and another v. The State of Uttar Pradesh AIR 1966 SC 785 = [1966] 2 SCR 122; Sarwan Singh v. Kasturi Lal AIR 1977 SC 265; Ashok Marketing Ltd. and another v. Punjab National Bank and others (1990) 4 SCC 406; Slidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others (2001) 3 SCC 71; Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd. 5 (1997) 89 Comp Cas 547; Messrs Maruti Udyog Ltd. v. Ram Lal and others (2005) 2 SCC 638; State of Bihar and others v. Bihar M.S.E.S.K.K. Mahasangh and others AIR 2005 SC 1605; Morgan Securities and Credit Pvt. Ltd. v. Modi Rubber Ltd. AIR 2007 SC 683; Employees Provident Fund Commissioner v. O. L. of Esskay Pharmaceuticals Limited AIR 2012 SC 11; State v. Syed Mir Ahmed Shah and another PLD 1970 Quetta 49 and I.G. HQ Frontier Corps and others v. Ghulam Hussain and others 2004 SCMR 1397 ref.

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

----Ss. 4, 7(4), 7(5)(a) & 20---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 4 & 12---Constitution of Pakistan, Arts. 4 & 25---Offence falling under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 and also under the provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984---Forum competent to try such offence---Financial Institutions (Recovery of Finances) Ordinance, 2001, shall have an overriding effect in case of such offences---Were both laws to apply concurrently and permit of parallel platforms for the adjudication of offences under both laws then banks/financial institutions would always choose to initiate proceedings under the more onerous law, i.e. Offences in Respect of Banks (Special Courts) Ordinance, 1984---Such an interpretation would give banks/financial institutions unbridled power to choose the forum before which trial of offences should take place, and they would obviously choose the Special Courts under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 being more burdensome and prejudicial to the accused---Natural corollary was that in such circumstances the Financial Institutions (Recovery of Finances) Ordinance, 2001 would, in effect, be rendered redundant, which was not permissible under any principle of interpretation of law, when the courts were trying to reconcile two potentially conflicting laws---To allow forums under both the laws to operate concurrently would offend the provisions of Art. 25 of the Constitution, which provided that all citizens were equal before the law and were entitled to equal protection of the law---In the absence of any defined guidelines on the basis of which cases may be tried under either law, it would tantamount to conferring unfettered discretion on financial institutions to pick and choose the forum as per their free will, which would be violative of the rule against discrimination---Furthermore if both the Financial Institutions (Recovery of Finances) Ordinance, 2001 and Offences in Respect of Banks (Special Courts) Ordinance, 1984 were to enjoy concurrent jurisdiction, citizens alleged to have committed an offence in respect of finances would be left wondering which offence they would be charged with, which court they would be tried in and under what procedure---Such a situation would be an affront to the provisions of Art. 4 of the Constitution.

Waris Meah v. (1) The State (2) The State Bank of Pakistan PLD 1957 SC 157 ref.

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

----Ss. 4, 7(4), 7(5)(a) & 20---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 4 & 12---Criminal Procedure Code (V of 1898), Ss. 1(2), 5(1), 5(2) & 29(1)---Federal Investigation Agency, Act, 1974 (VIII of 1975), S. 3(1)---Banking Companies Ordinance (LVII of 1962), S. 83A---Offence falling within the provision of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Forum competent to try such offence---Whenever an offence was committed by a customer of a financial institution within the contemplation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, it could only be tried by the Banking Court constituted thereunder and no other forum---Special Courts under the Offences in Respect of Banks (Special Court) Ordinance, 1984, the ordinary criminal Courts under the Criminal Procedure Code, 1898, and the Federal Investigation Agency under the Federal Investigation Agency, Act, 1974 read with the Banking Companies Ordinance, 1962 would have no jurisdiction in the matter---Provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were to have an overriding effect on anything inconsistent contained in any other law for the time being in force.

Shahid Ikram Siddiqi, Advocate Supreme Court for Appellants (in C.A. 2561 of 2016).

Shahid Ikram Siddiqi, Advocate Supreme Court for Petitioners (in C.Ps. 3182, 3183, 3224, 3225, 3228, 3299, 3300-L/16) (did not appear on 01.03.2017)

Salman Aslam Butt, Senior Advocate Supreme Court for Appellants (in C.As. 2562-2568 of 2016).

Salman Aslam Butt, Senior Advocate Supreme Court for Petitioners (in C.Ps. 2779-2785, 2793-L of 2016).

Nemo for Petitioners (in C.P. No. 3253-L of 2016).

Haq Nawaz Chatha, Advocate Supreme Court for Petitioners (in C.P. 3345-L of 2016).

Shazaib Masood, Advocate Supreme Court for Petitioners (in C.Ps. 3553-3557-L of 2016) (did not appear on 01.3.2017)

Mian Asghar Ali, Advocate Supreme Court for Petitioners (in Crl. Petition 1050-L of 2016).

Rashdeen Nawaz Qasuri, Advocate Supreme Court, Sardar Qasim Farooq Ali, Advocate Supreme Court and Amir Wakeel Butt, Advocate Supreme Court for the Respondents for Bank of Punjab.

Abdul Hameed Chohan, Advocate Supreme Court for First Women Bank and UBL.

Raja Nadeem Haider, Advocate Supreme Court for Burj Bank.

Nemo for MCB.

Sajid Ilyas Bhatti, DAG and Raja Abdul Ghafoor, Advocate-on-Record for FIA.

Razzak A. Mirza, Additional A.-G., Punjab and Rana Abdul Majeed, Additional P.-G. for the State.

2017 S C M R 1249

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Sh. Azmat Saeed, Manzoor Ahmed Malik and Faisal Arab, JJ

SAID ZAMAN KHAN and others---Petitioners

Versus

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

Civil Petitions Nos. 842 of 2016, 3331, 3332, 3674 and 3777 of 2015, 06, 32, 211, 278, 417, 1263, 1306, 1335, 1353, 1503 and 1541 of 2016, decided on 29th August, 2016.

(On appeal from the judgment dated 26.01.2016 Lahore High Court, Rawalpindi Bench in W.P. No. 05/2016, judgment dated 14.10.2015 of the Peshawar High Court, Peshawar passed in W.P. No.2915/2015, judgment dated 14.10.2015 of the Peshawar High Court, Peshawar passed in W.P. No.2979 of 2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in W.P. No.3219-P/2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in W.P. No.3076-P/2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in W.P. No.(HCP) No.3878-P/2015), order dated 23.12.2015 of the Peshawar High Court, Peshawar passed in W.P. No.4433-P/2015, order dated 27.01.2016 of the Lahore High Court, Rawalpindi Bench passed in W.P. No.197/2016, order dated 19.01.2016 of the Peshawar High Court, Peshawar passed in W.P. No.133-P/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in W.P. No.1048-P/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in W.P. No.1184-P/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in W.P. No.1190-P/2016, order dated 19.01.2016 of the Lahore High Court, Rawalpindi Bench passed in W.P. No.117/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in W.P. No.1271-P/2016, order dated 12.5.2016 of the Lahore High Court, Bahawalpur Bench passed in W.P. No.3315 of 2016 respectively)

Per Sh. Azmat Saeed, J; Anwar Zaheer Jamali, CJ, Amir Hani Muslim, Manzoor Ahmed Malik and Faisal Arab, JJ agreeing

(a) Pakistan Army Act (XXXIX of 1952)---

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Conviction and sentence awarded by Field General Court Martial (FGCM)---Judicial review--- Grounds--- Any order passed or sentence awarded by a Court Martial or other forums under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, was subject to judicial review both by the High Courts and the Supreme Court, inter alia, on the ground of coram non judice, without jurisdiction or suffering from mala fides including malice in law.

District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Mst. Tahira Alams and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Begum Syed Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Syed Rashid Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/o Defence 2013 SCMR 596; Karamat Ali v. State PLD 1976 SC 476 and Ex.PJO-162510 Risaldar Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and others 2014 SCMR 849 ref.

(b) Words and phrases---

----"Coram non judice"---Definition.

Black's Law Dictionary, Ninth Edition ref.

(c) Coram non judice---

----Scope---'Coram non judice' was a fatal flaw germane to the very constitution of the judicial forum rendering its proceedings non est in the eye of law---Forum may be vested with the jurisdiction yet its actions may be invalid, if such forum had been set up in clear and absolute violation of the law applicable in such behalf.

(d) Words and phrases---

----"Mala fides"---Meaning ad proof.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Abdul Baqi Baluch v. Government of Pakistan through the Cabinet Secretary, Rawalpindi PLD 1968 SC 313; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC 113 and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

(e) Words and phrases---

----"Malice in law"---Meaning.

Black's Law Dictionary, Ninth Edition; Bromage v. Prosser 4 B.&C. 255; Allen v. Flood 1897 A.C. 1; Shearer and another v. Shields 1914 A.C. 808; Addl. Distt. Magistrate, Jubalpur v. Shivakant Shukla AIR 1976 SC 1207; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others PLD 1971 Kar. 514 and State of Andhra Pradesh and others v. Goverdhanlal Pitti AIR 2003 SC 1941 ref.

(f) Malice---

----'Malice of fact' and 'malice in law'---Distinction and proof.

Where any action was taken or order passed by any forum not with the intention of fulfilling its mandate or to achieve its purpose but was inspired by a collateral purpose or instigated by a personal motive to wrongfully hurt somebody or benefit oneself or another, it was said to suffer from 'malice of facts'. In such cases, the seat of the malice or bad faith was the evil mind of the person taking the action be it spite or personal bias or ulterior motive. Mere allegations, in such behalf, did not suffice. Malice of fact must be pleaded and established at least prima facie on record through supporting material.

All persons purporting to act under a law are presumed to be aware of it. Hence, where an action taken was so unreasonable, improbable or blatantly illegal that it ceased to be an action countenanced or contemplated by the law under which it was purportedly taken malice would be implied and the act would be deemed to suffer from 'malice in law' or 'constructive malice'. Strict proof of bad faith or collateral propose in such cases may not be required.

(g) Pakistan Army Act (XXXIX of 1952)---

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Conviction and sentence awarded by Field General Court Martial (FGCM)---Judicial review---Grounds---'Mala fides of fact'---Any proceedings taken, convictions and sentences awarded by the Field General Court Martial (FGCM) could be called into question on the ground of mala fides of fact i.e. being tainted with bias or bad faith or taken for a collateral purpose or inspired by a personal motive to hurt a person or benefit oneself or another---Mere allegation that an action had been taken wrongly was not sufficient to establish mala fide of fact---Specific allegations of the collateral purpose or an ulterior motive must be made and proved to the satisfaction of the Court.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Ex-gunner Muhammad Mushtaq and another v. Secretary Ministry of Defence through Chief of Army Staff and others 2015 SCMR 1071; Ex. Lt.-Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence and others 2014 SCMR 849 and Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405 ref.

(h) Pakistan Army Act (XXXIX of 1952)---

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Conviction and sentence awarded by Field General Court Martial (FGCM)---Judicial review---Grounds---'Malice in law'---Any decision of the Field General Court Martial (FGCM) could be challenged on the ground of malice in law or constructive or implied malice for which purpose it was sufficient to establish that the action complained of was not only illegal but so unreasonable and improbable that it could not be said to be contemplated or countenanced by the law where under such action had purportedly been taken---Malice in law would include an act done wrongfully and wilfully without reasonable or probable justification.

(i) Pakistan Army Act (XXXIX of 1952)---

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Conviction and sentence awarded by Field General Court Martial (FGCM)---Judicial review---Grounds---'Coram non judice' and 'without jurisdiction'---Where there was a fundamental legal flaw in the constitution of the Field General Court Martial (FGCM) the actions taken thereby would be coram non judice and hence, also without jurisdiction---Actions complained of could even otherwise be without jurisdiction, a separate and independent ground available to challenge the sentences and convictions of the FGCM, therefore, it must necessarily be examined whether the FGCM had the jurisdiction over the person tried and the offence for which such trial had taken place and to ascertain existence or otherwise of any other defect or a gross illegality in the exercise of jurisdiction denuding the same of validity.

(j) Pakistan Army Act (XXXIX of 1952)---

----S. 97---Constitution of Pakistan, Art. 199---Conviction and sentence awarded by Field General Court Martial (FGCM)---Judicial review by the High Court---Scope---Powers of judicial review under Art. 199 of the Constitution, against the sentences and convictions of the Field General Court Martial (FGCM) was not legally identical to the powers of an Appellate Court---Evidence produced could not be analyzed in detail to displace any reasonable or probable conclusion drawn by the FGCM nor could the High Court venture into the realm of the "merits" of the case---High Court could, however, always satisfy itself that it was not a case of no evidence or insufficient evidence or the absence of jurisdiction.

(k) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2(1)(d)(iii), 8(3) & 59---Member of a religiously motivated terrorist organization, attacking Armed Forces with deadly weapons, causing death of Army personnel---Jurisdiction of Field General Court Martial (FGCM) to convict and sentence a civilian---Scope---Accused was involved in the commission of an offence under S. 2(1)(d)(iii) of the Pakistan Army Act, 1952, as incorporated by the Pakistan Army (Amendment) Act, 2015, hence, by operation of law he became subject to the Pakistan Army Act, 1952, and, therefore, became liable to trial by a FGCM---Offence with which the accused was charged was obviously punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" as defined by subsection (3) of S. 8 of the Pakistan Army Act, 1952, and was liable to be tried by the FGCM in view of the provisions of S. 59 of the said Act.

(l) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2(1)(d)(iii), first proviso, 8(3) & 59(4)---Members of a religiously motivated terrorist organization, attacking Armed Forces with deadly weapons, causing death of Army personnel---Jurisdiction of Field General Court Martial (FGCM) to convict and sentence a civilian---Scope---Date of commission of offence---Non-significance---Offence in question was a "civil offence", as defined in S. 8(3) of the Pakistan Army Act, 1952 and was thus triable by the FGCM regardless of the date when the offence was committed, as was clear not only from the first proviso to S. 2(1)(d)(iii) but also S. 59(4) of the Pakistan Army Act, 1952---In view of the nature of the offences for which, the accused persons were charged, they became subject to the Pakistan Army Act, 1952, and thus liable to be tried by the FGCM, for such offences regardless of the fact where they became subject to the Pakistan Army Act, 1952 or when the offence was committed---Field General Court Martial (FGCM) was vested with the jurisdiction to proceed against the accused persons in the present case, hence, their convictions and sentences could not be held to be without jurisdiction on such account---Furthermore, during the course of the trial, the accused persons did not object to the jurisdiction of the FGCM, when granted an opportunity to do so, as was evident from the record.

(m) Pakistan Army Act Rules, 1954---

----R. 130---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], S. 2-C---Conviction and sentence awarded by Field General Court Martial (FGCM)---Accused persons objected that they were given only limited access to the record of the proceedings conducted by the FGCM---Validity---In view of the peculiar nature of the offences for which the accused persons were charged, it was imperative that efforts were made to ensure the security and safety of the members of the FGCM, witnesses produced, the prosecuting and the defending officers and the interpreters---Such sensitivity necessitated by the existing extra-ordinary circumstances had been reflected in S. 2-C of the Pakistan Army Act, 1952---By way of specific order passed by Supreme Court, all the counsel for accused persons were permitted to examine the record of the proceedings of the FGCM, which had been made available to the Supreme Court---Furthermore at no point of time after the confirmation of the sentence by the FGCM, any application was filed to the competent authority for the supply of the copies of the proceedings, in terms of R. 130 of the Pakistan Army Act Rules, 1954---Such applications were not even moved during the pendency of the proceedings before the High Courts or the Supreme Court---No prejudice had been caused to the accused persons in such behalf.

(n) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2(1)(d)(iii) & 97---Member of a religiously motivated terrorist organization, attacking Armed Forces with deadly weapons, causing death of Army personnel---Conviction and sentence awarded by Field General Court Martial (FGCM)---'Mala fides' of members of the FGCM---At no point of time during the course of trial by the FGCM or the pendency of the proceedings before the High Court or even before the Supreme Court any allegation of specific mala fides of fact were made against the members of the FGCM---Accused persons had not contended that any member of the FGCM either had any personal bias against them or established on record that any proceeding or convictions by the FGCM were the result of any evil intention of any member thereof or otherwise conducted in bad faith for a collateral purpose---During the course of proceedings, the accused persons were specifically inquired from as to whether they had any objection against any member of the FGCM, to which they responded in the negative, which fact was apparent from the record of the proceedings---In such circumstances, no case for mala fides of fact had been made out---Consequently, the conviction and sentence of the accused persons could not be set aside on the ground of mala fides of fact.

(o) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2(1)(d)(iii) & 97---Member of a religiously motivated terrorist organization, attacking Armed Forces with deadly weapons, causing death of Army personnel---Conviction and sentence awarded by Field General Court Martial (FGCM)---Coram non judice---Scope---Accused persons never contended that FGCM was not duly convened and constituted in terms of the Pakistan Army Act, 1952---No illegality or infirmity, in such behalf, was pointed out or noticed---In the circumstances, the conviction and sentence of accused persons could not be said to be coram non judice.

(p) Pakistan Army Act Rules, 1954---

----R. 81---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], S. 2(1)(d)(iii)---Constitution of Pakistan, Art. 8(3) & First Sched.---Conviction and sentence awarded by Field General Court Martial (FGCM)---Accused persons not defended by a civil defence counsel---Question as to whether trial of accused persons was vitiated in such circumstances; held, that Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, was validly and effectively incorporated through the Amendment in the First Schedule to the Constitution, as a consequence whereof, the provisions thereof could not be called into question on the ground of being in violation of the Fundamental Rights guaranteed under the Constitution in view of Art. 8(3)---Even otherwise, it was apparent from the record that prior to the commencement of the trial, the accused persons were specifically asked by the FGCM whether they needed an adjournment to prepare their defence or to engage a civil defence counsel, to which they responded in the negative---In such circumstances, defending officers were appointed in terms of R. 81 of the Pakistan Army Act Rules, 1954.

District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Mrs. Shahida Zahir Abbas and 4 others v. President of Pakistan and others PLD 1996 SC 632; Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Mst. Tahira Alams and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Begum Syed Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Syed Rashid Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/o Defence 2013 SCMR 596; Karamat Ali v. State PLD 1976 SC 476; Ex.PJO-162510 Risaldar Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and others 2014 SCMR 849; Black's Law Dictionary, Ninth Edition; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Abdul Baqi Baluch v. Government of Pakistan through the Cabinet Secretary, Rawalpindi PLD 1968 SC 313; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC 113; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Bromage v. Prosser 4 B. & C. 255; Allen v. Flood 1897 A.C. 1; Shearer and another v. Shields 1914 A.C. 808; Addl. Distt. Magistrate, Jubalpur v. Shivakant Shukla AIR 1976 SC 1207; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others PLD 1971 Kar. 514; State of Andhra Pradesh and others v. Goverdhanlal Pitti AIR 2003 SC 1941; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Ex-Gunner Muhammad Mushtaq and another v. Secretary Ministry of Defence through Chief of Army Staff and others 2015 SCMR 1071 ref.

(q) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 59 & 91---Civil offence---Conviction and sentence awarded by Field General Court Martial (FGCM)---Plea of accused persons that trial by the FGCM was invalid in view of S. 91 of the Pakistan Army Act, 1952, as a period of more than three years had passed between the alleged occurrence and the commencement of the trial---Validity---Accused persons being subject to the Pakistan Army Act, 1952, were tried for the civil offence in terms of S. 59 of the Act---Provisions of S. 91 of the Act were thus not attracted, as a trial for a civil offence under S. 59 had been specifically excluded from the operation of S. 91 of the Act.

(r) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2(1)(d)(iii), 104 & 130---Pakistan Army Act Rules, 1954, Rr. 23, 24, 35, 36, 37, 91, 95, 132 & 142---Constitution (Twenty-first Amendment) Act (I of 2015), Preamble---Members of a religiously motivated terrorist organization, attacking Armed Forces and civilians with deadly weapons, suicide bombers and improvised explosive devices (IEDs), causing death of Army personnel, kidnapping for ransom, providing assistance to terrorists to escape from jail---Conviction and sentence awarded by Field General Court Martial (FGCM)---Procedural fairness and correctness---[Per Sh. Azmat Saeed, J] Examination of the record revealed that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954---Accused persons, who were civilians, pleaded guilty to the charges, which were altered to not guilty by operation of the law to give them a fair opportunity of trial---Accused persons made judicial confessions before a Judicial Magistrate, which was proved in evidence by the said Judicial Magistrate, who appeared as a witness---Such confessions were never retracted by the accused persons---Charge was formally framed to which the accused persons pleaded guilty---Eye-witnesses of the occurrence were also produced---Prosecution witnesses made their statements on oath and were cross-examined by the defending officers---Opportunity to produce evidence in defence was given, which was declined by the accused persons---Accused persons were permitted to address the Court and make a statement, wherein they again admitted their guilt---In such circumstances, it could not be said that present cases were cases of no evidence or insufficient evidence nor was it possible to hold that the conclusions drawn by the FGCM were blatantly unreasonable or wholly improbable---Summary of evidence had been taken and was laid before the FGCM---Interpreters were appointed with the consent of the accused persons in terms of R. 91 of the Pakistan Army Act Rules, 1954---Nature of the offence for which the accused persons were charged and the possible sentence that would be awarded, were explained to them, and they were given an opportunity to prepare their defence and engage civil defence counsel, if they so desired---When the accused persons refused to exercise the option of engaging civil defence counsel, defending officers were appointed in terms of R. 81 of the Pakistan Army Act Rules, 1954---Accused persons were given an opportunity to object to the constitution of the FGCM and to the prosecutors as well as the defending officers, in terms of S. 104 of the Pakistan Army Act, 1952 and R. 35 of the Pakistan Army Act Rules, 1954---No objection, in such behalf, was raised---Members of the FGCM, the prosecutors, the defending officers and the interpreters were duly sworn in, as required by Rr. 36 & 37 of the Rules---Death sentences were passed, which were confirmed in accordance with S.130 of the Pakistan Army Act, 1952 and the appeals therefrom were dismissed by the competent authority---High Court and Supreme Court could not sit in appeal over the conclusions drawn by the FGCM or analyse the evidence produced before it---Provisions of the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 applicable to the trial of accused persons had not been violated---Even otherwise, the procedural defects, if any, would not vitiate the trial in view of R. 132 of the Pakistan Army Act Rules, 1954---Nature of the offence for which the accused persons were charged were exactly the "mischief" sought to be suppressed by the Constitution (Twenty-first Amendment) Act, 2015 and Pakistan Army (Amendment) Act, 2015---Selection of the cases of accused persons for trial by the FGCM reflected the due fulfilment of the mandate and purpose of the law---Accused persons were unable to make out even the semblance of a case that the selection process in such behalf was tainted with mala fides of facts or law or otherwise was without jurisdiction or coram non judice---Death sentence awarded to the accused persons by Field General Court Martial (FGCM) were confirmed accordingly---[Per Faisal Arab, J; agreeing] Family members of the accused persons claimed that they came to know about the trial and sentencing by the Military Courts for the first time from the newspapers and television reports---Every person who was arrested and detained by any law enforcement agency on account of his involvement in any offence was to be given an opportunity to have access to his family members at the earliest opportunity so that he may seek their assistance in order to avail the services of a counsel of his choice from whom he could seek legal advice to defend his position and be able to freely communicate---In the present cases had there been no categorical admission of guilt by the accused persons before the Magistrate, retrial would have been the right course to adopt.

[Per Faisal Arab, J; agreeing with Sh. Azmat Saeed, J]

(s) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Disclosure of detention of accused to his family members---In all criminal cases, the courts must ensure that the prosecution had duly informed the close family members of the accused under detention about his involvement in a criminal case so that he may be able to communicate with them and seek their assistance in hiring a counsel of his choice with whom he could communicate in order to seek legal assistance.

Ms. Asma Jahanghir, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos.3331/2015, 3332/2015, 32, 211, 1335 and 1503/2016).

Abdul Latif Afridi, Senior Advocate Supreme Court and Khalid Anwar Afridi, Advocate Supreme Court for Petitioners (in C.Ps. Nos.3674, 3777/2015 and 278/2016).

Malik Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.842/2016).

Mehmood Raza, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.417/2016).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record (Absent) for Petitioners (in C.P. No.1263/2016)

Khalid Anwar Afridi, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate-on-Record for Petitioners (in C.P. No.06/2016).

Laiq Khan Swati, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.1306/2016).

Col. (R) Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.1353/2016).

Sardar Muhammad Shahzad Khan Dhukhan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.1541/2016).

Ashtar Ausaf Ali, AGP, Syed Attique Shah, Additional AGP, Sajid Ilyas Bhatti, DAG assisted by Barrister Asad Rahim Khan, Consultant to AGP, Major Asad, JAG Branch for Federation (on Court's Notice) (in all cases).

Mian Arshad Jan, Addl. AG, Tahir Saleem, SHO, Bagnoter for Government of Khyber Pakhtunkhwa (in C.P. No.1503/2016).

Iqbal Ahmed Durrani, Standing Counsel, FATA.

2017 S C M R 1340

[Supreme Court of Pakistan]

Present: Gulzar Ahmad and Dost Muhammad Khan, JJ

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

----S. 498---Pre-arrest bail, grant of---Grounds---

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

----S. 9---Constitution of Pakistan, Art. 24---Corruption and corrupt practices---Residential Housing Societies---Directions given by Supreme Court to protect public from fraudulent Housing Societies---

2017 S C M R 1344

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Sardar Tariq Masood, JJ

SINDH REVENUE BOARD through Chairman Government of Sindh and another---Appellants

Versus

The CIVIL AVIATION AUTHORITY OF PAKISTAN through Airport Manager---Respondent

Civil Appeal No. 767 of 2014 and C.M.A. No. 565-K of 2013, decided on 29th May, 2017.

(On appeal against the judgment dated 10.07.2013 passed by the High Court of Sindh, Karachi, in C.P. No. D-2643 of 2013)

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

----Ss. 2(5), 2(6), 2(7), 2(79), 3 & Second Sched., Tariff Headings 9819.9090 & 9826.0000---Sindh Sales Tax on Services Rules, 2011, Rr. 40-A & 40-B---Pakistan Civil Aviation Authority Ordinance (XXX of 1982), Ss. 3, 15, 16, 17, 18, 21(3), 26 & 28---Constitution of Pakistan, Arts. 97(1), 98(1), 142(a) & Fourth Sched., Part. 1, Item Nos. 22, 24, 27, 32, 49, 53 & 54 & Part II, Item No. 6---Civil Aviation Authority ("the Authority")---Sales tax on services imposed by the Provincial Government--- Constitutionality--- Authority performed functions mentioned in the Federal Legislative List and was also a federal regulatory authority envisaged in Item 6 of Part I of the Federal Legislative List---Functions and regulatory duties performed by the Authority were within the exclusive sphere of the Federal Legislature and the Provincial Government could not impose sales tax on the purported services provided by the Authority---Sindh Sales Tax on Services Act, 2011 and the Sindh Sales Tax on Services Rules, 2011 to the extent that they imposed on Civil Aviation Authority sales tax on services were contrary to the provisions of the Constitution, and were void ab initio and of no legal effect---Sindh Sales Tax on Services Act, 2011 and the Sindh Sales Tax on Services Rules, 2011 to the extent that they taxed the Civil Aviation Authority violated Art. 142(a) of the Constitution since only the Federal Legislature could make laws with respect to matters pertaining to the Authority.

Civil Aviation Authority ("Authority") was a regulatory authority which performed functions that were within the exclusive domain of the Federal Legislature. Functions performed by the Authority were those which were listed in the Federal Legislative List. Legislative duties and functions performed by the Authority were not services. Authority had no option but to undertake its statutory duties and responsibilities. Merely because the Authority imposed a fee or charge for providing them, which Parliament had authorized it to impose, would not in itself bring the provision of these duties and functions and the facilities and paraphernalia provided pursuant thereto within the realm of services upon which sales tax could be levied. The Federation exercised executive authority in respect of subjects which could be legislated by the Federal Legislature (Article 97(1) of the Constitution) and the Federal Government's executive authority could be conferred on "authorities subordinate to the Federal Government" (Article 98(1) of the Constitution). The Federal Legislature enacted the Pakistan Civil Aviation Authority Ordinance, 1982. Authority was controlled by a Board which was appointed by the Federal Government and the Authority was bound by the directives of the Federal Government. Moreover, the Authority operated under the oversight of the peoples' representatives and as such was accountable to them. It was financially monitored by a constitutional office holder. In taxing the Authority the Provincial Government was trying to tax the operations of the Federal Government and a regulatory authority created by the Federal Legislature.

By imposing sales tax on services, the Provincial Government had legislated in respect of subjects or matters related thereto which were within the domain of the Federal Legislature. Whilst the provincial legislatures were independent, they must operate within the sphere allotted to them and within their prescribed limit. Neither the Federation nor the Provinces should invade upon the rights of the other nor encroach on the other's legislative domain.

United States v. Darby Lumber Co. 312 US 100; Hammer v. Dagenhart 247 US 251 and M'Culloch v. Maryland 17 US 316 ref.

Supreme Court observed that airplanes carried passengers and transported goods and they took off and landed in airports throughout the country, including the territories of the provinces; that since sales tax was ultimately to be borne by the users/people, therefore, if every province imposed sales tax it would make flying complex and unnecessarily expensive; that connectivity of the country would be undermined and airports situated in remote areas, that were subsidized, may become too expensive to use and resultantly the people would suffer; that if sales tax was imposed, the Authority may avoid spending money on the proper maintenance of existing airports and may also be dissuaded to invest in new airports which were not commercially viable, which would adversely affect travel, national cohesion, the interest of the Federation and of the Provinces.

Supreme Court held that the Sindh Sales Tax on Services Act, 2011 and the Sindh Sales Tax on Services Rules, 2011 to the extent that they imposed on Civil Aviation Authority sales tax on services were contrary to the provisions of the Constitution, and were void ab initio and of no legal effect. The Sindh Sales Tax on Services Act, 2011 and the Sindh Sales Tax on Services Rules, 2011 to the extent that they taxed the Civil Aviation Authority violated Article 142(a) of the Constitution since only the Federal Legislature could make laws with respect to matters pertaining to the Authority.

(b) Words and phrases---

----"Federal State"---Concept explained.

A.D. Dacey's seminal work, "Introduction to the Study of the Law of Constitution" ref.

(c) Interpretation of Constitution---

----Constitution was a living and organic thing, and it should not be interpreted narrowly or restrictively, and a pedantic interpretive approach should be avoided.

(d) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists---Scope---Determining whether a subject fell within the legislative domain of the Federal or the Provincial Government---Pith and substance of the legislated subject was to be examined to determine in whose legislative sphere a particular subject came under---Reasonable interpretation which did not produce impracticable results should be adopted.

Farooq H. Naek, Senior Advocate Supreme Court for Appellant No.1.

Khalid Javed Khan, Advocate Supreme Court, Fouzi Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant No.2.

Syed Naveed Amjad Andrabi, Advocate Supreme Court for Respondent.

Muhammad Waqar Rana, Additional Attorney-General for Federation.

Sabtain Mehmood, Additional Advocate-General for Government of Sindh.

2017 S C M R 1379

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD ARIF IDREES and others---Petitioners/Appellants

Versus

SOHAIL AAMIR and others---Respondents

Criminal Original Petitions Nos.59 of 2015, 65, 66, 67, 68, 84, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 105, 104, 112, 113, 140, 227 and 233 of 2016, 50, 89, 88, 87, 86, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78 and 79 of 2017, Crl. M. As. Nos. 752, 863, 909, 910, 918, 862, 911, 912, 973, 974, 891, 892, 1003, 1004, 1021, 1112, 1028, 1044, 1179, 1360, 1424, 1627, 1263, 1717, 1995, 1300, 1303, 1783, 1784, of 2016, 44, 65, 66, 653, 620, 621, 622, 573, 574, 575. 643, 645, 661, 662, 685, 686, 687, 688, 689, 691, 698, 699 and 700 of 2017 and C.M. Appeal No.126 of 2016 in Const. P. No. Nil of 2016, C.M. Appeal No.159 of 2016 in Const. P. No.Nil of 2016 and C.M. Appeal No.162 of 2016 in Const. P. No. Nil of 2016, decided on 21st April, 2017.

(For non-compliance of the judgments of this Court dated 27.8.2013 and 21.7.2014 passed in Civil Appeal No.800-L of 2013 etc. and C.Ps. Nos.1270 of 2014 etc. respectively)

Constitution of Pakistan---

----Arts. 18, 25 & 204---Contempt of Court Ordinance (V of 2003), S. 3---Contempt of Court---Private Hajj Scheme quota---'Quota holder' and 'non quota-holder' Hajj Group Organizers (HGOs)---Allocation of whole of Private Hajj Scheme quota to quota holder 'HGOs' and members of the Hajj Group Organizers Association of Pakistan (HOAP) to the exclusion of non-quota holder 'HGOs'---Effect---Unjust and unfair classification---Monopoly of quota-holder 'HGOs'---Exploitation of pilgrims---Violation of directions given by the Supreme Court in the case of Dossani Travels (Pvt.) Ltd and others v. Messrs Travels Shop (Pvt.) Ltd and others (PLD 2014 SC 1) ("Dossani Travels case")---In the "Dossani Travels case" the Supreme Court had given directions to the effect that the Ministry of Religious Affairs in framing the Hajj policy, should seek guidance from the recommendations of the Competition Commission, and that the credential of each applicant/HGO should be examined and decision regarding allocation of quota should be made on merits---In pursuance of said directions of the Supreme Court the Ministry of Religious Affairs ("concerned Ministry") invited Hajj packages from all the Hajj Group Organizers ("HGOs"), in response whereof the petitioners submitted their respective packages---Petitioners contended that no such package was submitted by the members of the Hajj Group Organizers Association of Pakistan ("HOAP"), but still, and in clear violation of the directions given in the "Dossani Travels case", the concerned Ministry, instead of distributing the private sector Hajj quota amongst all the HGOs, granted the whole of such quota to the members of the 'HOAP' exclusively, thus depriving the petitioners of their participation in the Hajj, 2017---Validity---Petitioners were duly enrolled as 'HGOs' with the concerned Ministry---Such enrolment was effected after the petitioners applied for the same in response to an advertisement inviting applications for enrolment as 'HGO' from the concerned Ministry, and only after they fulfilled the requisite qualification and met the prescribed criteria---Petitioners also underwent a third party evaluation, and had been scrutinized by chartered accountants duly appointed by the concerned Ministry, for the purpose, at least twice---Petitioners, being free citizens of the country, enjoyed the fundamental right to enter upon any lawful profession or occupation and to conduct any lawful trade or business, as enshrined by Art. 18 of the Constitution---Petitioners decided to enter into the business of Hajj Organizers/Operators, and prepared themselves for conducting and carrying out the said business, and fulfilled the various terms and conditions as prescribed and required by concerned Ministry, and thus became legitimately entitled to operate as such, and to their share in the national Hajj quota in accordance with law, which was sine quo non to enable them to function/operate as 'HGOs'---Registration/ enrolment with the concerned Ministry created a legitimate expectancy in the petitioners, and others like them, of sharing the private scheme quota with the members of the 'HOAP', but the government/concerned Ministry, despite recognizing their right to share the private scheme quota, and despite having categorically undertaken before the Supreme Court in the "Dossani Travels case", had been avoiding/delaying allocation of share in the quota to the petitioners, and other non-quota holder 'HGOs', on the pretext of "non-availability of surplus quota"---Non-quota holder 'HGOs' were being denied Hajj quota merely on the pretext that no surplus quota was available with the Federal Government---Quota for Hajj allocated by the Kingdom of Saudi Arabia to Pakistan was for the people of Pakistan and not for any particular group, segment or association---No basis, rationale or justification existed to continue to grant quota only to those who had been granted such quota earlier also, especially so when fresh entrants had been lured into joining the business/occupation of 'HGOs', through advertisement and had been enrolled as such through due process---Artificial, unjust and unfair classification created by the concerned Ministry between quota holder 'HGOs', and the non-quota holder 'HGOs' offended Art. 25 of the Constitution, which guaranteed to all citizens equality before and equal protection of law---Creating a monopoly (of quota holder HGOs) was also violative of Art. 18(c) of the Constitution and defeated the provisions of Art. 18(b), which provided for regulation of trade, commerce and industry in the interest of free competition therein---By monopolizing the private Hajj arrangements in the hands of the members of 'HOAP', the Government was also depriving the intending Hujjaj (pilgrims) of a larger, or may be better choices of 'HGOs', and was thus facilitating/encouraging their exploitation at the hands of the members of 'HOAP'---By avoiding to grant any quota to the non-quota holder 'HGOs', including the petitioners, the officials of the concerned Ministry had clearly violated and defied the directions of the Supreme Court in the "Dossani Travels case", and prima facie, made themselves liable to be proceeded against accordingly (for contempt of court)---Supreme Court, however, took a lenient view and directed that it was granting an opportunity to the officials of the concerned Ministry to review their decision and reframe their policy, allocate quota to the petitioners and all other like them in the light of the directions given in the "Dossani Travels case"; that in doing so and while following the recommendations of the Competition Commission, the concerned Ministry and the policy formulating committee may devise a formula/criteria so that where a 'HGO' achieved a certain quantitative threshold, through a third party audit/evaluation, the number of times it had performed as 'HGO' may not remain relevant, so that any 'HGO' may not suffer on account of being a comparatively newer/junior 'HGO'---Petitions were disposed of accordingly.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Haji Organizers Association of Pakistan Islamabad and others v. Al-Qasim Haji and Umrah Services (Pvt.) Ltd. and another C.Ps. Nos.1180, 1265 and 1297 of 2016 and Arshad Mehmood v. Government of Punjab and others PLD 2005 SC 193 ref.

Azhar Siddique, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (absent) for the Petitioners/Appellants (in Cr. O.P. 59/16, Crl. M.As.1003, 1004, 1044, 1179, 1360, 1627 of 2016 and 645 of 2017).

Sardar Muhammad Aslam, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Cr. O.P.66/16 and Crl. M.A.1995 of 2016).

M. Shahnawaz Sikandari, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners/Appellants (in Crl. M.As.918, 93, 1112 of 2016).

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Cr. O.Ps.67 and 92 of 2016).

Kazi Sheheryar Iqbal, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Cr. O.Ps.68, 84, 98, 100, 112 of 2016, 88, 68, 70, 71 and 78 of 2017).

Nazir Ahmed Bhutta, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Crl. M.As.863, 909, 1717 of 2016 and 689 of 2017).

Abdul Wahid Ch., Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (absent) for Petitioners/Appellants (in Crl. M.A.974 of 2016).

Raja Ghazanfar Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Cr.O.Ps.97 and 99 of 2016).

Raja Muqsit Nawaz Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners/Appellants (in Cr. O.Ps.140/16 and 86/17).

M. Habibullah Khan, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Cr.O.P.87/17).

Masood Ahmad Zafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners/Appellants (in Crl.M.A.643 of 2017).

Ali Zafar, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Cr.O.P.65/16, Crl. M.As.65 and 66 of 2017).

Aftab Bajwa, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners/Appellants (in Crl. M.As.661 and 688 of 2017).

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Cr. O.Ps.227/16, 50, 79 of 2017, Crl. M.As.662, 685, 687, 699 and 700 of 2017).

Tahir Munir Malik, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners/Appellants (in Crl. M.A.1300 of 2016).

Ch. Ishtiaq Ahmed Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners/Appellants (in Crl. M.As.1424 and 1263 of 2016).

Qari Abdul Rasheed, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Crl. M.A.1303 of 2016).

Muhammad Shah Khawar, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners/Appellants (in Cr. O.Ps. 94, 95, 96, 113, 233 of 2016 and 89 of 2017).

Khan Afzal Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Crl. M.A.159 of 2016).

M. Habib Qureshi, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Crl. M.A.1303 of 2016).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioners/Appellants (in Cr.O.P.105/16, Crl. M.As.653, 72, 73, 74, 75, 76 and 77 of 2017).

Raja M. Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in C.M. Appeal No.126 of 2016).

Abid S. Zuberi, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record assisted by Barrister Ayan M. Memon and Farhan Shah, Advocates for Petitioners/Appellants (in Crl. M.As.620, 621, 622, 573, 574 and 575 of 2017).

Aleem Baig Chughtai, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record (absent) for Petitioners/Appellants (in Cr. O.P.101/16 and Crl. M.A.910 of 2016).

Kanwar Iqbal Ahmed Khan, Advocate Supreme Court for Petitioners/Appellants (in Crl. M.As.862 and 912 of 2016).

M. Bashir Khan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record (absent) for Petitioners/Appellants (in Crl. M.As.891 and 892 of 2016).

Waseem Majid Malik, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record (absent) for Petitioners/Appellants (in Cr. O.P.104/16 and Crl. M.A.1021 of 2016).

Mian Muhammad Aslam, Advocate Supreme Court and Abdul Majeed Iftikhar Bajwa, Advocate-on-Record (absent) for Petitioners/ Appellants (in Crl. M.A.691 of 2017).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners/Appellants (in Crl. M.A.686 of 2017).

Mehmood A. Sheikh, Advocate Supreme Court/Advocate-on-Record for Petitioners/Appellants (in Crl. M.As.1783, 1784 of 2016 and 44 of 2017).

Petitioners/Appellants in person (in Crl. M.A.1028 of 2016).

Nemo for Petitioners/Appellants (in Crl. M.As.911 and 973 of 2016 and C.M. Appeal 162/16).

Sohail Mehmood, DAG, M.S. Khattak, Advocate-on-Record for Respondents.

Abid S. Zuberi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record assisted by Barrister Ayan M. Memon Farhan Shah, Advocate for HGO/HOAP.

2017 S C M R 1395

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

FANCY FOUNDATION---Appellant

Versus

COMMISSIONER OF INCOME TAX, KARACHI---Respondent

Civil Appeal No. 8 of 2007, decided on 13th April, 2017.

(Against the judgment dated 12.4.2006 of the High Court of Sindh, Karachi passed in I.T.A. No. 55 of 1999)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 2(11) & 136---Reference before High Court---Maintainability---Mixed question of fact and law---Question as to whether the sale/purchase of property constituted 'business' within the meaning of S. 2(11) of the Income Tax Ordinance, 1979 and its effect on the taxpayer, involved a factual determination of the characteristics of the transaction in question and an interpretation of the said provision of law, therefore, it was a mixed question of fact and law and the reference before the High Court was maintainable.

Naseer A. Sheikh and 4 others v. The Commissioner of Income-Tax (Investigation), Lahore and others 1992 PTD 621 ref.

(b) Words and phrases---

----"Adventure"---Meaning.

Black's Law Dictionary (9th Ed.); Chamber's 21st Century Dictionary; Oxford Advanced Learner's Dictionary (9th Ed.) and P. Ramanatha Aiyar's Concise Law Dictionary (4th Ed.) ref.

(c) Words and phrases---

----"Trade"---Definition.

Black's Law Dictionary (9th Ed.); Chamber's 21st Century Dictionary; Oxford Advanced Learner's Dictionary (9th Ed.) and P. Ramanatha Aiyar's Concise Law Dictionary (4th Ed.) ref.

(d) Words and phrases---

----"Business"---Definition.

Black's Law Dictionary (9th Ed.); Chamber's 21st Century Dictionary; Oxford Advanced Learner's Dictionary (9th Ed.); P. Ramanatha Aiyar's Concise Law Dictionary (4th Ed.) and Major Law Lexicon (4th Ed.) 2010 ref.

(e) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 2(11)---Transaction by assessee---Question as to whether the transaction was an "adventure in the nature of the trade" amounting to business in terms of S. 2(11) of the Income Tax Ordinance, 1979---No hard and fast rule existed as to whether a transaction constituted an "adventure in the nature of trade" amounting to 'business' in terms of S. 2(11) of the Ordinance; instead, such a determination was dependent upon the facts and circumstances of each case---Principles.

In order to make a determination whether a transaction by an assessee was an "adventure in the nature of the trade" amounting to business in terms of section 2(11) of the Income Tax Ordinance, 1979, the following guiding principles may be employed:-

(i) Generally, in order to constitute 'business', there must be a continuous, regular or habitual activity for the purpose of earning gain or profit;

(ii) However, this did not mean that a single transaction could not constitute an adventure in the nature of trade, which must be examined on a case to case basis;

(iii) A transaction was not necessarily in the nature of trade because the purchase was made with the intention of resale;

(iv) A capital investment and resale did not lose their capital nature merely because the resale was foreseen and contemplated when the investment was made and the possibility of enhanced values motivated the investment;

(v) The intention to resell, by itself was not conclusive proof, of an adventure in the nature of trade, rather would have to be examined in conjunction with the conduct of the assessee and attendant circumstances, to determine the business character of the transaction; and

(vi) If it was alleged that an activity was in the nature of an adventure, there must be positive material brought on the record to prove that the assessee intended to indulge in such an activity and, in the absence of evidence, the sale of immovable property would give rise only to capital accretion.

Naseer A. Sheikh and 4 others v. The Commissioner of Income Tax (Investigation) Lahore and others 1992 PTD 621; Commissioner of Income-Tax (Central), Karachi v. Messrs Habib Insurance Co. Ltd., Karachi PLD 1969 Kar. 278; Messrs Habib Insurance Co. Ltd. v. Commissioner of Income Tax (Central) Karachi PLD 1985 SC 109; Commissioner of Income Tax v. Mahmood Ali 2008 PTD 82; Major General (Retd.) M. Jalaluddin v. ACIT, CIR-VI, Zone-C, Karachi 2011 PTD 1377; Pakistan Steel Mills Corporation (Pvt.) Ltd., Karachi v. Commissioner Inland Revenue (Legal Division), Karachi and another 2012 PTD 723; Messrs Narain Swadeshi Weaving Mills v. The Commissioner of Excess Profits Tax AIR 1955 SC 176; G. Venkataswami Naidu and Co. v. The Commissioner of Income Tax AIR 1959 SC 359; Saroj Kumar Mazumdar v. Commissioner of Income Tax, West Bengal AIR 1959 SC 1252; The Commissioner of Income Tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pardesh v. Prabhu Dayal (dead) by his legal representatives AIR 1972 SC 386; The Commissioner of Income Tax, Nagpur v. Messrs Sutlej Cotton Mills Supply Agency Ltd. AIR 1975 SC 2106; Commissioner of Income Tax v. A. Muhammad Mohideen (1989) 176 ITR 393 and Commissioner of Income Tax, Madras v. Kasturi Estates (P) Ltd. (1966) 62 ITR 578 ref.

(f) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 2(11), 22 & 27(2)(a)---"Adventure in the nature of the trade" amounting to business in terms of S. 2(11) of the Income Tax Ordinance, 1979---Scope---Registered charitable trust---Profit made upon sale of property---Exemption from income tax---Burden of proof---Appellant, a registered charitable trust, purchased certain property vide a registered sale deed, on 28.06.1963 for a consideration of Rs.1,895,183---Appellant sold the property for Rs.18,287,500/- in the year 1995---Appellant filed its income tax return for the year 1996-97, in which it claimed exemption from payment of income tax on the surplus/differential between the purchase and sale prices of the property in terms of S. 27(2)(a) of the Income Tax Ordinance, 1979 ("the Ordinance")---Tax department, however, passed an assessment order to the effect that the purchase and ultimate sale of the property was an "adventure in the nature of the trade" in terms of S. 2(11) of the Ordinance thus the profit/surplus made on the sale thereof was a profit and gain of a business carried on by the appellant and was chargeable to income tax under the head 'income from business or profession' under S. 22(a) of the Ordinance---Legality---Memorandum of Association of the appellant did allow it to "purchase, take on lease, exchange, hire or otherwise acquire any real and personal or immoveable and moveable property", however, the mere permissibility of a transaction by itself did not automatically confer on it the status of a 'business'---Burden was on the department to prove that the surplus earned from the single transaction of sale of the property fell within the scope of 'income' being a profit/gain of the appellant's business---Department wanted to draw an inference from the fact that the appellant converted the property into a parking lot and derived some rental income therefrom, that the appellant had intended, at the time of purchase of the property, to indulge in an adventure in the nature of trade to generate profit---Department failed to discharge its initial burden as there was no concrete material presented by it which proved that the appellant purchased the property with the intention to indulge in a trading activity, therefore the question of the appellant proving that the transaction was not an adventure in the nature of trade and hence a business, did not arise as the burden never shifted onto the appellant---Fact that the property had increased in value when it was finally sold by the appellant and therefore fetched a price higher than that for which it was purchased, would not ipso facto mean that the act of selling was an "adventure in the nature of trade" and constituted a 'business' under S. 2(11) of the Ordinance and was liable to tax under S. 22(a) thereof---Rather, being a sale of an immoveable property and not a capital asset, the profit/gain from its transfer was not chargeable to income tax under S. 27(2)(a)(ii) of the Ordinance---Single and isolated incident of buying and selling property by the appellant was, thus, not an "adventure in the nature of trade" and would not constitute 'business' in terms of S. 2(11) of the Ordinance, and the surplus earned therefrom was not a profit/gain in terms of S. 22(a) of the Ordinance and was not liable to income tax.

(g) Income tax---

----Income---Scope---Receipts falling within the scope of 'income'---Burden of proof---Burden to prove that an assessees' receipts fell within the scope of 'income' and were liable to be taxed, laid on the department, and if the latter managed to establish the same, then the burden shifted onto the former to show that such receipts were exempt from tax.

The Commissioner of Income Tax v. Messrs Smith, Kline and French of Pakistan Ltd. and others 1991 PTD 999; Parimisetti Seetharanamma v. Commissioner of Income-tax, Hyderabad AIR 1965 SC 1905) = (1965) 57 ITR 532; S. A. Ramakrishnan v. Commissioner of Income-Tax Madras (1978)] 114 ITR 253 (Mad) and Sumati Dayal v. Commissioner of Income-tax Bangalore AIR 1995 SC 2109 ref.

Iqbal Salman Pasha, Advocate Supreme Court for Appellant.

M.D. Shahzad Feroz, Advocate Supreme Court for Respondent.

2017 S C M R 1414

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab and Sajjad Ali Shah, JJ

COMMISSIONER INLAND REVENUE ZONE-I, RTO, RAWALPINDI---Appellant

Versus

Messrs KHAN CNG FILLING STATION, RAWALPINDI and others---Respondents

Civil Appeals Nos. 992 to 1017, 1206 and 1207 of 2013, 21 and 22 of 2015, 57 to 59 of 2015, decided on 4th April, 2017.

(On appeal against the judgments dated 12.11.2012, 11.02.2013, 13.11.2012, 06.05.2014, 25.03.2014, 26.03.2014 passed by the Lahore High Court, Rawalpindi Bench in I.T.R. Nos. 14, 18, 19, 21, 22, 23, 24 to 34, 43, 69 to 72, 74, 75, 76 of 2012, 02, 03, 04, 05, 11, 15 and 16 of 2013)

(a) Income Tax Ordinance (XLIX of 2001)---

----Ss. 120(1A), 121, 122(1)(5A), 176 & 177---Amendment of original (deemed) assessment order---Scope---Powers of Commissioner to conduct audit of income tax return---Scope---When the Commissioner, Inland Revenue, invoked his powers in order to conduct audit or investigation of the income tax affairs of a person, only then the original (deemed) assessment order come under scrutiny with conscious application of mind---Commissioner by virtue of and in exercise of the powers contained in Ss. 120 (1A), 121, 122 (1)(5A), 176 & 177 of the Income Tax Ordinance, 2001, could initiate the proceedings for investigating the income tax affairs of a person notwithstanding the fact that such return of income by virtue of S. 120(1) of the Ordinance was taken as an assessment made and assessment order issued by the Commissioner---Deemed assessment order after its amendment with conscious application of mind lost its legal effect in terms of S. 177(10) of the Ordinance.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 122(5)---Income Tax Ordinance (XXXI of 1979) [since repealed], S. 65(2)---Amendment of original (deemed) assessment order under the Income Tax Ordinance, 2001 and the (repealed) Income Tax Ordinance, 1979---Procedure---Comparison of the provisions of S. 65(2) of the (repealed) Income Tax Ordinance, 1979 and S. 122(5) of the Income Tax Ordinance, 2001 showed that the procedure prescribed for amending an assessment order under the said two Ordinances was not the same---Difference between the two procedures stated.

Central Insurance Co. v. Central Board of Revenue, Islamabad 1983 SCMR 1232 ref.

(c) Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(5), 122(8) & 176(1)(a)---'Definite information" within the meaning of S. 122(5) of the Income Tax Ordinance, 2001---Processing "definite information" through use of a scientific or mathematical formula to determine correct tax liability---Scope---For the purpose of determining the correct tax liability, any information falling within the ambit of 'definite information' may not by itself produce an answer unless such information was further processed---Such process could be a chemical analysis conducted in a laboratory or the application of some mathematical or scientific formula or simply the use of a calculator.

(d) Words and phrases---

----"Definite"---Definition.

Oxford Advanced Learner's Dictionary, 9th Edition, A.S. Hornby ref.

(d) Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(5), 122(8) & 176(1)(a)---'Definite information" within the meaning of S. 122(5) of the Income Tax Ordinance, 2001 to justify amendments in the original assessment order---Scope---Processing 'definite information' through use of a scientific or mathematical formula to determine correct tax liability---Legality---Conversion formula used by Oil and Gas Regulatory Authority (OGRA) for converting MMBTUs of natural gas into kilograms of Compressed Natural Gas (CNG)---Taxpayers were engaged in the business of selling Compressed Natural Gas (CNG)---Tax authorities found disparity between the CNG sales reported by the taxpayers in their return of income with the corresponding purchase of the natural gas, which was transformed into CNG---Said conclusion was drawn after the prices of natural gas and its volume (MMBTUs) consumed by the respondents in the tax years in question were procured from Sui Northern Gas Pipelines Limited (SNGPL) and the prices of CNG for the tax years in question and the formula for converting MMBTUs of natural gas into kilograms of CNG were procured from Oil and Gas Regulatory Authority (OGRA)---Commissioner, Inland Revenue issued notices under subsection (9) read with subsection (5) of S. 122 of the Income Tax Ordinance, 2001 to confront the taxpayers to amend the assessment orders that were deemed to have been issued under the provisions of S. 120(1) of the Ordinance---Issue in the present case was whether the OGRA conversion formula constituted 'definite information' for determination of sales and, therefore the deemed assessment order passed under S. 120 of the Income Tax Ordinance, 2001 could be amended under S. 122(5) of Ordinance; Held, that information available with the tax authorities in the present case was the volume of natural gas purchased by each of the taxpayers and the rates of the natural gas as well as of the CNG that were prevalent in the tax years in question---Such information was procured from SNGPL and OGRA by exercising powers contained in S. 176(1)(a) of the Ordinance---After applying OGRA's conversion formula to the volume of the natural gas consumed, the tax authorities ascertained the kilograms of CNG produced by the taxpayers in each tax year in question---Wastage allowance of 11% in the conversion process was also granted---On the basis of the quantum of CNG so ascertained and taking into account the rates of CNG that were prevalent at the relevant time, the tax authorities reached the conclusion that the taxpayers had not been truthful in their disclosures as they underreported the sale of CNG in their returns of income---Based on such calculations, the amended assessment orders were issued---To prohibit the tax authorities from using the OGRA conversion formula would in reality amount to prohibiting the tax authorities from ascertaining the quantum of CNG sold by the taxpayers---If the tax authorities were denied the means to ascertain the quantum of CNG then no matter how disproportionate the sale of CNG to the consumption of natural gas was declared, the same had to be accepted by income tax authorities and the evasion of tax would go undetected---Application of any scientific or mathematical method to determine the quantum of sale of CNG for the purpose of determining the tax leviable under the Ordinance, by no stretch of imagination could be excluded from consideration---No legal infirmity was found in the manner in which the tax authorities ascertained the quantum of CNG produced from the volume of natural gas consumed in the process of conversion---Appeal was allowed accordingly and the amended assessment orders issued to the taxpayers were restored.

Dr. Farhat Zafar, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Javaid Iqbal, Commissioner IR, Mrs. Nafeesa Satti, Commissioner IR, Tahir Mehmood Bhatti, IRO and Amir Sultan, Law Officer for Appellants.

Hafiz Muhammad Idris, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.As. 992, 995 to 1001, 1004, 1005, 1007, 1012, 1017 of 2013, 21 and 22 of 2015)

Nemo for Respondents (in C.As. 993, 994, 1002, 1003, 1006, 1007 to 1010, 1013, 1015, 1206, 1207 of 2013 and 57 to 59/2015)

2017 S C M R 1427

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Faisal Arab, JJ

The COLLECTOR OF SALES TAX, GUJRANWALA and others---Appellants

Versus

Messrs SUPER ASIA MOHAMMAD DIN AND SONS and others---Respondents

Civil Appeals Nos. 682 to 684 of 2008, 131, 233, 253, 504, 219 and 220 of 2011, 678-683, 783 and 729-732 of 2012, 389-401 and 710-713 of 2013, 1632 of 2014, 565 of 2015 and 1424-1425 and 2470 of 2016 and Civil Appeal No. 733 of 2010 and Civil Appeal No. 1507 of 2016, decided on 31st March, 2017.

(On appeal against the judgments/orders dated 7.11.2007, 18.12.2007, 05.11.2008, 25.09.2009, 09.07.2009, 29.01.2009, 01.04.2008, 07.04.2008, 04.05.2012, 05.04.2012, 05.04.2012, 06.06.2012, 19.07.2012, 06.06.2012, 05.04.2012,13.07.2011, 05.04.2012, 07.12.2011, 10.09.2014, 21.01.2015, 17.11.2015, 22.03.216 of the Lahore High Court, Lahore passed in W.P.13331/2006, S.T.R.68/2006, S.T.R.13/2007, S.T.A.5/2005, S.T.R.42/2006, W.P.13499/2003, W.P.16171/2008, S.T.A.23/2006, S.T.A.2/2007, S.T.R.44/2010, S.T.R.29/2010, S.T.R.144/2011, S.T.R.95/2010, S.T.R.36/2011, S.T.R.26/2010, S.T.R.76/2010, S.T.R. 55/2009, S.T.R.82/2010, S.T.R.32/2010, S.T.R.73/2010 S.T.R.22/2010, S.T.R.77/2009, S.T.R.21/2010, S.T.R.43/2010,, S.T.R.85/2010, S.T.R.101/2010, S.T.R.21/2011, S.T.R.62/2011, S.T.R.68/2011, S.T.R.69/2011, S.T.R.75/2011, S.T.R.70/2011, S.T.R.22/2011, S.T.R.83/2011, S.T.R.130/2011, S.T.R.13/2011, S.T.R.114/2011, S.T.R.89/2014, S.T.R.14/2015, S.T.R.194/2015, S.T.R.195/2015 and S.T.R.58/2016 respectively)

(a) Interpretation of statutes---

----Mandatory/directory/provision, determination of--- Test--- Word "shall" used in a provision of law---Scope---Word 'shall' was to be construed in its ordinary grammatical meaning and normally the use of word 'shall' by the legislature branded a provision as mandatory, especially when an authority was required to do something in a particular manner---Ultimate test to determine whether a provision was mandatory or directory was that of ascertaining the legislative intent---While the use of the word 'shall' was not the sole factor which determined the mandatory or directory nature of a provision, it was certainly one of the indicators of legislative intent---Other factors included the presence of penal consequences in case of non-compliance, but the clearest indicator was the object and purpose of the statute and the provision in question---Court was duty bound to garner the real intent of the legislature as expressed in the law itself.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through Legal Heirs PLD 2007 SC 504; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Syed Zia Haider Rizvi and others v. Deputy Commissioner of Wealth Tax, Lahore and others 2011 SCMR 420; In re: Presidential Election, 1974 AIR 1974 SC 1682; Lachmi Narain v. Union of India AIR 1976 SC 714 and Dinesh Chandra Pandey v. High Court of Madhya Pradesh and another (2010) 11 SCC 500 ref.

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

----Ss. 11(4), first proviso [erstwhile], 36(3), first proviso [erstwhile], 11(5) & 74---Sales tax, recovery of---Show cause notice---Adjudication proceedings---Order-in-original---Limitation period---Question as to whether the limitation period contained in the first provisos to the erstwhile Ss. 11(4) & 36(3) of the Sales Tax Act, 1990, and the current S. 11(5) of the Act for passing an order thereunder was 'mandatory' or 'directory' in nature; held, that provisions of S. 11 and the erstwhile S.36 of the Sales Tax Act, 1990 ("the Act") were mandatory in nature, and any order passed beyond the time period stipulated therein would be invalid---Collector/Commissioner had the power to extend the time within which an order under provisions of S. 11 or the erstwhile S. 36 of the Act was to be passed---Such time could also be extended in a particular case or class of cases by the Federal Board of Revenue ("the Board") or the Commissioner if empowered by the Board, as per the provisions of S. 74 of the Act---Power to extend time in terms of S. 74 of the Act must be exercised within a reasonable time period of 'six months' from the date when the time period provided in the first provisos to S. 11 and the erstwhile section 36 of the Act and the extension granted thereunder had lapsed, and such power could only be exercised (by the Board under S. 74) to grant an extension of not more than a reasonable time period of 'six months'.

Plain language of the first provisos to the erstwhile sections 11(4) and 36(3) of the Sales Tax Act, 1990, clearly indicated that the tax officer was bound to pass an order within the stipulated time period of forty-five days, and any extension of time by the Collector could not in any case exceed ninety days. The Collector could not extend the time according to his own choice and whim, as a matter of course, routine or right, without any limit or constraint; he could only do so by applying his mind and after recording reasons for such extension in writing. Language of the first proviso was, thus, meant to restrict the officer from passing an order under sections 11(4) and 36(3) whenever he wanted. It also restricted the Collector from granting unlimited extension. The curtailing of the powers of the officer and the Collector and the negative character of the language employed in the said first provisos pointed towards their mandatory nature. This was further supported by the fact that the first provisos were inserted through an amendment. Prior to such insertion, undoubtedly there was no time limit within which the officer was required to pass orders under sections 11(4) and 36(3) of the Act. The insertion of the first provisos through an amendment reflected the clear intention of the legislature to curb the earlier latitude conferred on the officer for passing an order under the said sections. When the legislature made an amendment in an existing law by providing a specific procedure or time frame for performing a certain act, such provision could not be interpreted in a way which would render it redundant or nugatory. Thus, the first provisos to erstwhile sections 11(4) and 36(3) of the Act and the first proviso to the current section 11(5) of the Act were mandatory in nature, and the natural corollary of non-compliance with their terms would be that any order passed beyond the stipulated time period would be invalid.

Collector had the power to grant extensions within which an order under erstwhile sections 11(4) and 36(3) of the Act were to be passed, however, such extension could not exceed ninety days. It was not incumbent upon the Collector to extend the time within the currency of the initial time period of forty-five days; it was entirely possible to extend the time even after the expiry of the initial time period but the critical period in this regard was ninety days because at the expiry of this maximum period time could not be further extended. As per the first provisos to erstwhile sections 11(4) and 36(3) of the Act, if an officer failed to pass an order within forty-five days (the initial time period), the Collector need not grant an extension within such forty-five days, instead he could do so after the said number of days. However, since the latter part of the first provisos only allowed him to grant an extension of ninety days, thus any extension granted must not exceed the maximum limit of one hundred and thirty-five days (forty-five plus ninety) from the date of the show cause notice.

In terms of section 74 of the Act, the Federal Board of Revenue ("the Board") also had the power to extend the time within which an order under the erstwhile sections 11(4) and 36(3) of the Act and the current section 11(5) of the Act were to be passed. However this did not mean that in exercise of its power under section 74 of the Act, the Board would have unfettered and unbridled authority to extend time when, and for however long, it felt it expedient to do so. Rather time would only be extended in certain cases, after application of mind and that too for a reasonable amount of time. For the purposes of settling the reasonable time, after the expiry of the two time periods envisaged by the first provisos to erstwhile sections 11(4) and 36(3) of the Act, i.e. forty-five days [within which the order was to be passed] and a further ninety days [extended period under the first provisos], the Board should have six months within which it may grant extension of time under section 74 which (extension) could also not exceed six months. If such reasonable time also lapsed, then the rule of past and closed transaction shall apply because it was inconceivable in law that the Board would have infinite and unlimited time within which it could grant extensions under section 74. Board could not grant infinite and unlimited extension under section 74 to obliterate the vested rights that stood created in favour of the taxpayer on account of lapse of time.

Federal Land Commission through Chairman v. Rias Habib Ahmed and others PLD 2011 SC 842 ref.

(c) Interpretation of statutes---

----Casus omissus, principle of---Scope---Principle of reading in or 'casus omissus' was not to be invoked lightly, rather it was to be used sparingly and only when the situation demanded it---Courts should refrain from supplying an omission in the statute because to do so steered the courts from the realms of interpretation or construction into those of legislation.

Abdul Haq Khan and others v. Haji Ameerzada and others PLD 2017 SC 105 and Principles of Statutory Interpretation (13th Ed.) by Justice G. P. Singh ref.

(d) Interpretation of statutes---

----'Directory' and 'mandatory' provisions---Scope---When a statute required that a thing should be done in a particular manner or form, it had to be done in such manner, but if such provision was directory, the act done in breach thereof would not be void, even though non-compliance may entail penal consequences; however, non-compliance of a mandatory provision would invalidate such act.

Rubber House v. Excellsior Needle Industries Pvt. Ltd. AIR 1989 SC 1160 ref.

Izhar-ul-Haq, Advocate Supreme Court for Appellants (in C.As. 682-684/08, 131, 233, 253, 504/11, 389-401/13, 710, 711, 713/13, 219 and 220/11)

Dr. Farhat Zafar, Advocate Supreme Court, M. S. Khattak, Advocate-on-Record and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. 678-683/12, 783/12, 1632/14, 565/15, 1424, 1425, 1507, 2470/16 and 729-732/12).

Farhat Nawaz Lodhi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.A. 733/10).

Ch. M. Zafar Iqbal, Advocate Supreme Court for Appellants (in C.A. 712/13).

Nemo for Respondents (in C.A. 220/11).

Syed Naveed Andrabi, Advocate Supreme Court for Respondents (in C.As. 682/08, 397 and 398/13).

Riaz Hussain Azam, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A. 733/10).

Waqar Azeem, Advocate Supreme Court for Respondents (in C.As. 682-684/08).

Nemo for Respondents (in C.A. 131/11).

Nazir Mahmood Qureshi, Advocate Supreme Court for Respondents (in C.A. 233/11).

Nemo for Respondents (in C.A. 253/11).

Muhammad Iqbal Hashmi, Advocate Supreme Court for Respondents (in C.As. 504/11, 396, 399, 710/13).

Nemo for Respondents (in C.As. 678/12, 713/13, 683/12, 392/13).

Shazib Masud, Advocate Supreme Court for Respondents (in C.A. 390/13).

Mian Ashiq Hussain, Advocate Supreme Court for Respondents (in C.A. 400/13).

Nemo for Respondents (in C.As. 394, 401/13, 711/13, 1632/14, 2470/16, 565/15, 730/12, 712/13, 732/12).

M. Ajmal Khan, Advocate Supreme Court for Respondents (in C.A. 1507/16).

Ex parte for Respondents (in C.As. 219/11, 729/12, 731/12).

Nemo for Respondents (in C.As. 679-682, 783/12, 382, 391, 393, 395/13, 1424, 1425/16).

2017 S C M R 1468

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 313 of 2013, decided on 22nd May, 2017.

(Against the judgment dated 10.01.2013 passed by the Lahore High court, Lahore in Criminal Appeal No.107-J of 2008 and Murder Reference No.96 of 2008)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Benefit of doubt---Motive unproved---Chance and related eye-witnesses---Both the alleged eye-witnesses were very closely related to the deceased inasmuch as one of them was a brother of the deceased and the other an uncle--- Both the said eye-witnesses were also chance witnesses as they lived about three miles away from the scene of the crime, and they had advanced no reason whatsoever before the Trial Court explaining as to why they were present at the spot at the relevant time--- Such related and chance witnesses who did not explain any particular reason for their availability at the scene of the crime could not readily be believed and this was more so when they did not receive any independent corroboration---Alleged motive for the occurrence was that prior to the incident the deceased-lady had abused and insulted the accused for teasing her---Such alleged motive set up by the prosecution was not proved, and with the failure of the prosecution to prove the same there was no reason left with the accused to do away with the deceased-lady---Prosecution had failed to prove its case against the accused beyond reasonable doubt and the eye-witnesses produced by the prosecution in support of its case were nothing but planted and procured witnesses---Conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him--- Appeal was allowed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

2017 S C M R 1470

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Miss RUKHSANA MURRAD and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN---Respondent

Civil Appeals Nos. 2105 and 2106 of 2008, decided on 2nd May, 2017.

(On appeal against the judgment dated 18.1.2008 passed by the High Court of Sindh, Karachi in Spl. HCA No. 29/2001 and First Appeal No. 01/1998)

Banker and customer---

----Finance facility availed by loanee from Bank to settle its liability with the State Bank---Bank making payment to State Bank on behalf of the loanee (exporter)---When no finance directly disbursed to the loanee under the finance agreement, question as to whether the finance agreement was of any legal consequence---Exporter executed a finance agreement with the respondent-Bank to avail a running finance facility---To secure the financial facility, exporter pledged its goods, hypothecated its machinery, assigned the proceeds of its life insurance policy, and created an equitable mortgage on subject property---After the exporter failed to repay the finance facility, respondent-Bank filed a suit for recovery in the Banking Tribunal---Exporter claimed that after execution of finance facility, no amount was disbursed and all documents executed in such regard were forged---Banking Court dismissed the suit after holding that no amount was disbursed under the finance agreement---Exporter filed its own suit claiming damages contending that recoveries made under the finance agreement, when no finance was disbursed, caused a huge loss of business to the exporter since subject property was sold for a meagre amount, and proceeds of insurance policy were appropriated by the respondent-Bank---Suit for damages filed by exporter was decreed by the Banking Court---On appeal, the High Court decreed the suit for recovery filed by the respondent-Bank and dismissed the suit for damages filed by exporter---Validity---Case record showed that exporter had been availing various financial facilities under the State Bank's Export Refinance Scheme through the respondent Bank---Export Re-Finance Scheme allowed the exporters to avail finance from State Bank to finance their exports, which was adjustable against export proceeds---Where no exports were made or there was a shortfall, the State Bank imposed a penalty---When the exporter failed to meet its export target a penalty was imposed on it by the State Bank---For purposes of repaying such penalty, financial facility was sanctioned by respondent-Bank to facilitate the exporter to adjust its liability towards the State Bank, and ultimately, it was from the financial facility that the penalty was paid to the State Bank on behalf of exporter---Exporter in such circumstances could not claim that no amount was disbursed after the finance agreement with the respondent-Bank---In its evidence exporter did not deny either the finances availed by it from the State Bank against the Export Refinance Scheme nor the penalty imposed by State Bank under such Scheme---Exporter for four years never protested against adjustment of proceeds of its insurance policy and sale of subject property by the respondent-Bank---High Court had rightly decreed the recovery suit filed by respondent-Bank and dismissed the suit for damages filed by the exporter---Appeal was dismissed accordingly.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellants.

M. Rasheed Qamar, Advocate Supreme Court for Respondent.

2017 S C M R 1476

[Supreme Court of Pakistan]

Present: Mushir Alam and Mazhar Alam Khan Miankhel, JJ

KHAN MUHAMMAD through L.Rs and others---Appellants

Versus

Mst. KHATOON BIBI and others---Respondents

Civil Appeal No. 694 of 2008, decided on 15th May, 2017.

(On appeal from the judgment dated 5.10.2004 passed by the Lahore High Court, Lahore in C.R. No. 3562 of 1994)

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

----S. 42---Limitation Act (IX of 1908), Art. 120--- Suit for declaration seeking correction of revenue record---Limitation---Fresh cause of action---Scope---Generally, the time provided for filing a suit for declaration under Art. 120 of the Limitation Act, 1908 was six years---In cases of simple correction of revenue record, every fresh wrong entry in the record of rights would provide fresh cause of action provided the party aggrieved was in physical or symbolic possession of the property as owner.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration in relation to a claim of inheritance---Limitation---Where a right of inheritance was claimed, the claimant became co¬-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor died---Entry of mutations of inheritance was only meant for updating the revenue record and for fiscal purposes---No limitation would run against the co-sharer.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Riaz Ahmad and 2 others v. Additional District Judge and 2 others 1999 SCMR 1328; Mst. Suban v. Allah Ditta and others 2007 SCMR 635; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 and Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869 ref.

(c) Punjab Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 2, 2-A, 3 & 5---Muslim Family Laws Ordinance (VII of 1961), S. 4---Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 10(2) & 19-A---Occupancy rights, inheritance of---Scope---Daughter of pre-deceased son of propositus---Propositus was recorded as an occupancy tenant of subject land owned by the Provincial Government---Occupancy rights of propositus devolved upon his only surviving son to the extent of 1/2 shares and the remaining half went to the two widows of his pre-deceased son as holders of limited estate as per custom prevailing in the area---Plaintiff, who was the daughter of the pre-deceased son, filed a suit to claim her share in the inheritance of her father (pre-deceased son of the propositus) as per S. 4 of the Muslim Family Laws Ordinance, 1961 claiming that her rights were denied by her uncle (surviving son of propositus); held, that the provisions of the Punjab Muslim Personal Law (Shariat) Application Act, 1962, the Muslim Family Laws Ordinance, 1961, and Colonization of Government Lands (Punjab) Act, 1912 were attracted to the present case---Both the widows of pre-deceased son being female were not entitled to full ownership of the subject land under S. 2-A of the Punjab Muslim Personal Law (Shariat) Application Act, 1962---Widows were holders of limited estate only, which terminated after promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1962 and the property held by them as limited estate would go back to the legal heirs of pre-deceased son---Daughter and widow of pre-deceased son, both his legal heirs, were entitled to inherit according to their respective shari share out of the share of the pre¬deceased son, which he would have received at the time of opening of succession of the propositus---Appeal was dismissed accordingly.

Mst. Sarwar Jan and others v. Mukhtar Ahmad and others PLD 2012 SC 217; Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82; Muhammad Yaqub and others v. Muhammad Ibrahim and others 2002 CLC 819; Muhammad Murad and 12 others v. Allah Bakhsh and 34 others 2006 MLD 286 and Mst. Ghulam Bano alias Gulab Bano and others v. Mst. Noor Jehan and others 2005 SCMR 658 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1, 2, 3(ii) and 5.

Ex parte for Respondents Nos. 3(i), (iii) - (v) and 4.

2017 S C M R 1506

[Supreme Court of Pakistan]

Present: Mushir Alam and Maqbool Baqar, JJ

Messrs NATIONAL TRANSMISSION AND DESPATCH COMPANY LTD.---Petitioner

Versus

PUB CORPORATION and others---Respondents

Civil Petitions Nos. 274-K of 2015, 680-K of 2016 and C.M.A. 1065-K of 2016, decided on 19th December, 2016.

(Against the judgment dated 27.2.2015 passed by High Court of Sindh, Karachi in H.C.As. Nos. 152 and 153 of 2009)

(a) Sindh Municipal Committee (Octroi) Rules, 1964---

----Rr. 35(b) & 36---Sindh Local Government Ordinance (XII of 1979), S. 62---Water and Power Development Authority (WAPDA)---Octroi tax, exemption from---Scope---Concerned union council appointed respondent-corporation as its agent to collect octroi tax on goods on behalf of the former---Water and Power Development Authority ("the Authority"), the predecessor of petitioner company, brought in various electrical equipment within the jurisdiction of the concerned union council but did not pay the outstanding dues of octroi tax---Said authority gave an undertaking to pay off outstanding octroi dues in installments, however out of the total amount due only part payment was made and subsequently contended that it was exempt from payment of the octroi tax---Validity---Power to levy, increase, reduce, suspend, exempt or abolish any tax, rate, toll or fee or to exempt any person or class of persons or property/goods or class of property/goods squarely vested in the Provincial Government (section 62 of the Sindh Local Government Ordinance, 1979)---Concerned union council on the direction issued by the Provincial Government in terms of subsection (1) of S. 62 of the Ordinance was obligated per subsection (2) thereof to, issue notification to give effect to such directions of the Provincial Government---Authority failed to show that any such direction either to exempt it or for that matter goods sought to be imported within the octroi limits of the subject union council in terms of clause (d) to subsection (1) of S. 62 of the Ordinance was ever issued---Any person, who sought any exemption from payment of octroi tax, was required to make such declaration in terms of R. 35(b) of the Sindh Municipal Committee (Octroi) Rules, 1964 at the time of bringing goods within the limits of the concerned union council---In case no exemption was claimed, then in terms of R. 36, statutory presumption was attracted that the goods or class of goods were intended for consumption, use or sale within the octroi limits, thus liable to octroi tax---Authority never claimed any exemption from payment of such tax at the time of import through octroi post within the contemplation of R. 35(b) and failed to establish on record that either the Authority or the goods brought within the concerned municipal limits were exempted from payment of octroi tax---Petition for leave to appeal was dismissed accordingly.

(b) Interpretation of statutes---

----Fiscal statute---Scope---Fiscal statute was to be strictly construed and imposition of any impost and/or exemption from payment thereof, could not be claimed on mere assumption or supposition.

Badar Alam, Advocate Supreme Court for Petitioner.

Abdus Ali, Advocate Supreme Court for Respondents.

2017 S C M R 1514

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

ASJAD JAVED alias JAVED AKHTAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior, Islamabad and others---Respondents

Civil Petition No. 826 of 2016, decided on 18th April, 2017.

(On appeal from the judgment dated 01.02.2016 passed by the Islamabad High Court, Islamabad in I.C.A. No. 249 of 2015)

(a) Transfer of Offenders Ordinance (XXXVII of 2002)---

----Ss. 2(c) & 9--- Offender convicted and sentenced in a foreign country transferred to Pakistan---Sentence---Scope---Accused convicted by competent court of law of foreign country could be transferred to Pakistan pursuant to mutual agreement between the two countries, and upon being transferred to Pakistan, he would be governed by the laws of Pakistan as if it was a sentence imposed by a court in Pakistan---Where the sentence awarded to the accused was not compatible with the laws of Pakistan, a Court of competent jurisdiction in Pakistan could adopt such a sentence to make it compatible with the laws of Pakistan.

(b) Transfer of Offenders Ordinance (XXXVII of 2002)---

----S. 12--- Offender convicted and sentenced in a foreign country transferred to Pakistan---Remissions in sentence---Scope---Pardon/ remissions in the sentence of imprisonment awarded to an offender by a court in a foreign country, could also be granted/extended to him under the laws of Pakistan---Such an accused could also claim any remission of his sentence of imprisonment to which he became entitled to on the date of his transfer in accordance with law relating to the remissions of sentence in the foreign country.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Sohail Mehmood, DAG and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 2.

Razzaq A. Mirza, Additional A.-G. Punjab for Respondent No.4.

2017 S C M R 1519

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Qazi Faez Isa and Ijaz ul Ahsan, JJ

RASHID ALI CHANNA and others---Petitioners

Versus

MUHAMMAD JUNAID FAROOQUI and others---Respondents

Civil Review Petitions Nos. 125, 130, 137 and 138 of 2017, decided on 2nd May, 2017.

(Against judgment dated 13.3.2017 of this Court, passed in Suo Motu Case No. 18 of 2016)

(a) Sindh Public Service Commission Act (XI of 1989)---

----Ss. 4(1) & 7(i)---Constitution of Pakistan, Arts. 188 & 242---Review of judgment of the Supreme Court---Chairman and Members of Sindh Public Service Commission ('Commission'), appointment of---Nepotism and corruption in selection and appointment process for civil servants---Illegalities and discrepancies committed by the Commission in conducting written tests and interviews---On receipt of information that the Chairman and Members of the Commission had been appointed in violation of the law because they lacked the requisite qualifications in terms of the Sindh Public Service Commission Act, 1989, the Supreme Court took cognizance of the matter through the judgment under review---Allegations were also made that the said Chairman and Members of the Commission were indulging in nepotism and corruption by not selecting candidates on the basis of merit but for extraneous considerations---Source of information as long as it was accurate in matters of such nature was inconsequential, and it had not even been alleged that the information which triggered the proceedings in the judgment under review was false or incorrect---On cognizance being taken by the Supreme Court when notices were issued, the Chairman along with five Members of the Commission tendered their resignations---Record of the Commission including the record of the recruitment process undertaken by the Commission was meticulously examined by the Supreme Court, and serious illegalities and discrepancies were found to have been committed in holding examination and announcing results of the written tests and interviews which were elaborately spelt out in the judgment under review---Systematic and well thought out acts and omissions on the part of the Chairman and Members of the Commission were committed to reward a few and deprive many without there being any objective and fair criteria and transparent process in place which could withstand the process of judicial scrutiny and accountability---Supreme Court had found serious flaws in the process of selection which pointed towards lack of transparency to facilitate nepotism and favoritism that could not be condoned or countenanced---Impugned judgment under review had rightly refrained from recording any findings on the basis of the de facto doctrine or discussing the same having come to the conclusion that not only was the legality of appointments of the Chairman and Members of the Commission open to serious question but the mode, manner and procedure adopted by the Commission for selection of recommendees was also illegal, unjust, non-transparent and suspect---In addition, elaborate guidelines had been provided in the judgment under review to ensure fairness, transparency and integrity of the selection process---No error, defect, flaw or other sufficient cause had been pointed out in the judgment under review to set aside the same---Review petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 188---Review of judgment of the Supreme Court---Grounds and scope---Different conclusion possible on basis of facts---Even if on the basis of facts and circumstances brought before the Supreme Court, different conclusion could possibly have been drawn in the judgment under review, the same did not constitute a ground for exercise of review jurisdiction by the Supreme Court---Scope of review was limited to correction of mistakes and errors apparent on the face of the record or for any other sufficient cause.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners (in C.R.P. No. 125 of 2017).

Ms. Asma Jahangir, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.R.P. No. 130 of 2017).

Sh. Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.R.P. No. 137 of 2017).

Syed Ali Zafar, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioners (in C.R.P. No. 138 of 2017).

Nemo for Respondents (in all cases).

2017 S C M R 1543

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Qazi Faez Isa, JJ

ZAHID IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 58 of 2013, decided on 19th April, 2017.

(Against the judgment dated 23.06.2011 passed by the Lahore High Court, Lahore in Criminal Appeal No. 199-J of 2005 and Murder Reference No. 628 of 2005)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Death sentence, confirmation of---Case of triple murder---Brutality shown in committing murder---Present case was a case of triple murder in which a husband, his wife and their minor son aged about 8/9 years were mercilessly done to death at a time when they were peacefully present in their own house---Occurrence had taken place in daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein it had been mentioned that the sole perpetrator of the alleged offence had remained unknown but some description of the culprit had been recorded in the FIR--- After the accused's arrest in connection with the present case he was put to a test identification parade in which the eye-witnesses had correctly identified the accused with reference to the different roles played by him during the occurrence--- Eye-witnesses had also correctly identified the appellant before the Trial Court during the trial---Even two minor inmates of the house where occurrence took place had identified the accused as the one who had committed the murders in issue---Ocular account furnished by the eye-witnesses had received full support from the medical evidence and sufficient corroboration from recovery of a firearm from the accused's custody which firearm had matched with four crime-empties secured from the place of occurrence, as confirmed by a positive report received from the Forensic Science Laboratory--- Eye-witnesses produced by the prosecution had no reason to falsely implicate the accused in a case of present nature, and they had made consistent statements and despite being chance witnesses they had advanced reasons for their availability at the scene of the crime at the relevant time which reasons were neither unbelievable nor extraordinary---Accused had demonstrated extreme barbarity by not only using a pistol but also a pair of scissors so as to cause injuries to three inmates of the house of occurrence---Accused deserved no sympathy in the matter of death sentence awarded to him---Appeal was dismissed accordingly.

Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

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

2017 S C M R 1546

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar and Faisal Arab, JJ

HAKEEM and others---Appellants/Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos. 6-K, 7-K of 2015 and Jail Petition No. 88 of 2015, decided on 19th June, 2017.

(On appeal against the judgment dated 19.1.2015 passed by the High Court of Sindh, Karachi in Criminal Jail Appeals Nos.S-279, 280, 281 and 290 of 2010)

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

----Ss. 302(b), 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt---Reappraisal of evidence---Benefit of doubt---Complainant saw the incident while hiding in a bunker which was at a distance of about 30/40 feet and with the light bulb also at a distance of several feet from the bunker, it was very difficult for the complainant to identify several accused persons with certainty---Even otherwise, neither empties were recovered from the place of incident nor any firearm was recovered from the accused persons---Old blood feud also existed between the parties, therefore, the possibility that accused persons were already known to the complainant could not be ruled out yet the accused persons (except for one of them) were not nominated in the FIR, but were picked up by the prosecution witnesses in the identification parade---Prosecution has failed to prove its case against the accused persons beyond reasonable doubt---Accused persons were consequently acquitted of all charges against them by giving them benefit of doubt---Appeal was allowed accordingly.

(b) Police Rules, 1934---

----R. 26.32(1)(d)---Qanun-e-Shahadat (10 of 1984), Art. 22---Penal Code (XLV of 1860), Ss. 302(b), 324 & 452---Identification parade---Several accused persons lined up with dummies for identification---Legality---For purposes of identification it was unreasonable to mix several accused persons with dummies as such a large number of persons would only confuse the identifying witnesses---Proper course was to have separate identification parades for each accused---In the present case, seven accused persons were lined up with 22 dummies at the same time for identification purposes---Such identification parade could not be relied upon to award the accused persons punishment of life imprisonment---Appeal was allowed accordingly and accused persons were acquitted of the charges levelled against them.

Bacha Zeb v. The State 2010 SCMR 1189 and Lal Pasand v. The State PLD 1981 SC 142 ref.

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

----Art. 22---Identification parade---Evidentiary value---During an identification parade, if the accused was identified without reference to any role played by him in the incident, the same was of no evidentiary value.

Azhar Mehmood v. State 2017 SCMR 135 ref.

Mehmood A. Qureshi, Advocate Supreme Court for Appellants/Petitioners.

Zafar A. Khan, Additional P-G. for the State.

2017 S C M R 1572

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Maqbool Baqar, JJ

WARIS ALI and 5 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 104 of 2010, decided on 4th May, 2017.

(On appeal from the judgment dated 20.5.2009 passed by the Lahore High Court, Lahore in Crl. Appeals Nos. 722-724 of 2006 and Crl. Appeals Nos. 127/J and 128/J of 2007 and M.R. No. 27-T of 2006)

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

----Ss. 7(a) & 7(c)---Penal Code (XLV of 1860), Ss. 302(b), 449 & 458---Act of terrorism, qatl-i-amd, house-trespass in order to commit offence punishable with death---Reappraisal of evidence---Sentence, reduction in---Death sentence converted to imprisonment for life---Conviction under S. 7 of Anti-Terrorism Act, 1997 converted to one under S. 302(b), P.P.C.---Report of the crime was lodged at the crime spot after more than two hours---Complainant lodged the crime report, instead of the injured witnesses, who could speak coherently at that time---Injured victims with bleeding wounds were kept at the spot for hours, till the police arrived, thus, question arose as to why they were not moved quickly to the hospital for medical aid and treatment---Admittedly, the motive for the crime related to the complainant and he should have been the prime target, however, he was not caused any harm during the occurrence and his life was spared---In the present case, the acts committed and executed were the consequence of personal motive and despite being gruesome in nature, no element of "terrorism" defined by the legislature was found---Parties had a blood feud since long and the object to be achieved was to take revenge---Conviction of the accused persons under S. 7(a) of the Anti-Terrorism Act, 1997 was set aside and the same was converted to one under S.302(b), P.P.C., and the death sentences awarded to all the accused persons were reduced to life imprisonment---Appeal was disposed of accordingly.

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

----Ss. 6 & 7(a), 7(b) & 7(c)---Act of terrorism---Mens rea---Scope---In cases of terrorism, "mens rea" was essentially the object to carrying out terrorist activities to overawe the State, the State institutions, the public at large, destruction of public and private properties, assault on the law enforcing agencies or the public at large---Ultimate object and purpose of such acts was to terrorize the society or to put it under constant fear, while in ordinary crimes committed due to personal vengeance/blood feud or enmity, the element to create fear or sense of insecurity in the society or public by means of terrorism was always missing.

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

----Ss. 6 & 7---Act of terrorism---Scope---Occurrence which resulted due to a personal motive/enmity for taking revenge did not come within the fold of "terrorism"---Mere fact that a crime for personal motive was committed in a gruesome or detestable manner, by itself would not be sufficient to bring the act within the meaning of terrorism or terrorist activities---Furthermore, in certain ordinary crimes, the harm caused to human life might be devastating, gruesome and sickening, however, this by itself would be not sufficient to bring the crime within the fold of terrorism or to attract the provisions of Ss. 6 or 7 of the Anti-Terrorism Act, 1997, unless the object intended to be achieved fell within the category of crimes, clearly meant to create terror in people and/or sense of insecurity.

(d) Interpretation of statutes---

----"Special law"---Scope---In construing and interpreting a special law the court had to look at the reasons and background, which influenced the mind of the legislature in enacting the special law, and the history of events, which had occurred preceding the enactment of the special law.

(e) Interpretation of statutes---

----"Special law"---Scope---For enactments meant to deal with a particular subject and which were purposive in nature, the courts were required not to depart from its literal construction, and the same shall be narrowly interpreted---Widening the scope of such (special) statutes would defeat the legislative intent---Enlarging the scope of the special law was not permissible because the result and object intended to be achieved by the legislature shall go to waste.

(f) Interpretation of statutes---

----"Penal statute"---Scope---Whenever a penal statute required interpretation, it shall be interpreted in a way which favoured the accused person and not the State---If statute was susceptible to two interpretations, then it must be interpreted in favour of the accused.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and King v. Aung Nyum (Q.B.) 42 Crl.L.J. 125 ref.

(g) Constitution of Pakistan---

----Art. 4(1)---Right to be dealt with in accordance with law---Scope---If any citizen was triable under the ordinary penal law of the land, then, treating him harshly under a special law, not clearly applicable to him, would be a violation of Art. 4(1) of the Constitution.

Ch. Fawad Ahmed, Advocate Supreme Court, Faisal Hussain Ch., Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record (Absent) for Appellants.

Rana Abdul Majeed, Additional P.-G. Punjab for the State.

2017 S C M R 1588

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

IRFANULLAH KHAN MARWAT---Appellant

Versus

M. ABDUL RAUF SIDDIQUI and others---Respondents

Civil Appeal No. 1041 of 2014, decided on 11th May, 2017.

(Against judgment dated 25.07.2014 of the Election Tribunal, Karachi passed in Election Petition No. 3 of 2013)

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

----S. 70---Ground for declaring election as a whole void---Election for seat of Provincial Assembly---Corrupt or illegal practices---Result of election materially affected---Returned-candidate (appellant) won by a margin of 6826 votes---Runner-up candidate made allegations of rigging, corrupt and illegal practices all over the constituency---Counterfoil verification report prepared by National Database and Registration Authority (NADRA) showed that about 18000 votes were invalid for various reasons and could not have been counted in favour of either side---Number of invalid votes were substantially in excess of the lead of the returned candidate---Out of such invalid votes 14,232 votes had invalid or no Computerized National Identity Card (CNIC) numbers mentioned on them---In such circumstances it was justified to presume that said votes were not genuine and could not have been included in the tally of either party---Moreover a number of votes were found to be from out of the constituency or were duplicated---Likewise, the fingerprints on 3270 counterfoils failed authentication, and also had to be discarded---Where the genuineness about 18,000 votes was open to serious doubts, the election had ex facie been materially affected---Allegations of corrupt and illegal practices on part of the returned candidate on the day of election and the conduct of the polling staff prima facie established that the result of the election was materially affected by the acts of the returned candidate as well as his agents and the election staff---Supreme Court directed the Election Commission to de-notify the returned candidate from being a Member of the Provincial Assembly and hold fresh elections in the constituency in accordance with law.

Abdul Hafeez Khan v. Muhammad Tahir Khan Loni 1999 SCMR 284 and Muhammad Arif Muhammad Hassani v. Amanullah 2016 SCMR 1332 distinguished.

Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani 2016 SCMR 722; Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi 2016 SCMR 750 and Muhammad Siddique Baloch v. Jehangir Khan Tareen PLD 2016 SC 97 ref.

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

----S. 70---Ground for declaring election as a whole void---Election could be declared void as a whole if the Election Tribunal was satisfied that the result of an election had been materially affected by the failure of any person to comply with the provisions of the Representation of the People Act, 1976 ("the Act")---Even if the prevalence of corrupt or illegal practices at the election on the part of the winning candidate was not proven but there had been a failure on the part of any person including the election staff to comply with the provisions of the Act, which had demonstrably affected the result, the election could still be declared as a whole to be void.

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

----S. 70---Ground for declaring election as a whole void---Corrupt or illegal practices --- Result of election materially affected---Returned-candidate (appellant) secured 37,130 votes and won by a margin of 6826 votes--- Prevalence of corrupt and illegal practices was proven only to the extent of six polling stations and not the rest---Question as to whether the election as whole could be declared to be void when corrupt and illegal practices were proven only to the extent of six polling stations; held that the counterfoil verification report for 92 polling stations prepared by National Database and Registration Authority (NADRA) showed that about 18000 votes were invalid, which may have been attributed to non-compliance with the provision of the Representation of the People Act, 1976---Election Tribunal in such circumstances had sufficient and adequate powers to declare the election as a whole to be void---Supreme Court directed the Election Commission to de-notify the returned candidate and hold fresh elections in the constituency in accordance with law.

Farooq H. Naik, Senior Advocate Supreme Court along with Barrister Shiraz Rajpar, Advocate for Appellant.

Adnan Iqbal Chaudhry, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

2017 S C M R 1598

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Messrs AL-HAJ ENTERPRISES (PVT.) LTD.---Petitioner

Versus

COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE (MCC) and others---Respondents

Civil Petition No. 2226 of 2016, decided on 22nd May, 2017.

(On appeal against the judgment dated 20.04.2016 passed by the Islamabad High Court, Islamabad in Customs Reference Application No.31/2015)

Customs Rules, 2001---

----R.564(4)---Interpretation of R. 564(4) of the Customs Rules, 2001---Scope---Export of fuel to International Security Assistance Force (ISAF) in Afghanistan---Variation in the quantity of fuel declared for export and the one certified by ISAF at the place of destination---Rule 564(4) of the Customs Rules, 2001 required that in case there was a variation of more than one percent in the quantity declared and the one certified by ISAF at the place of destination, action 'shall be taken' against the concerned carrier and other persons found involved---Post export audit showed that that fuel exported to Afghanistan was short supplied, which was in excess of the one percent permissible under R.564(4)---Petitioner-company, which was responsible for transporting the fuel, was issued show cause notices for the short supply---Collector of Customs, passed order-in-original requiring the petitioner to pay taxes and duties of the short supplies amounting to Rs.6,070,342/- along with default surcharge---Customs Appellate Tribunal reduced the quantum of duties and penalty from Rs.6,070,342 to Rs.3,622,683---Petitioner argued that a strict procedure was followed for delivery of fuel as the tankers were locked and sealed and yet evaporation in hot weather was bound to take place that could reach beyond one percent limit for which the petitioner could not be held responsible; that provisions of R. 564(4) of the Customs Rules, 2001, ought to be interpreted in a way that in case of variation beyond one percent, there should be some adjudication as to the real cause behind the shortage, and in case the carrier justified the loss for no fault of his own then he should not be penalized for the breach of the limit provided in the Rule---Validity---Consequence for short supply beyond one percent had been clearly provided in R. 564(4) of the Customs Rules, 2001, which rule was fully attracted to the case of the petitioner and accordingly applied in the present case---No legal error was committed by any of the forums below, which required interference from the Supreme Court---Petition was dismissed accordingly and leave was refused.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Muhammad Habib Qureshi, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Shahid Jan, Deputy Collector Customs for Respondents.

2017 S C M R 1601

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

BASHARAT ALI---Appellant

Versus

MUHAMMAD SAFDAR and another---Respondents

Criminal Appeal No. 312-L of 2009, decided on 11th May, 2017.

(On appeal from the judgment dated 26.11.2008 passed by the Lahore High Court, Bahawalpur Bench in Crl. A. No. 234/04/BWP and M.R. No. 55/04/BWP)

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

----S. 302(b)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Contradictions in statements of witnesses---Present case depended upon the statement of the deceased-complainant who after lodging of the FIR died on the very next day---Statements of two eye-witnesses, doctor and investigating officer contained glaring and serious contractions---Doctor, in his examination-in-chief, stated that when the deceased was brought to the hospital, his condition was not satisfactory, meaning thereby that he was not in a condition to record his statement but at the same time he stated that on the basis of his report, police recorded the deceased's statement on the same day---Doctor had admitted during the cross-examination that statement of the deceased was not recorded in his presence and he simply verified same at the behest of the investigating officer---Doctor in his statement had made it clear that no one from the public was present when statement of the deceased was recorded in the hospital which contradicted the statement of one of the eye-witnesses, who in his statement admitted that besides the investigating officer ten to fifteen persons were present there---Doctor also could not remember as to who brought the deceased to the hospital but when confronted he admitted that it was a police constable but at the same time he stated that the deceased was brought by his relatives which made the statement of the doctor surprising because none of the relatives was mentioned in the Medico Legal Certificate---Doctor, on the day of medical examination of the deceased, was sitting in the police station in connection with some personal affairs, as such the apprehension of the accused party with regard to personal relations between the police and the doctor and also admission on the part of doctor that he verified the statement of the deceased on asking of the investigating officer could not be ruled out---According to the doctor, the statement of the deceased was neither recorded in his presence nor signed by him or read over or explained to the deceased, therefore, it put a question mark on the genuineness of statement of the deceased, which was the basis of the FIR---In view of the numerous contradictions in the statements of the prosecution witnesses, the prosecution's story could not be believed and that too when the same has been disbelieved to the extent of all the acquitted co-accused---Accused had rightly been acquitted by the High Court through the impugned judgment---Appeal against acquittal was dismissed accordingly.

(b) Criminal trial---

----Witness---Contradictions in statements of witnesses---If material contradictions were found in the statements of the witnesses the benefit thereof would go to the accused.

Ch. M.S. Shad, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Appellant.

Respondent No. 1 in person.

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

2017 S C M R 1639

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan, Miankhel, JJ

MUHAMMAD ZAFAR and another---Appellants

Versus

RUSTAM ALI and others---Respondents

Criminal Appeal No. 311-L of 2009 and Jail Petition No. 958 of 2009, decided on 24th May, 2017.

(Against the judgment dated 12.11.2008 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeals Nos. 410, 10, 19 and M.R. No. 9 of 2004)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appeal agaisnt acquittal---Reappraisal of evidence---No active role except a proverbial lalkara was attributed to acquitted-accused---Accused, held, was rightly acquitted by the High Court---Appeal against acquittal was dismissed accordingly.

(b) Appeal against acquittal---

----Double presumption of innocence---Scope---Every person was innocent in a criminal trial, unless proven guilty and upon acquittal by a court of competent jurisdiction, presumption of innocence doubled.

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

----S. 302(c)---Qatl-i-amd---Reappraisal of evidence---Accused was attributed firearm injury in the chest of the deceased---Said injury was observed by the doctor during the post mortem examination conducted on the dead body of deceased---Accused was rightly convicted for the murder of the deceased---Appeal was partly dismissed accordingly.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Conviction under S. 302(b), P.P.C. converted to S. 302(c), P.P.C.---Out of thirteen accused persons twelve had been acquitted by the Trial Court and the High Court except the present accused---High Court had rightly observed that none of the parties came with the whole truth and both of them had tried to twist and mould the story of occurrence in its favour, thus, the real igniting cause and as to what immediately preceded the occurrence, remained suppressed by respective parties---High Court had observed in its judgment that it seemed more likely that the complainant party proceeded towards the disputed place and restrained the accused party from irrigating the disputed land and the altercation that followed between them formed the igniting cause---In view of such aspects the case against the present accused was covered under S. 302(c), P.P.C. and not under S. 302(b), P.P.C.---Conviction recorded against accused under S. 302(b), P.P.C. by the courts below was converted into one under S. 302(c), P.P.C. and his sentence of life imprisonment was reduced to twenty years rigorous imprisonment---Appeal was partly allowed accordingly.

Aurangzaib Mari, Advocate Supreme Court for Appellant (in Criminal Appeal No. 311-L of 2009).

Mian M. Tayyab Watto, Advocate Supreme Court for Petitioner (in J.P. No. 958 of 2009).

Nemo for Respondents Nos. 1 to 5 (in Criminal Appeal No. 311 of 2009).

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

Aurangzaib Mari, Advocate Supreme Court for the Complainant.

2017 S C M R 1645

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 373-L of 2009, decided on 16th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 16.006.2009 passed in Crl. A. No. 1112 of 2005 and Murder Reference No. 646 of 2005)

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Firearm injuries on the person of deceased were also attributed to two acquitted co-accused persons---Three co-accused persons were acquitted by the Trial Court and their acquittal was not assailed---Recovery of weapon was allegedly effected at the instance of accused but the said recovery was inconsequential as no empty cartridge was collected from the place of occurrence and no report of Forensic Science Laboratory to establish that the weapon was in working order was available on record---Recoveries of firearms were also effected at the instance of two acquitted co-accused persons---High Court had rightly disbelieved the motive part of the occurrence---No independent corroboration was available on record for maintaining the conviction and sentence of the accused on a capital charge---Accused was acquitted of the charge while extending him benefit of doubt---Appeal was allowed accordingly.

(b) Maxim---

----Falsus in uno falsus in omni, principle of---Applicability---Principle of falsus in uno, falsus in omni was not applicable in Pakistan's system of administration of justice relating to criminal cases and the courts were required to sift grain from the chaff in order to reach at a just conclusion; but if some accused were acquitted on the basis of same set of evidence the said evidence could be believed to the extent of the other accused facing the same trial, however, the courts had to be at guard and were required to look for corroborating evidence for maintaining conviction in such like cases.

Munir Ahmad Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 1648

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL REHMAN SADIQ and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petitions Nos. 1398-L, 1674-L of 2013 and C.M.A. No. 44-L of 2014, decided on 11th April, 2017.

(Against the order dated 31.7.2013 passed in the Lahore High Court, Lahore in I.C.A. No. 294 of 2013)

(a) Police Order [22 of 2002]---

----Art. 112---Posts of Assistant Sub-Inspectors (ASIs) in "Punjab Police"---25% quota for promotion cases for graduates serving as Police Constables/Head Constables---Eligibility---Police constables from other wings such as Traffic Police Wardens, Police Constabulary and Patrolling Police were not eligible to apply against the said 25% quota---Service Rules for Punjab Highway Patrol, Traffic Police Wardens and Punjab Constabulary were not only separate but their method of appointment and promotion track were also separate and further, in each wing, the requirement and skill were different---Provincial Police Department while exercising powers conferred under Art. 112 of the Police Order, 2002 had approved the recruitment criteria and terms and conditions of service for members of the Punjab Highway Patrol, perusal whereof revealed that it not only provided recruitment as well as promotion criteria for the members of Punjab Highway Patrol but also laid the procedure of merger in executive branch and at a specified level---High Court had rightly disallowed the participation of the candidates from other forces/wings of the Punjab Police such as Traffic Police Wardens, Police Constabulary and Patrolling Police against the quota in question---Petition for leave to appeal was dismissed accordingly.

(b) Civil service---

----Violation of service rules---Any practice in violation of (service) rules did not confer any enforceable right.

(c) Civil service---

----Service rules, enforcement of--- Scope--- Applicability and/or enforcement of service rules was not contingent with the date such rules were notified---Civil servant could not claim that service rules would not apply to him till they were notified.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioners (in both Petitions).

Ishtiaq A. Khan, Advocate Supreme Court for Petitioners (in C.M.A. No. 44-L of 2014).

Nemo for Respondents.

2017 S C M R 1652

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX KARACHI---Appellant

Versus

Messrs HASSAN ASSOCIATES (PVT.) LTD. and another---Respondents

Civil Appeals Nos. 26 of 2009 and 228 of 2010, decided on 16th May, 2017.

(On appeal against the judgment dated 16.10.2008 and 27.04.2009 of the High Court of Sindh, Karachi passed in I.T.C. 293 of 1992 and I.T.A. 594 of 2000 respectively)

(a) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 23(1)(xviii)---Permissible deductions falling within the purview of S. 23(1)(xviii) of the Income Tax Ordinance, 1979 [since repealed]---"Encashment of bank guarantee" for breach of contract by the assessee---Damages or compensation paid in the course of carrying on business---Scope---Assessee-company was awarded a construction contract by Provincial Government subject to furnishing of a performance bond (bank guarantee)---Provincial Government encashed the bank guarantee for alleged breach of contract by the assessee---Assessee claimed the said amount as expenditure in the income tax return filed for the relevant assessment year and also filed a civil suit against such encashment---Income Tax Officer disallowed the said amount as expenditure and added it to the respondent's income on the ground that it (the amount) was recoverable from the Provincial Government---Legality---Any expenditure incurred as a penalty or fine paid on account of an infraction, breach or violation of law would not be allowed to be an expenditure laid out wholly or exclusively for the purpose of the business of the assessee---Whereas any amount paid as damages or compensation was an expenditure laid out wholly or exclusively for the purpose of the business of the assessee---Said amount was a revenue loss incurred in the course of carrying on of the business and therefore an admissible deduction under S. 23(1)(xviii) of the Income Tax Ordinance, 1979---In the present case, the contract was executed between the assessee and the Provincial Government, in connection with the business of assessee, who failed to perform its part of agreement, as such the Provincial Government encashed the performance bond---Encashment of bank guarantee could at best be considered to be damages or compensation paid to the Provincial Government for unsatisfactory performance of a contract by the assessee which was a revenue loss incurred by the latter in the course of carrying on its business---Transaction between the parties was purely a business transaction and there was no infraction or violation of any law whatsoever---Forfeiture of an amount under a contract could not be equated with a fine or penalty incurred due to infraction or violation of any law---Further, the civil suit filed by the assessee against the Provincial Government having been dismissed, amount in question was no more adjustable---High Court had rightly set aside the judgments of the fora below and allowed the amount in question as permissible deductions falling within the purview of S. 23(1)(xviii) of the Income Tax Ordinance, 1979---[Commissioner of Income Tax v. Premier Bank of Pakistan [1999 PTD 3005 = 1999 SCMR 2013], held not applicable].

Commissioner of Income Tax v. Premier Bank of Pakistan 1999 PTD 3005 = 1999 SCMR 2013 held not applicable.

Commissioner of Income Tax and Premier Bank Ltd., Karachi (1999) Tax 589 (SC Pak); Commissioner of Income Tax, Karachi v. Eastern Automobiles Ltd., Karachi (1967) 15 Tax 233; Karachi Steam Navigation Co. Ltd. v. Commissioner of Income Tax (1967) 15 Tax 73; Hind Mercantile Corporation Ltd. v. Commissioner of Income Tax, Madras (1963) 49 ITR 23; Commissioner of Income Tax (Central) v. Inden Biselers (1973) 91 ITR 427; Additional Commissioner Income Tax v. Rustam Jehangir Vakil Mills Ltd. (1976) 103 ITR 298; Commissioner Income Tax v. Tarun Commercial Mills Co. Ltd. (1977) 107 ITR 172; Commissioner Income Tax v. Surya Prabha Mills (P.) Ltd. (1980) 123 ITR 654 and Commissioner Income Tax v. Bharat Vijay Mills Ltd. (1981) 128 ITR 633 ref.

(b) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 23(1)(xviii)---State Bank of Pakistan Foreign Exchange Manual, Chap. 13, Para. 44---Permissible deductions falling within the purview of S. 23(1)(xviii) of the Income Tax Ordinance, 1979---Scope---Fine/penalty imposed for violation of a law---State Bank imposed a penalty on the respondent-company (assessee) in terms of Para. 44 of Chap. 13 of the (State Bank of Pakistan) Foreign Exchange Manual---Respondent (assessee) claimed the said amount as an expenditure in its income tax returns, however, the Assessing Officer refused to allow the same on the ground that such amount was a penalty incurred on account of infraction of law and was thus an impermissible deduction---Respondent (assessee) contended that the State Bank charged an 'interest' and not a fine or penalty under any law---Validity---Any expenditure incurred as a penalty or fine paid on account of an infraction, breach or violation of law would not be allowed to be an expenditure laid out wholly or exclusively for the purpose of the business of the assessee---Perusal of Para. 44 of Chap. 13 of the (State Bank of Pakistan) Foreign Exchange Manual showed that amount payable under the same was not a mere interest or additional amount demanded by the State Bank, rather the word used therein was" fine" which was akin to a penalty---Foreign Exchange Manual contained the basic regulations issued by the Federal Government and the State Bank under the provisions of the Foreign Exchange Regulations Act, 1947, therefore, it had the force of law and any violation thereof would entail the penal consequences provided therein---Since the respondent failed to comply with the provisions of the Manual, a fine was charged at the prescribed rate; it was essentially a fine for infraction of the law, and not damages or compensation for breach of a contract---Assessing Officer had rightly treated the amount paid as a penalty and an impermissible deduction in terms of S.23(1)(xviii) of the Income Tax Ordinance, 1979---[Commissioner of Income Tax v. Premier Bank of Pakistan [1999 PTD 3005], held applicable.

Commissioner of Income Tax v. Premier Bank of Pakistan 1999 PTD 3005 = 1999 SCMR 2013 held applicable.

Muhammad Siddiq Mirza for Appellant (in both cases).

Ms. Lubna Pervez, Advocate Supreme Court for Respondents (in C.A. No. 26 of 2009).

Iqbal Salman Pasha, Advocate Supreme Court for Respondents (in C.A. No. 228 of 2010).

2017 S C M R 1662

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ZAHOOR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 110-L of 2009, decided on 25th May, 2017.

(On appeal against the judgment dated 13.01.2009 passed by the Lahore High Court, Lahore in Crl. Appeal No. 368 of 2003 and M.R. No. 232 of 2003)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Matter was reported to the police within one hour of the occurrence, thus, there was hardly any chance of consultation and deliberation in the intervening period---Postmortem of body of deceased was conducted on the same day just seven hours after the occurrence---Name of the accused was mentioned in the FIR and he was assigned the specific role of firing at the deceased---Complainant and another eye-witness provided the ocular account and they gave specific reasons for their presence at the place of occurrence as, according to them, they along with the deceased were proceeding to harvest some crop---Although the complainant and eye-witness were related to the deceased but they had no previous enmity or ill-will against the accused and they could not be termed as interested witnesses in the absence of any previous enmity---Both witnesses remained consistent on each and every material point---Minor discrepancies in their statements were not helpful to the defence because with the passage of time such discrepancies were bound to occur---Occurrence took place in broad daylight and both the parties knew each other so there was no probablity of mistaken identity and in the absence of any previous enmity there could be no substitution by letting off the real culprit especially when the accused alone was responsible for the murder of the deceased---Medical evidence fully supported the ocular account as far as injuries received by the deceased, lapse of time between the injury and death and between death and postmortem---Both the courts below had rightly convicted the accused under S. 302(b), P.P.C.---Appeal was partly allowed accordingly.

(b) 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---Failure to prove motive was not fatal to the prosecution case, although it was one of the mitigating factors (to reduce quantum of sentence awarded to accused).

(c) 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 in the present case, asserted by the prosecution, was not proved and the actual motive remained shrouded in mystery---Moreover, recovery of weapon from accused, in the absence of any positive report of Forensic Science Laboratory, was inconsequential and both the courts below had rightly disbelieved the said recovery---Said two factors were sufficient mitigating circumstances---Consequently, conviction of accused under S. 302(b), P.P.C. was maintained but his sentence of death was reduced into imprisonment for life--- Appeal was partly allowed accordingly.

Azam Nazeer Tarrar, Advocate Supreme Court for Appellant.

Muhammad Ahsan Bhoon, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for the Complainant.

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

2017 S C M R 1666

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

MUHAMMAD SHARIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Civil Petition No. 376-L of 2017, decided on 14th April, 2017.

(Against the order dated 9.1.2017 passed by the Lahore High Court in W.P. No. 21541 of 2015)

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 25---Possessing assets beyond known sources of income---Voluntary return/plea bargaining---Contention of petitioner (a patwari) that he accepted the voluntary return offer made by National Accountability Bureay (Bureau) under pressure and to save his honour, and in consequent thereto paid a sum to the Bureau; that the voluntary return was liable to be annulled and the Bureau should be directed to refund the said amount---Validity---Inquiry against the petitioner for having "assets beyond means" was initiated, and the inquiry officer dug out assets and Bank accounts of the petitioner which were found beyond his known sources of income---Bureau offered the petitioner an option for voluntarily return of the illegally gained money---Record further reflected that the petitioner vide his letter asked the Bureau to intimate him his liability ascertained by the inquiry officer and also the grounds for ascertaining such liability so that he could opt for the option---Petitioner was duly informed about his liability and ultimately he paid the amount in question without raising any grievance in respect of the amount or the method adopted by the inquiry officer to ascertain his liability---Petitioner ultimately availed the benefit of voluntary return, and now at a belated stage he could not be allowed to question his own voluntary return or the method adopted by the inquiry officer to determine his liability---Petition for leave to appeal was dismissed accordingly.

Qazi Misbah ul Hassan, Advocate Supreme Court for Petitioner.

Arif Mehmud Rana, Advocate Supreme Court along with Ms. Nazia Javed, Dy. Assistant Director, NAB for Respondents.

2017 S C M R 1668

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

SARDAR MUHAMMAD and another---Appellants

Versus

ATHAR ZAHOOR and others---Respondents

Criminal Appeals Nos. 290-L and 291-L of 2009, decided on 10th May, 2017.

(On appeal from the judgment dated 27.04.2009 passed by the Lahore High Court, Lahore in C.M.A. No. 884/03 and M.R. No.791/03)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place in broad-day light and was witnessed by the complainant and another eye-witness and they had provided the ocular account of the incident strictly in line with the version given in the FIR---Both the parties were residents of the same area and were known to each other, therefore, there was no question of mis-identification of the assailant---Accused had alleged that he was involved in the case due to political rivalries and enmity with the deceased but could not produce anything on record in such regard---Recovery of weapon on the pointation of accused and matching of the empty recovered on the day of occurrence was yet another circumstance establishing the involvement of the accused in the commission of offence---Courts below had rightly convicted the accused under S. 302(b), P.P.C.---Appeal was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Case of single fire shot without repetition---Motive as alleged was not proved by the prosecution which reflected that occurrence might have been the result of a sudden affair which fact had been concealed by both the sides---High Court rightly converted the death sentence awarded to accused to imprisonment for life---Appeal was dismissed accordingly.

Nemo for Appellants (in Criminal Appeal No. 290-L of 2009).

Irfan Malik, Advocate Supreme Court for Appellants (in Criminal Appeal No. 291-L of 2009).

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

2017 S C M R 1672

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

TARIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 94-L of 2009, decided on 18th May, 2017.

(On appeal against the judgment dated 21.1.2009 passed by the Lahore High Court, Lahore, in Crl. Appeals Nos. 575, 696 and 843 of 2003 and Murder Reference No. 600 of 2003)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Fifteen persons were nominated in the FIR to be present at the place of occurrence; out of which 12 were armed with "sotas" who allegedly caused multiple injuries on the person of deceased---Other three persons were alleged to be present at the place of occurrence with fire arm weapons and allegedly fired ineffectively---During trial eye-witnesses assigned the same role to all the fifteen nominated persons but the Trial Court acquitted all the co-accused persons except the present accused---Although the case of all the acquitted co-accused persons was at par with the accused as far as their role during the occurrence was concerned, but they were acquitted merely upon the opinion of the police regarding their innocence which otherwise was inadmissible and irrelevant---Acquittal of the co-accused persons fully established that the evidence of the eye-witnesses of ocular account was disbelieved to the extent of said co-accused persons, therefore, the conviction of accused could only be sustained if there was independent corroboration, which presently was lacking because the motive asserted by the prosecution indicated that there was enmity between the parties and the said enmity, being double edged, could be reason for false implication of the accused---Acquittal of all co-accused persons, having the similar role as that of the accused, on the same evidence, also entitled the accused to the same treatment---Furthermore, the doctor had observed multiple injuries on the deceased and the said injuries were also attributed to the acquitted co-accused persons---Evidence on record did not establish as to which injury out of the multiple injuries was caused by the accused---Alleged recovery of "sota" from the accused was also not helpful to the prosecution as it was not stained with blood---One of the co-accused made a confessional statement admitting that the accused and co-accused persons had caused injuries to the deceased, but said confessional statement appeared to have been recorded in connivance with the complainant party, as said co-accused was subsequently acquitted by the Trial Court on the basis of compromise with complainant party---Conviction and sentence awarded to accused under S.302(b), P.P.C. was set aside in circumstances and he was acquitted of the charge of murder---Appeal was allowed accordingly.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellant.

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

2017 S C M R 1696

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

MUHAMMAD ABDUR REHMAN QURESHI---Appellant

Versus

SAGHEER AHMAD---Respondent

Civil Appeal No. 671 of 2009, decided on 25th July, 2017.

(Against judgment dated 21.04.2009 of Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in R.F.A. No. 47 of 2001)

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

----S. 55---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Time essence of the contract---Principles---In view of the commercial nature of the property business and a widespread trend of rapid increase in prices of immovable properties, a seller could not be left at the mercy of the buyer to bind him in an agreement to sell and then delay completion of the contract for as long as he may wish hiding behind an archaic legal principle that in contracts involving immovable properties, time was generally not of the essence---Said rule was settled many centuries ago when prices of real estate remained constant and stagnant for years on end, however said rule had to be revisited and revised keeping in view the changed circumstances and the ground realties of the real estate market---In this day and age, on account of rapid increase in population demand for real estate had increased---On account of increasing demand and limited supply, property prices rose rapidly, at times in a matter of months, therefore, the principle that in real estate transactions, time was not of the essence could not indiscriminately be applied---Said principle must be interpreted and applied specifically considering the facts and circumstances of each case to balance equities, keeping the standards of reasonability in mind and ensuring that injustice was not done to either side.

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

----S. 22---Discretion of court as to decreeing specific performance---Scope---Courts were authorized to decline specific performance on equitable grounds---Specific performance was essentially an equitable relief which could lawfully be declined if the Court came to the conclusion that it was unjust and inequitable to do so---Where circumstances under which a contract was made were such as to give the plaintiff an unfair advantage over the defendant, though there may not be fraud or misrepresentation on plaintiffs' part, the relief of specific performance may be denied---Court had discretion to decline specific performance of an agreement even in the absence of an obvious impediment in such behalf and despite the fact that such agreement may possess all necessary particulars entitling the specific performance of the contract---Discretion available with the Courts must be relatable to the circumstances in which the agreement came about, subsequent conduct of the parties and the consequences of grant or refusal of the relief of specific performance.

Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344; Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189; Rab Nawaz v. Mustaqeem Khan 1999 SCMR 1362 and Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506 ref.

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

----Ss. 19 & 22---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property---Discretion of court as to decreeing specific performance---Scope---Scope of S. 22 of the Specific Relief Act, 1877 had been broadened by providing for awarding reasonable compensation to the parties in order to avoid injustice and balance the equities, keeping in view all relevant circumstances which may include factors like the rate of inflation, rate of return on investment, appreciation or depreciation of the value of real estate, passage of time and change in the circumstances or status of the suit property.

Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506 ref.

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

----Ss. 19 & 22---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property---Discretion of court as to decreeing specific performance---Scope---Value of immoveable property increasing manifold---Specific performance of an agreement dated 12-12-1994 was being sought in the year 2017 i.e. 22 years later when the value of the property in dispute had multiplied exponentially---Value of the property had increased tenfold times during such period---Even if for the sake of argument, it was agreed for a moment that a case for grant of relief of specific performance was made out, the question of exercise of discretion in favour of the vendee/respondent would still need to be considered in light of the principle that such exercise of discretion may not lead to miscarriage of justice and an unfair advantage to the vendee---Conduct of the vendee ex facie was not above board and he had not acted fairly and equitably---Case record showed that acts or omissions on the part of the vendor/appellant were not the sole reason for the deal not materialzing, therefore, it would neither be just nor proper to force the vendor to sell his property at such low a price and bear such a huge financial loss---Said reason (amongst many others) was why the suit filed by the vendee/respondent seeking discretionary equitable relief must be dismissed---Court was also mindful of the fact that a substantial amount (including amount deposited in court) belonging to the vendee had remained blocked since the year 2000 which could have been utilized by him in other business activities or deposited with a commercial bank for substantial returns, therefore, considering the rate of return granted by commercial banks and keeping in mind the depreciation in the value of money and the effect of inflation, a sum of Rs. 10 million, over and above refund of earnest money by the vendor and return of the entire amount deposited by the vendee together with accruals (if any) would constitute adequate compensation for the vendee---Supreme Court after observing that this would balance the equities and represent a just and fair resolution of the dispute between the parties, directed that the amounts deposited by the vendee with the respective court shall be refunded to him together with returns that may have accrued on the said amounts since the same were deposited, and that over and above the said amount, the vendee shall pay a sum of Rs.10 million to the vendee by way of compensation---Appeal was allowed accordingly.

Kh. M. Farooq, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (Absent) for Appellant.

S. Najmul Hassan Kazmi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (Absent) for Respondent.

2017 S C M R 1710

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Mst. ANWAR BEGUM---Appellant

Versus

AKHTAR HUSSAIN alias KAKA and 2 others---Respondents

Criminal Appeal No. 314-L of 2009, decided on 12th May, 2017.

(On appeal from judgment of Lahore High Court, Lahore dated 18.11.2008 passed to Criminal Appeal No. 211 of 2002, Criminal Appeal No.212 of 2003, Criminal Revision No. 218 of 2003 and M.R. No. 230 of 2003)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---Occurrence took place at about 08.00 p.m., and allegedly on the same night formal FIR was registered at 08.45 p.m. i.e. within forty five minutes of the occurrence---Promptitude posed by the complainant in setting the machinery of law in motion was, however, negated from the other circumstances of the case as postmortem examination on the dead body of deceased was conducted on the next day---Furthermore, the prosecution witness who escorted the dead body to the mortuary stated in the opening sentence of his cross-examination that he remained in the mortuary during the whole night but neither the investigating officer nor any other police official came to him during the night till the postmortem, which clearly suggested that the relevant papers were not provided to the doctor---Both the witnesses of ocular account were chance witnesses and had no residence or place of business near the place of occurrence---Testimony of said chance witnesses remained uncorroborated and it was highly unsafe to rely upon their testimony---Medical evidence was not in line with the ocular account---Alleged recoveries of weapons at the instance of accused persons and positive report of Forensic Science Laboratory to the extent of one of the accused was also inconsequential as the said report was not put to the accused persons while examining them under S. 342, Cr.P.C.---High Court had rightly acquitted the accused---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd---Chance witness---Testimony of chance witness, reliance upon---Scope---In order to maintain conviction of a convict on capital charge on the basis of testimony of chance witnesses the court had to be at guard and corroboration was to be sought for relying upon such evidence.

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

----S. 342---Examination of accused by the court---Scope---Piece of evidence not put to an accused while examining him under S. 342, Cr.P.C. could not be used against him for maintaining his conviction.

(d) Appeal against acquittal---

----Double presumption of innocence---Scope---Every accused was innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubled---Strong and cogent reasons were required to dislodge such presumption.

Sardar Abdul Majeed Dogar, Advocate Supreme Court for Appellant.

Nemo for Respondent No. 1.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Respondent No.2.

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

2017 S C M R 1714

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

COLLECTOR OF CUSTOMS (EXPORT) and others---Appellants

Versus

SAIFUDDIN---Respondent

Civil Appeal No. 1079 of 2011 and C.M.A. No. 2273 of 2013, decided on 17th May, 2017.

(Against the judgment dated 08.09.2011 of the High Court of Sindh, Karachi passed in C.P. No. 1337 of 2010)

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

----Ss. 18(2) & 18(3)---Regulatory duty on exported goods, levy of---Permissibility---Subsection (2) of S. 18 of Customs Act, 1969 provided the general rule that all goods exported from Pakistan shall not be charged with export duty, whereas subsection (3) provided the exception to such general rule, in that it specifically authorized the Federal Government to impose a regulatory duty, by notification in the official Gazette, on all or any of the goods imported or exported---Combined reading of both the said subsections made it abundantly clear that neither did they conflict with each other nor did either have supremacy over the other---Notification issued by the Federal Government under S. 18(3) of the Customs Act, 1969 imposing a regulatory duty on certain export items was valid and legal and such duty would be chargeable from the date of the notification.

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

----Ss. 18(3), 31 & 131(1)(a)---Regulatory duty on exported goods, levy of---Relevant date for determination of the duty---Regulatory duty shall be charged at the rate applicable on the date when the "goods declaration" was delivered or filed---Date of entering into or conclusion of contract was not relevant for such purpose.

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

----Ss. 18(3), 31 & 131(1)(a)---Regulatory duty on exported goods, levy of---Notification issued by Federal Government imposing regulatory duty---Scope---Relevant date for determination of the rate of regulatory duty on exported goods was the date when the "goods declaration" was delivered or filed---Exported goods for which the declarations were filed on or after the date of the notification imposing regulatory duty, such goods were liable to regulatory duty as envisaged by the notification---Goods for which the declarations were filed prior to the issuance of the notification, such exports were not liable to regulatory duty under the notification---With respect to goods for which declarations were filed prior to the issuance of the notification, but were subsequently amended after the date of the notification, then as long as the 'particulars of the goods', required to be correct and complete as per S. 131(1)(a) of the Customs Act, 1969 remained the same, any subsequent substitution, amendment or revision in respect of any other information contained in the declaration, was immaterial for the purpose of S. 31 of the Act, and regulatory duty would not be leviable.

Shakeel Ahmed, Advocate Supreme Court for Appellants.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2017 S C M R 1721

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ZAFAR IQBAL alias ZAFARULLAH KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 45-L of 2009, decided on 8th May, 2017.

(On appeal from the judgment dated 14.11.2006 passed by the Lahore High Court, Lahore in Crl. A. No. 1289 of 2001 and M.R. No.534 of 2001)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---After recording of the FIR, the statement of deceased, then injured, was recorded in the hospital in presence of the complainant, which was thumb impressed by the witnesses and attested by the doctor---Occurrence was witnessed by the complainant, and two eye-witnesses, who in their statements, recorded in the court, narrated the same version as given in the FIR---Accused had admitted his presence at the spot and also admitted firing a single fire shot at the deceased but raised the plea of self-defence, however, he did not produce any evidence to support such plea---Accused did not even appear as a witness to record his statement on oath to establish his plea of self-defence---Conviction of accused under S. 302(b), P.P.C. was maintained in circumstances---Appeal was partly dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Occurrence had taken place at the spur of the moment due to sudden provocation without any pre planning and pre-meditation---Accused fired a single fire shot at the deceased without repeating same---Accused had no motive to murder the deceased---Death sentence awarded to accused was reduced to imprisonment for life in circumstances---Appeal was partly allowed accordingly.

Sohail Darr, Advocate Supreme Court for Appellant.

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

Mian Ghulam Hussain, Advocate-on-Record for the Complainant.

2017 S C M R 1724

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Manzoor Ahmed Malik, JJ

SHAHBAZ AHMED CHAUDHRY and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 254-L of 2017, decided on 22nd March, 2017.

(Against the order dated 09.02.2017 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 16693-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 427, 448, 511, 379, 356 & 506---Mischief causing damage to the amount of fifty rupees, house-trespass, theft, assault or criminal force in attempt to commit theft of property carried by a person, criminal intimidation---Ad interim pre-arrest bail, confirmation of---Occurrence in issue had taken place when a bailiff of a court was executing a lawfully passed ejectment order---FIR was lodged with a delay of eleven days despite the fact that the local police had statedly become involved in the issue on the very day of occurrence---Collective allegations had been levelled against about a dozen persons in the FIR and no individual role had been attributed to the present accused persons--- All the offences involved in the present case other than those under Ss. 356 & 379, P.P.C. were bailable whereas the offences under Ss. 356 & 379, P.P.C. were punishable with imprisonment for two years and three years respectively---Police had confirmed before the Supreme Court that at the time of the occurrence the present accused persons and co-accused were not armed with any weapon and no property belonging to the complainant had been snatched away---Accused persons had already joined the investigation and nothing was to be recovered from their custody---Allegation of mala fide on the part of the complainant party could not be brushed aside in the backdrop of admitted litigation between the parties---Ad interim pre-arrest bail already allowed to the accused persons was confirmed in circumstances.

Tahir Aslam Qureshi, Advocate Supreme Court for Petitioners with Petitioners in person.

Ch. Riasat Ali, Advocate Supreme Court on behalf of Anwar-ul-Haq Pannu, Advocate Supreme Court for the Complainant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Atif Nawaz, S.I. for the State.

2017 S C M R 1727

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ARSHAD BEG---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 301-L of 2009, decided on 24th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 22.05.2009 passed in Criminal Appeal No. 389 of 2003 and Murder Reference No. 46 of 2004)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place in broad daylight and was reported to the police with due promptitude as the FIR was registered just one hour after the occurrence---Ocular account was furnished by brothers of the deceased, and they were cross-examined by the defence at length but they remained consistent on all material aspects of the case---Even otherwise present case was a case of a single accused and substitution in such like cases was a rare phenomenon as normally kith and kin of the deceased (in present case real brothers) would not implicate an innocent person by letting off the real culprits---Both the witnesses of ocular account were present at the spot and had witnessed the occurrence---Ocular account was substantially supported by medical evidence---Prosecution case stood proved against the accused beyond any shadow of doubt and his conviction under S. 302(b), P.P.C. was fully justified---Appeal was partly dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Vague motive was set up in the FIR---Evidence with respect to motive was furnished only by the complainant, who during his cross-examination admitted that the motive incident did not take place in his presence, and that he did not remember who told him about the said motive incident---Complainant also admitted that there was no enmity with the accused---Absence of previous enmity between the parties and a vague motive set up by the complainant, which could not be proved at trial, were mitigating circumstances to reduce the death sentence awarded to the accused---Sentence of death awarded to accused was altered to imprisonment for life in circumstances---Appeal was partly allowed accordingly.

Akhtar Nawaz Raja, Advocate Supreme Court for Appellant.

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

2017 S C M R 1730

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

GHULAM ABBAS alias GAMAN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 668-L, 678-L and 909-L of 2017, decided on 12th July, 2017.

(On appeal from orders dated 13.4.2017, 21.3.2017 and 28.2.2017 passed by the Lahore High Court, in Cr. Misc. Nos. 5362-B, 621-B and 578-B of 2017, respectively)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Cross-version FIRs---Incident in issue was a fight wherein several people died or were injured on both sides---Incident apparently took place in front of the house of one of the parties, yet, it appeared to be the result of a sudden fight---Absence of pre-meditation could not be overruled in such circumstances---Present case was a case of two versions and two FIRs and it was difficult to determine as to which party was the aggressor---Counsel for both sides had no objection if accused persons from both sides were granted bail---Bail was granted to accused persons accordingly.

Hasnat Ahmed Khan, Advocate Supreme Court for Petitioners (in Cr. Ps. 668-L and 678-L of 2017).

Azam Nazeer Tarar, Advocate Supreme Court for Petitioners (in Cr. P. 909-L of 2017).

Ch. Zubair Ahmed Farooq, Additional P.-G. along with Fazal Karim, S.I./I.O. for the State.

Azam Nazeer Tarar, Advocate Supreme Court for Respondent No.2 (in Cr. Ps. 668-L and 678-L of 2017).

Hasnat Ahmed Khan, Advocate Supreme Court for Respondent No.2 (in Cr. P. 909-L of 2017).

2017 S C M R 1732

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

SHAH NAWAZ and another---Appellant/Petitioner

Versus

MUHAMMAD ASHRAF and 2 others---Respondents

Criminal Appeal No. 300-L of 2009 and Jail Petition No. 996 of 2009, decided on 11th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 29.10.2008 passed in Crl. A. No. 428 of 2002, Criminal Rev. No.224 of 2002, Crl. Rev. No. 339 of 2004 and M.R. No. 477 of 2002)

Penal Code (XLV of 1860)---

---Ss. 302(b) & 337-F(iii)---Qatl-i-amd, ghayr-jaifah-mutalahimah---Reappraisal of evidence---Accused had been attributed two firearm injuries on the chest of deceased, and other firearm injuries on the person of the injured-complainant---Ocular account furnished by complainant and another witness was fully supported by the medical evidence---Recovery of a weapon at the instance of the accused during the course of investigation coupled with the positive report of Forensic Science Laboratory further corroborated the prosecution case---Prosecution case stood fully proved against the accused beyond any shadow of doubt---High Court had already taken a lenient view due to tender age of accused and reduced his sentence of death to imprisonment for life---Appeal was dismissed accordingly.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Appellant (in Crl. A. No. 300-L of 2009).

Sh. Khizar Hayat, Senior Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondent No.1.

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

Nemo for Petitioner (in Jail Petition No. 996 of 2009).

2017 S C M R 1787

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar and Sajjad Ali Shah, JJ

MUHAMMAD MOIZUDDIN and another---Appellants

Versus

MANSOOR KHALIL and another---Respondents

Civil Appeals Nos. 149-K and 150-K of 2015, decided on 25th July, 2017.

(Against the judgment dated 29.5.2015 passed by the High Court of Sindh in Appeal No. 29 of 2010)

(a) 'Past and closed transaction', principle of---

----Scope and purpose---Concept of past and closed transaction was evolved to protect and safeguard accrued and vested rights of the parties under a statute which subsequently was found and declared ultra vires, for the simple reason that such declaration was always prospective unless the Court specifically gave a retrospective effect to such declaration, by declaring the statute as non est i.e. it never existed in the eyes of law.

Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Hussain Badshah v. Akhtar Zaman 2007 PLC (C.S.) 157; Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Al-Tech Engineers and Manufacturers v. Federation of Pakistan 2017 SCMR 673 and Shahid Pervaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

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

----S. 15---Transfer of Property Act (IV of 1882), S. 54---Sale of mortgaged property by Bank through auction---'Past and closed transaction'---Scope---Provisions of S. 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were declared ultra vires the Constitution by the High Court in the case of Muhammad Umer Rathore v. Federation of Pakistan (2009 CLD 257), and subsequently upheld by the Supreme Court in National Bank of Pakistan and 117 others v. Saif Textile Mills Ltd., and another (PLD 2014 SC 283)---Effect---All transactions with respect to sale of mortgaged property which had taken place and were finalized before such declaration by the High Court were to be protected under the principles of "past and closed transactions"---Cases where sale itself had not been challenged, or such challenge had remained unsuccessful, and the sale proceeds stood adjusted towards outstanding liability of the Bank/principal debtor, and sale deed in favour of the auction purchaser stood registered under the provisions of S. 15 of the Ordinance declared ultra vires the Constitution (but possession was not handed over), would also be saved from the effect of such declaration being "past and closed transactions".

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

----S. 54---Sale of immoveable property---Essential elements---Essential elements of sale were, first, the parties; second, the subject matter; third, the transfer or conveyance, and, fourth, price or consideration.

Adnan Iqbal Chaudhry, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants (in C.A. No. 149-K of 2015).

Khalil Ahmed Siddiqui, Advocate Supreme Court for Appellants (in C.A. No. 150-K of 2015).

Mirza Sarfraz Ahmed, Advocate Supreme Court and A.A. Khan, Advocate-on-Record (Absent) for Respondent No.1.

2017 S C M R 1797

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ALLAH WASAYA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 60-L of 2009, decided on 9th May, 2017.

(On appeal against the judgment at the Lahore High Court, Multan Bench dated 15.10.2008 passed in Criminal Appeal No. 185, M.R. No. 211 and Criminal Revision No. 88 of 2002)

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Reappraisal of evidence---Incident was reported to the police on the same morning, just one hour after its happening despite the fact that distance between the police station and the place of occurrence was eight kilometers---Both the accused and co-accused had been charged for the murder of two persons and launching a murderous assault upon the injured witness---Ocular account was furnished by the complainant and another eye-witness which was fully supported by the medical evidence furnished by the doctors---Prosecution case to the extent of accused and co-accused was further corroborated by the recovery of weapons of offence at their instance during the course of investigation and positive report of Forensic Science Laboratory---Prosecution successfully proved its case against both the accused and co-accused beyond any shadow of doubt---Appeal was partly dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Absence of direct motive---No direct motive was alleged against the accused, therefore, taking it as a mitigating circumstance, the sentence of death awarded to him was altered to imprisonment for life--- Appeal was partly allowed accordingly.

Ch. Walayat Ali, Advocate Supreme Court for Appellants.

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

2017 S C M R 1801

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

KARACHI DEVELOPMENT AUTHORITY through Director General, Civil Centre, Gulshan-e-Iqbal, Karachi---Appellant

Versus

Mst. HAWA BAI and 6 others---Respondents

Civil Appeals Nos. 319 to 323 of 2006, 86-K and 87-K of 2011, decided on 22nd February, 2017.

(Against the judgments dated 17.12.2003/5.11.2004/ 11.11.2004/5.7.2010 of the High Court of Sindh, Karachi passed in C.Ps. Nos. D-1215 of 2003, D-771, D-936, D-1122 and D-945 of 2004, D-70 and D-924 of 2005)

Constitution of Pakistan---

----Art. 185(3)---Leave refusing order passed by the Supreme Court---Such order was not law enunciated by the Supreme Court and had no binding effect.

Sh. Jamil Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in all cases).

Ex parte Respondents (in C.A. No. 319 of 2006).

Respondent No.1 in person (in C.A. No. 320 of 2006).

Shehryar Qazi, Additional A.-G. for Respondent No. 2 (in C.A. No. 20 of 2006).

Ex parte Respondent No. 3 (in C.A. No. 320 of 2006).

Rasheed A. Rizvi, Senior Advocate Supreme Court and Adnan Iqbal Chaudhry, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 321 of 2006).

Shehryar Qazi, Additional A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 2 (in C.A. No. 321 of 2006).

Abdul Qadir, Advocate Supreme Court for Respondents Nos. 1 to 7 (in C.A. No. 322 of 2006).

Shehryar Qazi, Additional A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 8 and 9 (in C.A. No. 322 of 2006).

Rasheed A. Rizvi, Senior Advocate Supreme Court and Adnan Iqbal Chaudhry, Advocate Supreme Court for Respondents Nos.1 to 3 (in C.A. No. 323 of 2006).

Shehryar Qazi, Additional A.-G. for Respondents Nos. 4 and 5 (in C.A. No. 323 of 2006).

Ex parte for Respondents Nos. 6 and 7 (in C.A. No. 323 of 2006).

Ex parte for Respondents (in C.A. No. 56-K of 2011).

Nemo for Respondents Nos. 1 and 2 (in C.A. No. 87-K of 2011).

Shehryar Qazi, Additional A.-G. for Respondent No. 4 (in C.A. No. 87-K of 2011).

2017 S C M R 1835

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Mst. MEHBOOB BIBI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 21-L of 2009, decided on 22nd May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 22.03.2007 passed in Crl. A. No. 1372 of 2006, Crl. A. No. 1535 of 2006 and C.S.R. No. 45-T of 2006)

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(e)---Kidnapping or abduction for ransom, common intention---Reappraisal of evidence---Benefit of doubt---FIR was registered four days after the alleged abduction---Complainant-father tried to explain such delay in reporting the crime to the police by mentioning in the FIR that the accused side had threatened to kill his son-abductee, however said explanation did not appear to be plausible---Chances of deliberations, consultations and concoction of the prosecution story before setting the machinery of law in motion could not be ruled out---Prosecution and witnesses of ocular account put forward the case that abductee was taken from the place of occurrence in two vehicles and registration number of one vehicle was also disclosed---During course of investigation, however, no vehicle was recovered and no investigation was conducted qua the owner of the vehicle whose registration number was disclosed in the FIR---Complainant had alleged that ransom amount was demanded by the abductors through his cell phone number, but no call data was produced before the Trial Court to establish whether any telephone calls were received on complainant's mobile number, and no effort was made to trace the owners of the SIM cards used for demanding ransom---Prosecution never alleged that the abductee was recovered from the accused persons rather the complainant narrated in the FIR that after receiving the ransom amount his son had been released by the accused side---Complainant stated during his cross-examination that his son made a telephone call from some Public call office (PCO) and he alone went there in his vehicle for picking up his son---Abductee contradicted his father (complainant) on this aspect of the case when he stated during his cross-examination that his father and his brother had come to pick him up from the place of his release---Certain articles belonging to the abductee were allegedly recovered from the accused persons, however, it was not safe to rely on these recoveries because no detail of any article which the alleged abuctee was carrying at the time of his abduction were disclosed in the FIR---Recoveries of firearms at the instance of some of the accused persons were also not of much help to the prosecution as no specific weapon was mentioned in the FIR and it was simply mentioned in the FIR that all the accused persons were armed with firearms---Payment of ransom to the accused persons was not proved by the complainant as no denomination of currency notes was disclosed either in the FIR or before the Trial Court---Complainant stated during his cross-examination that he had not drawn the ransom amount from the Bank but arranged it through some persons, but said persons were not brought forward as witnesses---When the factum of giving ransom by the complainant for the release of his son was not proved the alleged recovery part of the ransom amount at the instance of the accused persons was inconsequential and could not be relied for maintaining conviction and sentence of the accused persons---Prosecution case against the accused persons was doubtful in nature---Appeal was accordingly allowed and while extending the benefit of doubt, all the accused persons were acquitted of the charges.

Aftab Farrukh, Senior Advocate Supreme Court and Ijaz Feroze, Advocate Supreme Court for Appellants.

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

2017 S C M R 1841

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

RIAZ UL HAQ and others---Petitioners

Versus

MUHAMMAD ASGHAR and others---Respondents

Civil Petition No. 821-L of 2013, decided on 28th August, 2017.

(Against order dated 15.03.2013 of Lahore High Court, Multan Bench, Multan, passed in Civil Revision No. 1459 of 2011)

Civil Procedure Code (V of 1908)---

----O. VIII, R. 10---Failure of defendants to file written statement---Right to file written statement closed by the Trial Court---Propriety---Order VIII, R. 10, C.P.C. prescribed a timeframe for filing a written statement which could not ordinarily exceed 30 days---Perusal of the record of the case indicated that the defendants were granted at least four opportunities spread over a period of about five months to file the written statement---Despite the time given and indulgence shown by the Trial Court, the defendants failed to file their written statement without any lawful justification---Where law prescribed a time for doing a certain act, the same should ordinarily be adhered to unless cogent reasons and lawful justification was presented before the court justifying an extension of such time---No such justification was pleaded before the trial, appellate or revisional Court by the defendants---Even before the Supreme Court, other than submitting that one more opportunity may be granted against payment of costs, the counsel for defendants did not furnish any reason or justification for the defendants' failure to file their written statement despite repeated adjournments granted by the Trial Court---Trial Court, in circumstances, was quite justified and within its powers to take action against the defendants under O. VIII, R. 10, C.P.C. by closing their right to file written statement---Petition for leave to appeal was dismissed accordingly.

Sikandar Javed, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2017 S C M R 1843

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Sardar Tariq Masood, JJ

FAMIA IJAZ and 2 others---Petitioners

Versus

IJAZ HAMEED and 2 others---Respondents

Civil Appeal No. 141-L of 2017, decided on 9th August, 2017.

(On appeal from the order dated 25.3.2015 of the Lahore High Court, Lahore passed in W.P. No. 28680 of 2012)

Civil Procedure Code (V of 1908)---

----O. IX, R.13---Family Courts Act (XXXV of 1964), S. 17-A---Constitution of Pakistan, Art. 199---Constitutional petition before High Court---Maintainability---Ex parte decree and judgment against father in respect of maintenance allowance for children---Application filed by father for setting aside ex parte judgment and decree---During pendency of said application, the father filed a constitutional petition in the High Court seeking to stay and set aside the execution proceedings pursuant to the ex parte judgment and decree---High Court could not exercise its constitutional jurisdiction, more particularly, when no order at that point of time had been passed on the application seeking setting aside the ex parte judgment and decree---Constitutional petition filed by the father before High Court was held to be incompetent.

Alamgir, Advocate Supreme Court for Petitioners.

Ch. Muhammad Siddique, Advocate Supreme Court and Ms. Tasneem Ameen, Advocate-on-Record for Respondent No.1.

2017 S C M R 1845

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD TUFAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 253-L of 2009, decided on 25th May, 2017.

(Against the judgment dated 20.05.2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 945 and C.S.R. 19-T of 2008)

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, common intention, act of terrorism---Reappraisal of evidence---Benefit of doubt---Accused was sentenced to death on the charge of firing at and killing a police official---Witnesses who furnished the ocular account stated that the accused and co-accused persons made indiscriminate firing at the police and that the accused was also driving the motorcycle at the time of occurrence---None of said witnesses stated before the Trial Court that it was the shot fired by the accused which hit the deceased police-official and proved fatal---According to the own showing of the prosecution, the accused was also driving a motorcycle at the time of occurrence, therefore, there was little chance that his fireshot would have hit the deceased---Positive report of Forensic Science Laboratory would at the most suggest that the accused also resorted to firing but it would not prove that the shot fired by him had hit the deceased and proved fatal---While extending him benefit of doubt, accused was acquitted of the charges under Ss.302(b) & 34, P.P.C. as well as S. 7(a), Anti-Terrorism Act, 1997---Appeal was partly allowed accordingly.

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

----S. 353---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Arms Ordinance (XX of 1965), S. 13---Assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possession of weapon and ammunition without any valid licence---Reappraisal of evidence---Accused and co-accused persons were alleged to have fired at a police party which resulted in the death of a police official---Trial Court convicted the accused under S. 7(h) of Anti-Terrorism Act, 1997, S. 353, P.P.C and S. 13 of Arms Ordinance, 1965 and sentenced him to ten years imprisonment, which sentence was upheld by the High Court---Held, that sufficient evidence was available against the accused as he was apprehended from the spot, and recovery of motorcycle as well as rifle used during the occurrence was effected from him---Even otherwise material witnesses of prosecution were police officials who had no malice against the accused for his false implication in the case---Appeal filed by accused to the extent of charges under S. 353, P.P.C., S. 7(h), Anti-Terrorism Act, 1997 and S. 13 of the Arms Ordinance, 1965 was dismissed.

Ch. Shahid Tabbassam, Advocate Supreme Court for Appellant.

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

2017 S C M R 1849

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Sardar Tariq Masood, JJ

GHULAM ALI SHAH and others---Petitioners

Versus

MUHAMMAD KHALID and others---Respondents

Civil Petition No. 780-L of 2013, decided on 10th August, 2017.

(On appeal from the judgment dated 14.1.2013 of the Lahore High Court, Lahore passed in Civil Revision No. 703 of 2009)

Civil Procedure Code (V of 1908)---

----O. IX, R. 6---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Non-appearance of defendant---Effect---Suit for declaration, possession and permanent injunction---Defendant failed to appear and was proceeded ex parte---Trial Court after recording evidence of plaintiff only dismissed the suit---Plaintiff contended that since the defendant did not appear to defend the suit before the Trial Court, therefore, the suit should have been decreed under O. IX, R. 6, C.P.C., and even otherwise, the plaintiff had succeeded in proving its case---Validity---Merely because the defendant did not appear to defend suit, the plaintiff's suit could not have been decreed in the facts and circumstances of the case---On the basis of the evidence or rather the lack thereof, the Trial Court concluded that the plaintiffs had failed to prove their case of being real owners of the property in dispute and thus dismissed the suit---Such finding of fact was affirmed in appeal by the first Appellate Court and the High Court through detailed reasoning had maintained the judgments of the courts below---Petition for leave to appeal was dismissed accordingly.

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

Nemo for Respondents.

2017 S C M R 1871

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD RIAZ and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 151-L of 2009 along with Jail Petition No. 84 of 2009, decided on 5th May, 2017.

(Against the judgment dated 03.11.2008 passed by Lahore High Court, Lahore in Criminal Appeal No. 1682 of 2002, Criminal Revision No. 1027 of 2002 and M.R. No. 698 of 2002)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused had been attributed firearm injury on the person of deceased which proved fatal---Ocular account furnished by complainant and injured witness was fully supported by the medical evidence---Prosecution case stood fully proved against the accused beyond any shadow of doubt---Accused had been rightly convicted under S. 302(b), P.P.C.---Petition for leave to appeal was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Accused was attributed single fire shot on the person of deceased and there was no allegation of repetition of firing---High Court, in circumstances, had rightly reduced the death sentence awarded to accused by converting the same into life imprisonment---Appeal was dismissed accordingly.

Muhammad Yar Khan Dah, Advocate Supreme Court for Appellant (in Cr. A. No. 151-L of 2009).

Mian Pervaiz Hussain, Advocate Supreme Court for Appellant (in J.P. No. 84 of 2009).

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

2017 S C M R 1874

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Sardar Tariq Masood, JJ

MUHAMMAD SARFRAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 286-L of 2017, decided on 31st July, 2017.

(On appeal against the judgment dated 14.12.2016 passed by Lahore High Court, Lahore in Crl. Appeal No. 2251 of 2015)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Accused was caught red-handed and charas (narcotic) weighing 5 kilograms contained in 5 packets was recovered from his exclusive possession---Some quantity of narcotics was extracted from each packet and five separate sealed parcels for chemical analysis were prepared and forwarded to the office of the Forensic Science Agency---Report of the Chemical Examiner was positive---Recovery witnesses remained consistent on each and every material point and no material contradiction in their statements was pointed out---Said witnesses had no animosity or ill will towards the accused, hence they had no motive to falsely implicate the accused---Statements of said witnesses were further corroborated by the report of the Chemical Examiner---Although there was a minor delay in sending the sample parcels to the Forensic Science Agency but the rules to that effect were directory and not mandatory---Nothing on record established that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, remained intact---Both the courts below had correctly observed that the prosecution had proved its case beyond any shadow of doubt against the accused---Petition for leave to appeal was dismissed accordingly.

Muhammad Anwar Khan, Advocate Supreme Court for Petitioner.

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

2017 S C M R 1877

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

AZHAR NAWAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 85-L and 86-L of 2009, decided on 3rd May, 2017.

(Against the judgment dated 4.11.2008 passed by Lahore High Court, Bahawalpur Bench in Criminal Appeals Nos. 354 and 331-J of 2003)

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

----Ss. 302(b), 324, 34 & 406---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, lurking house-trespass or house-breaking by night punishable for qatl or hurt caused by one of them---Reappraisal of evidence---Occurrence took place in the odd hours of night, and was reported to the police just one hour after its happening despite the fact that distance between the police station and the place of occurrence was seven kilometers---Ocular account was furnished by three witnesses which included the two injured witnesses---Medical evidence was in line with the ocular account---Prosecution case against both the accused persons was further corroborated by the recovery of blood stained knives at the instance of both of them coupled with positive reports of Chemical Examiner and Serologist---Prosecution had been successful in proving its case against both the accused persons beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in--- Consistency in sentences awarded to accused and co-accused--- Role attributed to accused was at par with that of the co-accused, however the accused was sentenced to death, whereas the co-accused was sentenced to imprisonment for life --- Sentence of death awarded to accused under S. 302(b), P.P.C. in such circumstances appeared to be harsh---To maintain consistency (in sentences), the Supreme Court altered the sentence of death awarded to accused to imprisonment for life---Appeal was partly allowed accordingly.

Syed Zahid Hussain Bukhari, Advocate Supreme Court for Appellant (in Criminal Appeal No. 85-L of 2009).

Nemo for Appellants (in Criminal Appeal No. 86-L of 2009).

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

2017 S C M R 1880

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

MUHAMMAD SADIQ---Appellant

Versus

INSPECTOR-GENERAL OF POLICE PUNJAB LAHORE and others---Respondents

Civil Appeal No. 459-L of 2010, decided on 28th August, 2017.

(On appeal from the judgment dated 08.12.2009 of the Punjab Service Tribunal, Lahore passed in S.A. No. 956 of 2008)

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

----Ss. 5(1)(b)(ii), 7(f), proviso (ii)--- Dispensation of inquiry---Propriety---Absence without leave for seven days---Major penalty---Dismissal from service---Appellant-police official took up the plea that he was fatigued with over work and upon refusal of his request for leave by the SHO he absented himself from duty on account of his physical condition, and that he had tendered a medical certificate issued by the Government Hospital---Validity---No medical certificate was available on the Court's record---Service Tribunal took into account the 27 prior instances during appellant's service when he was punished with minor penalties for absenting himself from duty without approval---Provision of S. 5(1)(b)(ii) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, required reasons to be recorded for initiating proceedings against a government servant or for documentary evidence to be available with the department to justify such action---Neither documentary evidence nor reasons were available in the show-cause-notice or in the impugned dismissal order passed against the appellant---Appellant had been subjected to a major penalty terminating his service prematurely---Spirit of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was that such terminal punitive action against a civil servant should be taken after an inquiry had been conducted---In the present case, whether the appellant had a satisfactory explanation for his absence for the period mentioned in the show-cause-notice had not been attended to by the department---Opportunity to record evidence ought to have been granted to the appellant---Likewise, the availability of documentary evidence, if any, with the department that justified dispensation of an inquiry ought to have been disclosed/confronted to the appellant---In the absence thereof, the impugned punishment had been imposed upon the appellant without complying with the provisions of the law---Impugned dismissal order of appellant was set aside and he was reinstated in service--- Supreme Court directed that the department shall conduct an inquiry into the allegation of wilful absence from duty against the appellant, and in case the appellant succeeded in making out his defence, the matter of giving him back benefits shall also be decided by the competent authority---Appeal was allowed accordingly.

Pervaiz Inayat Malik, Advocate Supreme Court for Appellant along with Appellant.

Naveed Saeed Khan, Additional P.-G. for Respondents.

2017 S C M R 1882

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

FALAK SHER---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No. 1381-L of 2012, decided on 25th August, 2017.

(Against judgment dated 27.04.2012 of Lahore High Court, Lahore, passed in Civil Revision No. 1383 of 2012)

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

----S. 54---Immoveable property---Agreement to sell---Title in immovable property could not be claimed merely on the basis of an agreement.

M. Farooq Bedaar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2017 S C M R 1884

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MAZHAR ABBAS alias BADDI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 80-L of 2009, decided on 15th May, 2017.

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 17.12.2009 passed in Criminal Appeal No. 968 of 2001 and M.R. No. 112 of 2004)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Fatal dagger blow in the chest of deceased was attributed to the accused---Ocular account furnished by complainant and another witness was fully supported by the medical evidence---Accused, during the course of investigation, led to the recovery of a dagger---Reports of Chemical Examiner and Serologist vis-a-vis the said dagger were positive---Prosecution successfully brought home guilt against the accused to the hilt---Accused had been rightly convicted under S. 302(b), P.P.C.---Appeal was partly dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Single dagger blow was attributed to the accused and there was no allegation of repetition of blows---Courts below did not believe the alleged motive behind the occurrence---Sentence of death awarded to the accused was altered to imprisonment for life in circumstances---Appeal was partly allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Motive not proved---Once the prosecution alleged a motive and failed to prove the same during the trial, the same could be taken as a mitigating circumstance while deciding the quantum of sentence of a convict.

Altaf Hussain, Advocate Supreme Court for Appellant.

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

2017 S C M R 1932

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 623-L of 2017, decided on 10th May, 2017.

(Against the order of the Lahore High Court, Lahore dated 11.04.2017 passed in Criminal Misc. No.498-B of 2017)

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 was not named in the FIR---About three months after the incident, daughter of one of deceased implicated the accused in her statement recorded by police under S. 161, Cr.P.C. alleging that the accused abetted the murder of her father---Daughter of deceased based her statement implicating the accused on the information imparted to her by two witnesses, however both said witnesses had not assigned any reason for their belated disclosure except that they were frightened---As per said two witnesses, the conspiracy was hatched by the accused at his own dera, whereas one of the co-accused made a confessional statement that the conspiracy was hatched at his (i.e. the co-accused's) dera---No overt act (as far as actual occurrence was concerned) was attributed to the accused by the witnesses or the co-accused---Case of accused was one of further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused was admitted to bail accordingly.

Muhammad Ahsan Bhoon, Advocate Supreme Court for Petitioner.

Rai Bashir Ahmed, Advocate Supreme Court for the Complainant.

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

2017 S C M R 1934

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

NAZIR AHMED Deceased through LRs---Petitioner

Versus

KARIM BAKHSH (Late) through LRs---Respondent

Civil Petition No. 1246-L of 2012, decided on 24th August, 2017.

(Against judgment dated 19.04.2012 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No. 514-D of 2000)

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

----Art. 100--- Document more than 30 years old---Presumption of truth---Pre-requisite---Condition precedent for grant of benefit of presumption of truth to a document which was more than 30 years old was that there was no doubt about the valid execution of the same---Where a party to the case alleged such a document to be forged, then onus was on the other party relying on the same to prove execution of the document in accordance with law, as the presumption under Art. 100 of Qanun-e-Shahadat, 1984 would not apply.

M. M. A. R. Anjum, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2017 S C M R 1936

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

MAZHAR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Crl. Petition No. 901-L of 2017, decided on 23rd August, 2017.

(Against the order of the Lahore High Court, Lahore dated 21.03.2017 passed in Crl. Misc. No. 2974-BC of 2017)

Criminal Procedure Code (V of 1898)---

----S. 498--- Constitution of Pakistan, Art. 185(3)--- Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Unlawful emigration, receiving money, etc. for providing foreign employment---Pre-arrest bail, confirmation of---Accused was allowed pre-arrest bail by the High Court---When the accused failed to appear during trial, the Trial Court forfeited his bail bond and ordered to carry out proceedings against the surety and non-bailable warrants of arrest were also ordered to be issued against the accused---Subsequently, the complainant of the case filed a petition for cancellation of bail of the accused before the High Court on the ground of his abscondence from Trial Court which culminated in the impugned order whereby pre-arrest bail granted to the accused was recalled---Legality---Perusal of order of Trial Court whereby bail bond of the accused was forfeited, showed that the Trial Court had jumped to the conclusion qua the abscondence of the accused without observing required procedure inasmuch as there was no report as to why the warrants of arrest against the accused were not executed---In such circumstances, the impugned order of the High Court whereby bail before arrest of the accused was recalled was not justifiable in law---Consequently, the impugned order of the High Court was set aside and the order whereby pre-arrest bail of the accused was confirmed by the High Court was restored.

Ms. Shaista Kaiser, Advocate Supreme Court along with the Petitioner in person.

Arshad Mehmood, Advocate Supreme Court for Respondent No.2.

Zikerya Sheikh, Deputy Attorney-General and Ghazanfar SI/FIA for the State.

2017 S C M R 1939

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL alias BALA BANDRI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 994-L of 2017, decided on 6th September, 2017.

(Against the order dated 22.03.2017 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 1365-B of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302(b), 354, 147, 148 & 109---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, rioting, rioting armed with deadly weapons, abetment---Bail, grant of---Further inquiry---According to the prosecution the accused was armed with a hockey stick and caused a blow with that stick near the nose of deceased---FIR itself showed that deceased was not the subject of the initial assault and it was the deceased himself who had interfered in a brawl already taking place between the accused and others on the one side and their adversaries on the other---Injury allegedly caused by the accused to the deceased had not proved fatal---Accused was not directly connected with the motive set up in the FIR---Hockey stick allegedly recovered from the custody of accused during the investigation was not stained with blood---Incident in issue prima facie appeared to be a result of a sudden occurrence developing at the spur of the moment and in the initial report under S. 173, Cr.P.C. the allegation levelled against the accused was in respect of an offence under S. 322, P.P.C. and not under S.302, P.P.C. but at some subsequent stage a challan was submitted for an offence under S. 302(b), P.P.C.---Accused had been arrested in connection with the present case more than a year ago and during the interregnum the investigation of the case had already been finalized and a challan has been submitted and, thus, physical custody of the accused was not required for the purposes of investigation---Case against the accused called for further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Mrs. Bushra Qamar, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Complainant in person.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and M. Akhtar, S.-I. for the State.

2017 S C M R 1941

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

IJAZ AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 49-L of 2009, decided on 17th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 07.03.2007 passed in Crl. A. No. 836 of 2002 and M.R. No. 443 of 2002 and Crl. Rev. No. 928 of 2002)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place in daylight---Matter was reported to the police on the same day through the written statement of complainant at the hospital, on the basis whereof formal FIR was registered---Postmortem on the dead body of deceased was conducted on the same day---Promptness in reporting the matter to police and the timely postmortem on the dead body of deceased ruled out any chance of pre-consultation or deliberation---Ocular account was furnished by two witnesses who remained consistent on all the material aspects of the case, and their testimony was further supported by the medical evidence adduced by the doctor who observed 17 incised/stab wounds and three abrasions on the dead body of the deceased---Prosecution had been successful in proving its case against the accused beyond any shadow of doubt and he had rightly been convicted by the Courts below under S. 302(b), P.P.C.---Appeal to the extent of conviction of accused was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---High Court had not believed the motive part of the prosecution story and also discredited the evidence of recovery---Reasons assigned by the High Court for discarding the evidence of motive and recovery were valid and convincing---While maintaining the conviction of the accused under S. 302(b), P.P.C., his sentence of death was converted into imprisonment for life.

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Appellant.

Shahzib Masud, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for the Complainant.

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

2017 S C M R 1944

[Supreme Court of Pakistan]

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

Dr. MUHAMMAD TARIQ---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 692-L of 2017, decided on 7th September, 2017.

(Against the order dated 21.03.2017 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 2581-B of 2017)

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for cancellation of bail, dismissal of---Case had been instituted by the complainant after about three years, two months and fourteen days of the alleged transaction between the parties leading to dishonouring of the relevant cheque---Such delay had never been properly explained by the complainant---Alleged offence under S. 489-F, P.P.C. did not attract the prohibitory clause contained in subsection (1) of S. 497, Cr.P.C.---Accused had been admitted to post-arrest bail by the High Court after he had already spent about three months in jail and his continued custody in jail was not likely to serve any beneficial purpose---Suit for recovery of the relevant amount filed by the complainant against the accused was already pending before a civil court---Investigation of the case had already been finalized and a challan had been submitted---No allegation had been levelled against the accused regarding any misuse or abuse of the concession of bail---Petition seeking cancellation of bail awarded to accused was dismissed accordingly.

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Bail, cancellation of---Scope---Where investigation of the case had already been finalized and a challan had been submitted against the accused, the Supreme Court was generally slow in canceling bail at such stage.

Nemo for Petitioner.

Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondent No.2.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab and Sana Ullah, S.-I. for the State.

2017 S C M R 1946

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

TAHIR JAVED @ TARA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 86 of 2010, decided on 18th May, 2017.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan dated 17.06.2009 passed in Crl. A. No. 686 of 2003, Crl. A. No. 298 of 2004 and M.R. No. 811 of 2003)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appeal dismissed by High Court by way of a short order---Detailed judgment not recorded by the High Court---Effect---Notwithstanding the fact that the High Court had answered the murder reference in the negative and while maintaining the convictions of the accused and co-accused, reduced the sentence of accused from death to imprisonment for life, it would not be proper for the Supreme Court to scrutinize the evidence on record in absence of detailed reasons which would have weighed with the High Court while reaching its decision---Supreme Court set aside the short order passed by the High Court and remanded the case to the High Court to decide the appeals filed by the accused and co-accused and the murder reference sent by the Trial Court afresh after hearing the parties, in accordance with law within four months---Appeal was allowed accordingly.

Nemo for Appellant.

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

2017 S C M R 1976

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

AMANAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 105-L of 2009, decided on 18th May, 2017.

(On appeal from the judgment of Lahore High Court, Lahore dated 14.11.2008 passed in Criminal Appeals Nos. 182 and 283 and M.R. No. 188 of 2003)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Ocular account was furnished by two eye-witnesses who stated that occurrence had taken place inside a mosque---Place of occurrence was not disputed by the defence, therefore, if deceased was present at the place of occurrence, presence of both the witnesses of ocular account with the deceased at the time of occurrence could not be doubted---Both said witnesses attributed two churri blows to the accused on the person of deceased---Ocular account furnished by the eye-witnesses was substantially supported by the medical evidence as three incised wounds were observed during the post mortem examination conducted on the body of deceased---Accused absconded after the occurrence and was arrested after more than 1-1/4 years---Abscondance of the accused was proved by producing warrant of arrest and proclamation with report---Prosecution witnesses were not cross-examined qua abscondance of the accused, therefore, the prosecution case was further corroborated by the abscondance of the accused---Prosecution successfully proved its case against the accused---Appeal was disposed of accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved---Belated recovery of weapon of offence---Motive was not believed by the Trial Court whereas no findings qua motive were recorded by the appellate court---Alleged recovery of knife from accused as well as the positive reports of Chemical Examiner and Serologist were inconsequential because the said recovery was effected after more than one year and three months of the occurrence---Taking said mitigating circumstances into account, sentence of death awarded to accused was altered to imprisonment for life by the Supreme Court---Appeal was partly allowed accordingly.

Abdul Hameed Rana, Advocate Supreme Court for Appellant.

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

M. Saeed Ansari, Advocate Supreme Court for the Complainant.

2017 S C M R 1979

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Qazi Faez Isa, JJ

CHAIRMAN NADRA, ISLAMABAD, through Chairman, Islamabad and another---Appellants

Versus

MUHAMMAD ALI SHAH and others---Respondents

Civil Appeals Nos. 1132 and 1133 of 2014, decided on 12th September, 2017.

(On appeal from the judgment dated 06.03.2014 of the Peshawar High Court, Peshawar passed in W.Ps. Nos. 3210 and 3437 of 2012)

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 35---National Database and Registration Authority Employees (Service) Regulations, 2002---Contractual employees of National Database and Registration Authority ("the Authority")---Regularization in service---Competent authority---Neither the Interior Minister nor the Ministry of Interior had the legal authority to order regularization of contractual employees of the Authority---Authority was a statutory body and was governed by the terms of the National Database and Registration Authority Ordinance, 2000, which did not permit either the Interior Minister or the Ministry of Interior to issue an order or notification of regularization of contractual employees.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 4 & 35---National Database and Registration Authority Employees (Service) Regulations, 2002---Contractual employees of National Database and Registration Authority ("the Authority")---Regularization in service---Meeting of the 'Authority' in terms of S. 4 of the National Database and Registration Authority Ordinance---Scope---Contractual employees contended that the terms for regularization in service offered to them were not in accordance with the decision which had been taken in the meeting of the Authority held under the Chairmanship of the Interior Minister, and they were not offered what was decided to be granted to them as per the decision arrived at in the said meeting---Validity---Minutes of the meeting did not state that it was a meeting of the Authority, let alone a meeting as envisaged under S. 4 of the National Database and Registration Authority Ordinance, 2000---In particular the minutes of the meeting did not state that it was a meeting of the Authority; did not record the members present at such meeting, nor whether the requisite quorum for a meeting of the Authority was present; did not mention that the necessary notices for holding a meeting of the Authority were issued, and did not record the "determination or decision of the Chairman and each member separately"---Appeal was allowed accordingly.

(c) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 35, 37 & 45---National Database and Registration Authority Employees (Service) Regulations, 2002, Regln. 8---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---Contractual employees of National Database and Registration Authority ("the Authority")---Regularization in service---Terms and conditions, alteration of---High Court could not renegotiate, alter and amend the terms of regularization that were offered by the Authority to its contractual employees, for the simple reason that the High Court did not have jurisdiction to do so.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Contractual employee of a statutory organization---Such an employee cannot invoke constitutional jurisdiction of the High Court under Art.199 of the Constitution.

Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132 and P.T.C.L. v. Maqsood Ahmed Bhatti 2016 SCMR 1362 ref.

Tanvir-ul-Islam, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Usman Yousaf Mobeen, Chairman, NADRA for Appellants (in both cases).

Shoaib Shaheen, Advocate Supreme Court and Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in both cases).

2017 S C M R 1990

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Manzoor Ahmad Malik and Ijaz ul Ahsan, JJ

WAHEED and another---Applicant/Petitioners

Versus

The STATE and others---Respondents

Crl. M.A. No. 312-L of 2017 in Jail Petition No. 477 of 2015 and Crl. Petition No. 1188-L of 2015.

(Against the judgment of the Lahore High Court, Lahore dated 16.09.2015 passed in Crl. A. No. 335 of 2010 and Murder Reference No. 173 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Compromise with heirs of deceased, genuineness of---Pending adjudication of criminal petition for leave to appeal and jail petition convict/petitioner moved application seeking permission to effect compromise with the legal heirs of the deceased---Supreme Court asked for the report of concerned Sessions Judge---Sessions Judge submitted his report before the Supreme Court, wherein it was stated that the compromise was genuine; that all the legal heirs of deceased, namely his father, brother and sister were major and recorded their statements to the effect that they had entered into compromise with accused and had forgiven him in the name of Almighty Allah, and that they had waived their right of qisas and diyat and had no objection, if accused was acquitted for the murder of deceased---Prosecution had no objection to the acceptance of the compromise as well---Report of Sessions Judge revealed that the compromise effected between the parties was genuine, voluntary and without any coercion or duress---Accused was acquitted of the charge of murder in view of the compromise between the parties.

Tallat Farooq Sheikh, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Applicant/Petitioners (in Crl. M.A. 312 of 2017).

Mian Ghulam Hussain, Advocate-on-Record for Petitioners (in Crl. P. 1188-L of 2015).

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

2017 S C M R 1993

[Supreme Court of Pakistan]

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

The STATE---Petitioner

Versus

MUHAMMAD SARWAR and others---Respondents

Criminal Petitions Nos. 711-L and 746-L to 752-L of 2017, decided on 8th September, 2017.

(Against the order dated 06.03.2017 passed by the Lahore High Court, Lahore in Criminal Miscellaneous Nos. 1133-B, 1631-B, 1571-B, 1267-B, 2129-B, 1848-B, 1286-B, 2962-B, 1539-B, 1876-B, 1734-B, 1662-B, 1934-B, 2362-B, 2260-B, 1962-B, 1360-B, 2690-B, 1377-B and 1247-B of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S. 2(d)(ii)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 4--- Constitution of Pakistan, Art. 185(3)---Possession of narcotic---Petition for cancellation of bail, dismissal of---Accused persons had been admitted to post-arrest bail by the High Court mainly because it was yet to be determined as to whether the offence allegedly committed by them attracted the provisions of S. 2(d)(ii) of the Control of Narcotic Substances Act, 1997 or those of the Prohibition (Enforcement of Hadd) Order, 1979---Supreme Court declined to attend to such aspect of the case at present stage and held, that no allegation had been levelled against the accused persons regarding misuse or abuse of the concession of bail---Investigation of the case had already been finalized and physical custody of the accused persons was no longer required at present stage for the purposes of investigation---No occasion had been found to interference in the bail granting order of the High Court---Petition for leave to appeal was dismissed accordingly.

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

Private Respondents in person (in Cr. P. 711-L of 2017).

Nemo for Respondents (in all other cases).

2017 S C M R 1999

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Sardar Tariq Masood, JJ

MUHAMMAD ASHRAF JAVEED and another---Appellants

Versus

MUHAMMAD UMAR and others---Respondents

Criminal Appeals Nos. 37-L and 38-L of 2012, decided on 31st August, 2017.

(On appeal from the judgment dated 17.5.2010 passed by the Lahore High Court, Lahore in Crl. Appeal No. 321-J of 2004)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Ocular account furnished by the witnesses suffered from legal and factual infirmities and did not appeal to a prudent mind---Question was as to how the prosecution witnesses reached the spot from different directions and how they assumed that probably the deceased was present there---No witness had been produced to show that the prosecution witnesses were in search of the deceased on the fateful night---Deceased suffered a solitary major injury, but his father decided to get him cured through a private medical practitioner whose name was brought on record without mentioning his professional qualification---Autopsy report and the operation notes showed that deceased went into a semi-coma condition, therefore, the question was why he was not brought to the hospital before going into a coma---Hospital was closely situated to the police station but neither the complainant nor the prosecution witnesses or the treating doctor and hospital staff informed the police about the arrival of the medico-legal case/deceased to cover up the long delay in reporting the matter to the police---Numerous excuses were advanced by the complainant and other prosecution witnesses to the effect that accused restrained them from reporting the matter to the police but no independent witness was produced to corroborate the same---Investigating officer did not take into possession the bulb allegedly lit at the crime spot and no reason had been shown for such omission which was the only source of identification---Medico-legal Report and autopsy report of the deceased were inconclusive and even the medical officer who conducted the autopsy conceded that the fatal injury could have been caused due to a fall from height which supported the plea of the defence that services of the deceased were hired for fixing lights on the electric poles and he fell down therefrom and sustained injuries---Recovery of the iron rod would show that it was not blood-stained and it was also not sent to the Chemical Examiner---Motive for the occurrence had been disbelieved by the High Court---Evidence led by the prosecution was entirely undependable and no independent, strong and corroboratory evidence of unimpeachable nature was available---Accused was acquitted from all the charges leveled against him.

Rai Bashir Ahmed, Advocate Supreme Court for Appellants (in Crl. A. 37-L of 2012).

Sher Afghan Asad, Advocate Supreme Court for Appellants (in Crl. A. 38-L of 2012).

Ch. Muhammad Waheed, APG., Punjab for the State.

2017 S C M R 2002

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ZAHIR YOUSAF and another---Appellant/Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No. 286-L of 2009 and Criminal Petition No. 1217-L of 2009, decided on 10th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 05.06.2009 passed in Crl. A. No. 428-J of 2003 and Murder Reference No. 232 of 2004)

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Admittedly, the occurrence took place in a graveyard at 07.30 p.m. during the month when the sun sets around 06.00 p.m., therefore, it was dark and no source of light has been mentioned in the FIR or scaled site-plan--- Neither the complainant nor the witnesses of ocular account stated that they had witnessed the occurrence in the moonlight---Inquest report revealed that eyes of deceased were open, which made the presence of the witnesses of ocular account at the time of occurrence doubtful, because had they been present there they would have closed eyes of deceased who was their close relative---Scaled site-plan showed that distance between the place where corpse of deceased was lying and where the accused was present was sixteen feet---Doctor who conducted autopsy upon the dead body of deceased stated in his examination-in-chief that the firearm injury had burnt inverted margins---Doctor, in his cross-examination, admitted that blackening occurred on an injury if fired from six feet and burning if fired from few inches, therefore, the medical evidence did not support the ocular account in the present case---Vague motive was set up in the FIR which was to the effect that about two years prior to the occurrence, there had been a quarrel between the complainant side and the accused's side---Even if the motive set up by the complainant was taken as gospel truth there was no explanation on the record as to why only deceased from the complainant's side was targeted by the accused when three other persons were also available at the place of occurrence---Recovery of a pistol allegedly effected at the instance of the accused was inconsequential as no crime empty was sent to the Forensic Science Laboratory---Report of Forensic Science Laboratory was simply to the effect that the weapon was in working order---Prosecution case against the accused was doubtful in nature---Accused was acquitted of the charge by extending the benefit of doubt to him---Appeal was allowed accordingly.

Muhammad Irfan Malik, Advocate Supreme Court for Appellant (in Crl. A. No. 286).

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner (in Crl. Petition No. 1217).

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

2017 S C M R 2005

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SHAHBAZ KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others---Respondents

Civil Petition No. 1559-L of 2012, decided on 8th September, 2017.

(On appeal against the judgment dated 16.04.2012 of the Lahore High Court, Lahore passed in W.P. No. 10810 of 2012)

Civil Procedure Code (V of 1908)---

----O. II, R. 2 & O. XXIII, R. 1(3)---Relinquishment of part of claim---Withdrawal of suit without permission to file a fresh suit---Effect---Petitioner had claimed that suit land had been orally gifted to him by his father "C" vide impugned mutation---Co-sharers and legal heirs of "C" challenged said mutation before the Board of Revenue, which declared the gift mutation to be invalid---Order of Board of Revenue was upheld upto the Supreme Court ---Subsequently petitioner filed a suit ("first suit") for permanent injunction with the prayer that the co-sharers of the property may not alienate the land without proper partition despite the fact that the order of Board of Revenue was in the field, and the same was not challenged---Said suit was subsequently withdrawn, whereafter the petitioner filed another suit ("second suit") for declaration, wherein the order of Board of Revenue was challenged---Co-sharers and legal heirs of "C" filed an application for rejection of plaint which was accepted by the Revisional Court and High Court and the suit was dismissed on two grounds; firstly, that the second suit was hit by the provisions of O. II, R. 2, C.P.C. as the first suit was withdrawn without permission of the Court to file a fresh suit, and secondly, that it did not disclose any cause of action---Legality---Petitioner on the basis of oral gift and mutation had no right in the property, and as such the order passed by the Board of Revenue was clear and unambiguous---Said order was affirmed by the High Court, therefore, the petitioner could not have challenged the same order again through a civil suit---Further the first suit for permanent injunction was withdrawn without seeking permission to file a fresh one, thus, both the provisions, i.e., O. II, R. 2, C.P.C. and O. XXIII, R. 1(3), C.P.C. were fully attracted to the case of the petitioner as rightly held by the two Courts below---Petition for leave to appeal was dismissed accordingly.

Waqar A. Sheikh, Advocate Supreme Court for Petitioner.

Hafeez-ur-Rehman Chaudhry, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondents.

2017 S C M R 2007

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ZAHEER SADIQ---Appellant

Versus

MUHAMMAD IJAZ and others---Respondents

Criminal Appeal No. 313-L of 2009, decided on 11th May, 2017.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench dated 12.11.2008 passed in Criminal Appeal No. 409 of 2003 and M. R. No. 01 of 2004)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---One of the witnesses of the ocular account did not support the prosecution story and was declared hostile---Other two ocular witnesses were residents of a different locality and as such both of them were chance witnesses, and their explanation for being present at the place of occurrence was discarded---Conduct of both said witnesses was also highly improbable as they did not try to shift the deceased or the injured to the hospital prior to the arrival of the police---Material contradictions existed in statements of said witnesses as one of them stated that the investigating officer remained at the place of occurrence for 10 to 15 minutes and thereafter he left, but to the contrary the investigating officer stated during his cross-examination that he remained at the place of occurrence for 2 or 2-1/2 hours---High Court had rightly acquitted the accused in the light of such contradictory and self-destructive primary evidence---Appeal against acquittal was dismissed accordingly.

(b) Appeal against acquittal---

----Double presumption of innocence---Scope---Every accused was innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubled---Strong and cogent reasons were required to dislodge such presumption.

Raja Abdul Rehman, Advocate Supreme Court for Appellant.

Nemo for Respondent No.1.

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

2017 S C M R 2010

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY---Appellant

Versus

Mrs. ITRAT SAJJAD KHAN and others---Respondents

Civil Appeal No. 106-K of 2016, decided on 22nd September, 2017.

(Against the judgment dated 10.12.2014 passed by the High Court of Sindh in Const. P. D-3796 of 2012)

(a) Pakistan Defence Officers Housing Authority Order (President's Order 7 of 1980)---

----Art. 4---Constitution of Pakistan, Art. 199---"Person" within the meaning of Art. 199 of the Constitution---Scope---Pakistan Defence Officers Housing Society Authority ("Authority")---Statutory body---'Authority' was a statutory body established under the Pakistan Defence Officers Housing Authority Order, 1980, performing some of the functions of the Federation/State and, therefore, a "person" within the meaning of Art. 199(1)(a)(ii) read with Art. 199(5) of the Constitution---Where actions or orders of such statutory bodies were violative of the statute creating those bodies or rules/regulations framed under the statute, the same could be interfered with by the High Court under Art. 199 of the Constitution.

Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Question as to whether the service rules of an 'authority' were statutory so as to challenge their violation in constitutional jurisdiction of the High Court---Test of whether rules/regulations were statutory or otherwise was not solely whether their framing required approval of the Federal Government or not, rather it was the nature and area of efficacy which determined their status---Rules dealing with instructions for internal control or management were treated as non-statutory while those, whose area of efficacy was broader and/or complementary to the parent statute in the matter of crucial importance, were statutory.

Shafique Ahmed Khan v. NESCOM through Chairman, Islamabad PLD 2016 SC 377 and Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Service Rule for the Employees of the Pakistan Defence Officers Housing Authority Karachi, 2008 ("Rules")---Said "Rules" were non-statutory in nature, therefore, their enforcement through constitutional jurisdiction of the High Court was not in consonance with the law.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition filed by an employee of a statutory corporation having non-statutory rules of service seeking enforcement of the terms and conditions of his service rules---Maintainability---Where a service grievance was agitated before the High Court in terms of Art. 199 of the Constitution, by a person/employee who was not governed by statutory rules of service, such petition shall not be maintainable.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 ref.

(e) Service Rules for the Employees of the Pakistan Defence Officers Housing Authority Karachi, 2008---

----R. 8(b)(1)---Employee of Pakistan Defence Officers Housing Authority---'Dispensation from service' without assigning any reason or providing an opportunity of hearing--- Constitutionality---Natural justice, principles of--- Principles of "Public policy"--- Scope---Rule 8(b)(1) of the Service Rules for the Employees of the Pakistan Defence Officers Housing Authority Karachi, 2008 ("the Rules") which authorized the Administrator to dispense with the services of an employee by giving him one month's notice or one month's pay in lieu thereof without assigning any reason or providing an opportunity of hearing was violative of the principles of natural justice, which always had been treated as violation of law---Said rule further appeared to be against the principles of public policy which required the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies---Rule 8(b)(1) of the Service Rules for the Employees of the Pakistan Defence Officers Housing Authority, Karachi, 2008, was ultra vires the Constitution and the law.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 ref.

Nazar Hussain Dhoon, Advocate Supreme Court for Appellant.

Respondent No. 1 in person.

Asif Mansoor Khan, DAG for Respondents Nos. 2 - 4.

2017 S C M R 2022

[Supreme Court of Pakistan]

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

HAMOOD MEHMOOD---Petitioner

Versus

Mst. SHABANA ISHAQUE and others---Respondents

Civil Petition No. 477-K of 2017, decided on 25th August, 2017.

(On appeal against the judgment dated 23.6.2017 passed by the High Court of Sindh, Karachi, in I.C.A. No. 301 of 2017)

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Requirements---Deposit of balance amount---Where a party sought enforcement of an agreement under the Specific Relief Act, 1877, it was mandatory for such party that on first appearance before the Court or on the date of institution of the suit, it shall apply to the court for permission to deposit the balance amount---Any contumacious/ omission in such regard would entail in dismissal of the suit or decretal of the suit, if it was filed by the other side.

Riaz Hussain Azam, Advocate Supreme Court for Petitioner.

Respondent No.1 in person.

2017 S C M R 2024

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

FAYYAZ alias FIAZI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 54-L of 2009, decided on 9th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 07.04.2008 passed in Crl. A. No. 295-J of 2002 and M.R. No.668 of 2002)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Case of a single accused, who had been nominated with the specific allegation of causing firearm injury to the deceased---Occurrence took place in a grocery shop, and ocular account was furnished by brother of the deceased and owner of the shop---Ocular account was fully supported by medical evidence furnished by the doctor, who conducted autopsy on the dead body of deceased---Prosecution case stood proved against the accused beyond any shadow of doubt and his conviction under S.302(b), P.P.C. recorded by the Trial Court and maintained by the High Court was fully justified---Appeal was dismissed to the extent of conviction of accused.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Only a single fire-shot was attributed to the accused and there was no allegation of repetition of firing---High Court had observed that 'the improved part of the motive' could not be relied upon---While maintaining conviction of the accused under S. 302(b), P.P.C., his sentence of death was altered to imprisonment for life---Appeal was partly allowed accordingly.

M. Tahir Ch., Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Appellant.

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

2017 S C M R 2026

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

FAYYAZ AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 465 of 2015, decided on 13th September, 2017.

(On appeal from the judgment dated 23.11.2010 passed by the Lahore High Court, Lahore in Crl. A. No. 49 of 2005)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Case based on weak circumstantial evidence---Effect---Admittedly occurrence was un-witnessed---Two of the co-accused were declared innocent by the investigating agency and they were not charge-sheeted---Entire edifice of the prosecution case had been built on weak circumstantial evidence---Unnatural appearance of the accused at the house of the complainant party and asking the deceased to accompany him to collect a child, which the accused had allegedly abducted, was absolutely unbelievable as it ran counter to natural human behaviour and conduct---Furthermore the complainant party would have detained the accused with the help of others or at least informed the police about his presence---Entire story in such regard was bereft of any reason and was hard to believe being of no legal worth and reliance---Instead of accompanying the accused to the premises where the abducted child was allegedly present, the deceased went to a deserted area where his dead body was found in a crop field, considerably away from the premises in question---Such deviation was neither understandable nor believable in the absence of any believable and reliable evidence---Crime knife recovered at the instance of the accused after many days during his police custody was of no help to the prosecution because it was not shown to be stained with human blood---In three successive investigations, conducted by different investigating officers no definite opinion was formed by anyone about the guilt of the accused regarding murder of deceased and of abducting the child---Child was recovered by the police but the accused was not charged for the abduction---Time of death of deceased provided in the autopsy report completely negated and nullified the prosecution stance about the time of the departure of the deceased with the accused, which cut the roots of the prosecution case---Prosecution case was full of improbabilities, legal and factual infirmities and doubts of grave nature---Accused was acquitted of the charge of murder---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd---Conviction---Case based on circumstantial evidence---Principles---To believe or rely on circumstantial evidence, it was imperative for the prosecution to provide all links in an unbroken chain, where one end of the same touched the dead body and the other the neck of the accused---To carry conviction on a capital charge it was essential for the courts to deeply scrutinize circumstantial evidence because fabricating of such evidence was not uncommon---Minute and narrow examination of circumstantial evidence was necessary to secure the ends of justice---For a case resting on circumstantial evidence prosecution had to establish the case beyond all reasonable doubts---Beyond "reasonable doubt" did not mean any doubt but it must be accompanied by reasons, sufficient to persuade a judicial mind for placing reliance on the same---Where circumstantial evidence was short of such standard, it was better to discard the same so that an innocent person might not be sent to the gallows---To draw an inference of guilt from such evidence, the court had to apply its judicial mind with deep thought, extra care and caution and whenever there was any indications showing the design of the prosecution of manufacturing and preparation of a case, the courts had to show reluctance in beleiving it unless it was judicially satisfied about the guilt of accused person and the required chain was made out without any missing link---Court also had to keep in mind that sometimes the circumstantial evidence collected by the investigating agency seemed apparently believable however, if strict standards of scrutiny were applied there would appear many cracks and doubts therein, and in such a case courts had to discard and disbelieve the same.

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

----S. 302(b)---Qatl-i-amd---Conviction---Case based on last seen evidence---Principles.

For a conviction based on last seen evidence the following fundamental principles must be followed and the prosecution was under-legal obligation to fulfill the same:-

(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the prosecution.

(ii) The proximity of the crime scene played a vital role because if within a short distance the deceased was done to death then, ordinarily the inference would be that he did not part ways or separate from the accused and onus in such regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.

(iii) The timing when the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.

(iv) There must be some reasons and objects on account of which the deceased accompanied the accused towards a particular destination, otherwise deceased being in the company of the accused would become a question mark.

(v) There must be some motive on the part of the accused to kill the deceased otherwise the prosecution had to furnish evidence that it was during the transit that something abnormal or unpleasant happened which motivated the accused to kill the deceased.

(vi) Quick reporting of the matter without any undue delay was essential, otherwise the prosecution story would become doubtful for the reason that the last seen evidence was tailored or designed falsely to involve the accused person.

(vii) Last seen evidence must be corroborated by independent evidence, coming from an unimpeachable source because uncorroborated last seen evidence was a weak type of evidence in cases involving capital punishment.

(viii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts.

(ix) If the murder was not a pre-planned and calculated, the court had to consider whether the deceased had any contributory role in the cause of his death.

Muhammad Siddique Khan Baloch, Advocate Supreme Court for Appellant.

Mirza Muhammad Usman, DPG Punjab for the State.

2017 S C M R 2034

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

REHMAT KHAN and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1035-L of 2014 and Jail Petition No. 364 of 2014, decided on 21st February, 2017.

(On appeal against the judgment dated 23.09.2014 passed by Lahore High Court, Lahore in Crl. A. No. 299-J of 2011 and M.R. No.299 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused had been saddled with the role of firing the fatal shot at the head of deceased---Ocular account was furnished by complainant and another prosecution witness, and both of them remained steadfast and consistent on all material aspects of the case during the course of cross-examination despite a lapse of almost thirteen years after the occurrence---Prosecution case was fully supported by the medical evidence furnished by the doctor, who conducted post-mortem examination on the dead body of deceased---Trial Court had rightly discarded the plea of alibi taken by the accused---Conviction of accused under S. 302(b), P.P.C. was upheld in circumstances---Petition for leave to appeal was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Case of a single fire-shot and the recovery of weapon had been held to be inconsequential---High Court, in such circumstances, had rightly converted the death sentence awarded to accused into imprisonment for life---Petition for leave to appeal was dismissed accordingly.

Rai Bashir Ahmed, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Petitioners (in Crl. P. No. 1035-L of 2014).

Nemo for Petitioners (in J.P. No. 364 of 2014).

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

Nemo for Respondent No.1 (in Crl. P. No. 1035-L of 2014).

2017 S C M R 2036

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Sardar Tariq Masood, JJ

MAZHAR IQBAL and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 837-L and 904-L of 2013, decided on 31st August, 2017.

(On appeal from the judgment dated 24.6.2013 passed by the Lahore High Court, Lahore in Crl. Appeal No. 990 of 2012)

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

----Ss. 97, 100 & 302(c)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Right of private defence of the body and property extending to causing death of trespasser---Scope---Site plan did not show that the house of the complainant was at a short distance from the crime scene, therefore, complainant's (widow of the deceased's) claim that she heard the noise of commotion and was attracted to the spot, was absolutely unfounded and it was for such reason that the matter was reported to the police with a considerable delay---Other two alleged witnesses who were attracted to the crime scene were permanent residents of another city, therefore, for all legal intents and purposes they were chance witnesses and unless they justified their presence at the crime spot, by giving cogent reasons, their testimony could not be readily accepted---Complainant and prosecution witnesses had admitted that the deceased was maintaining illicit relations with a woman living in the house of accused party, therefore, deceased's act of trespassing into their house was certainly not for any good reason but for illicit purposes---Law gave right to the occupant of any property to expel any intruder/trespasser and if the trespasser had made a trespass for illicit matters, the right of self-defence of property and person was further fortified even to the extent of causing death of trespasser if he did not retreat after having been told or warned to retreat---No corroboratory evidence of any legal worth was available on record to give the story set up in the FIR any credence and strength---Benefit of doubt was extended to the accused and he was acquitted of all the charges levelled against him.

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

----Ss. 97, 100 & 302---Qatl-i-amd committed in self-defence---Right of private defence of the body and property extending to causing death of trespasser---Scope---Law gave right to the occupant of any property to expel any intruder/trespasser and if the trespasser had made a trespass for illicit matters then, the right of self-defence of property and person was further fortified even to the extent of causing death of trespasser if he did not retreat after having been told or warned to retreat.

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

----S. 302---Qatl-i-amd committed due to suspicion of illicit relations---Medico-legal Report, significance of---Scope---Supreme Court observed that in many cases of such nature the police deliberately avoid requesting the Medico-legal Officer to examine the private parts and clothes of the deceased/injured or the accused connected with the crime after getting swabs from their private parts for chemical examination; that such an opinion was important to facilitate the courts in reaching a just and proper conclusion---Supreme Court directed that copy of present judgment should be sent to the Prosecutor-Generals of all the provinces and the Islamabad High Court so that it was circulated amongst the Range Officers for future compliance.

Malik Mateeullah, Advocate Supreme Court for Petitioners (in Crl. P. No. 837-L of 2013).

Nemo for Petitioner (in Crl. 904-L of 2013).

Ch. Muhammad Waheed, A.P.-G., Punjab for the State.

2017 S C M R 2041

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

SAIF ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 38-L of 2009, decided on 8th May, 2017.

(On appeal against the judgment dated 16.01.2007 passed by the Lahore High Court, Lahore in Crl. Appeal No. 350 and Murder Reference No. 184 of 2001)

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Reappraisal of evidence---Accused had been attributed firearm injury on the person of the deceased---Ocular account was supported by the medical evidence, therefore, the accused was rightly convicted by the courts below---Appeal to the extent of conviction was dismissed accordingly.

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

----Ss. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---No deep rooted enmity existed between the parties and motive behind the occurrence was that the accused's side had purchased some landed property from a party and they had asked the brother of the complainant to arrange the amount of advance paid towards said transaction---According to the contents of the FIR the occurrence had started after exchange of abuses---Recovery of weapon at the instance of the accused was inconsequential as no report of Forensic Science Laboratory qua the said weapon was available on record---Conviction recorded against accused was maintained however his sentence of death was reduced to imprisonment for life---Appeal was partly allowed accordingly.

Syed Zahid Hussain Bukhari, Advocate Supreme Court for Appellant.

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

Syed Nisar Ali Shah, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for the Complainant.

2017 S C M R 2044

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs Department Peshawar and others---Petitioners

Versus

MEHMOOD KHAN---Respondent

Civil Petition No. 332-P of 2017, decided on 13th September, 2017.

(On appeal from the judgment dated 9.5.2017 passed by the Peshawar High Court, Bannu Bench in W.P. No. 488-B of 2016)

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

----S. 382-B---Penal Code (XLV of 1860), S. 302---Period of pre-conviction detention not considered while awarding sentence of imprisonment---Technical omission by the court---Scope---High Court had partly accepted the appeal filed by the accused against his death sentence and reduced the same to life imprisonment, however, the High Court ignored the mandatory provision of S. 382-B, Cr.P.C., and did not consider the pre-conviction period during which accused remained in custody---Accused filed constitutional petition before the High Court, which was allowed and he was given the benefit of S. 382-B, Cr.P.C. along with general and special remissions earned during the period of detention/imprisonment---Contention on behalf of prosecution was that if any court omits to grant the benefit under S. 382-B, Cr.P.C., subsequently, the same could not be sought through an independent (constitutional) petition because that would amount to a review of the original judgment which was not permissible under the law---Validity---Benefit of deducting pre-conviction detention period from the sentence awarded was mandatory under S. 382-B, Cr.P.C.---Cogent, strong and convincing reasons had to be recorded for refusal to grant such benefit---Jailer in whose custody the prisoner was undergoing sentence, was bound to award the benefit under S. 382-B, Cr.P.C. even if the judgment was silent, unless the court for cogent and convincing reasons had expressly refused to grant such benefit---In the present case, omission by the High Court in ignoring S. 382-B, Cr.P.C. was a technical omission and not a substantive one, thus, it did not attract any bar to amend the original judgment, which could be rectified at any stage---By allowing the constitutional petition the High Court rectified the omission and the command of the law was given effect in letter and spirit---Petition for leave to appeal was dismissed accordingly.

(b) Administration of justice---

----Inadvertent omission on part of a court/judge in applying the correct law--- Judges were duty bound to do justice and to apply the correct law to the facts of a case---Any inadvertent omission on the part of the court/judge shall not deprive the party entitled to any relief if the law directed grant of such relief in clear language.

(c) Pakistan Prison Rules, 1978---

----Chap. 8 [Rr. 198 to 223]---Penal Code (XLV of 1860), S. 302---General and special remissions earned during the period of detention/imprisonment not granted---Legality---High Court had partly accepted the appeal filed by the accused against his death sentence and reduced the same to life imprisonment, however, general and special remissions earned during the period of his detention/imprisonment were not granted---Accused filed constitutional petition before the High Court, which was allowed and he was given the relief of general and special remissions earned during the period of detention/ imprisonment---Contention on behalf of prosecution was that a cell phone without "SIM" was recovered from the possession of the accused inside the jail premises thus, he was not entitled to earn remissions according to the law---Validity---Record did not show whether any inquiry was held to determine the purpose for which the accused allegedly kept the mobile phone or whether it was actually recovered from his possession---On the mere statement of the lower jail staff accused was charged for possessing a mobile phone in jail---Besides the cell phone had no "SIM card", thus, it was a useless article---No Rule of the Pakistan Prison Rules (Jail Manual) permitted declining remissions on such ground, thus the direction given by the High Court in its constitutional jurisdiction to grant special and general remissions to the accused was fully justified in law---Petition for leave to appeal was dismissed accordingly.

Umar Farooq Adam, Additional A.-G. Khyber Pakhtunkhwa for Petitioner.

Nemo for the State.

2017 S C M R 2048

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

GHULAM MUHAMMAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 72-L and 73-L of 2009, decided on 11th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 13.10.2008 passed in Criminal Appeal No. 680 of 2002, Criminal Revision No. 322 of 2002 and M.R. No. 587 of 2002)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Accused and co-accused had been attributed hatchet blows on the person of deceased in the FIR---Ocular account was furnished by complainant and another witness who while appearing before the Trial Court stood by the contents of the FIR---Injuries caused by the accused and co-accused were observed by the doctor who conducted autopsy on the dead body of deceased---Prosecution case was further corroborated by the recovery of hatchets at the instance of both the accused and co-accused and positive reports of Chemical Examiner and Serologist vis-a-vis the said hatchets---Prosecution successfully proved its case against the accused and co-accused---Appeal to the extent of conviction was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Motive behind the occurrence was not believed by the High Court---Sentence of death awarded to accused was reduced to imprisonment for life accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Failure to prove motive---Once the prosecution alleged a motive and failed to prove the same during the trial, the same could be taken as a mitigating circumstance while deciding the quantum of sentence of a convict.

Nemo for Appellants (in Crl. A. No. 73-L of 2009).

Rai Bashir Ahmed, Advocate Supreme Court and Ch. Zafar Hussain Ahmed, Advocate Supreme Court for Appellants (in Crl. A. No.72-L of 2009).

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

2017 S C M R 2051

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

SUDHIR AHMED and others---Appellants

Versus

The SPEAKER, BALOCHISTAN PROVINCIAL ASSEMBLY and others---Respondents

Civil Appeals Nos. 704 to 706, 708, 711 and 778 of 2017, decided on 25th September, 2017.

(On appeal against the judgment dated 14.03.2017 of the High Court of Balochistan, Quetta passed in C.Ps. Nos. 99/2017, 961/2016 and 936 of 2016)

(a) Civil service---

----Deputationists absorbed into different Government departments---Legality--- Repatriation to parent department--- Where a post could not be filled except by initial recruitment or promotion, appointment by deputation or by absorption being against the law could not be maintained--- Appointment by absorption, which more often than not, was resorted to through the intervention of the people in power by ignoring merit, could not be approved and upheld.

Contempt proceedings against the Chief Secretary Sindh and others 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(b) Civil service---

----Appointment by absorption---Scope---Civil servant of non-cadre post could not be absorbed against a cadre post.

Contempt proceedings against the Chief Secretary Sindh and others 2013 SCMR 1752 ref.

Raja Saifur Rehman, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Appellants (in C.A. 704 of 2017).

Mir Aurangzeb, Advocate-on-Record/AC for Appellants (in C.A. 705 of 2017).

Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Appellants (in C.As. 706 and 778 of 2017).

Abdul Reheem Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. 708 of 2017).

Faisal Khan Appellant in person (in C.A. 711 of 2017).

Amanullah Kanrani, AG Balochistan and Ayaz Khan Swati, Additional AG Balochistan for Respondents.

Sajjid Illyas Bhatti, DAG for Respondents (in C.A. 778 of 2017).

2017 S C M R 2060

[Supreme Court of Pakistan]

Present: Mushir Alam, Dost Muhammad Khan and Sajjad Ali Shah, JJ

AAMIR BASHIR and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 876 and 889 of 2017, decided on 19th September, 2017.

(On appeal from the order dated 1.8.2017 passed by Islamabad High Court, Islamabad in Crl. Misc. No. 330-BC of 2017)

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

----S. 498---Pre-arrest bail---Assessment of evidence---Principles---While deciding bail petitions only tentative assessment of the material and facts available on record was to be made and deeper appreciation of the same should be avoided.

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

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

----S. 498---Pre-arrest bail---Principles---Any fact which may not be sufficient to cast doubt of absolute nature on the prosecution case but was sufficient to be considered for grant of bail, could not be lightly ignored.

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

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 452 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, common intention---Pre-arrest bail, grant of---Mala fides of complainant---Complainant kept silent about the matter for seven long months in mysterious circumstances---Similarly, the investigating agency was clueless and could not trace out the real culprits because the impression, given in the story contained in the FIR, was that of an attempted dacoity and it was after seven months that complainant charged the two accused persons without furnishing any supporting material much less evidence/proof---Possibility existed of mala fide and malice on part of complainant because one of the accused was divorced by the son of the complainant at the time when she was having suckling baby and two other tender aged children---Bitterness widened between the parties due to pending litigation over the custody of children---Both the accused persons were granted pre-arrest bail as mala fides, ill will and ulterior considerations of the complainant party for their arrest could not be ruled out---Supreme Court directed that accused persons shall remain associated with the inquiry/investigation and trial, and in case of abuse or misuse of concession of bail the Trial Court would cancel their pre-arrest bail.

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

----S. 498---Pre-arrest bail---Grounds---Mala fide of complainant or investigating agency---Principles---Beside making out a prima facie case for grant of pre-arrest bail, the accused had to show some mala fide on the part of the complainant and the investigating agency, motivated by caprice and ulterior motives to humiliate and disgrace the accused person in case of arrest---At bail stage, however, it was difficult for an accused person to furnish tangible proof about the element of mala fide or foul play on the part of the complainant or the arresting agencies therefore, the court had to look at the material available on record and to draw inferences there-from about the mala fide or ulterior motive, on account of which the intended arrest of the accused was motivated.

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

----S. 498---Pre-arrest bail granted by Sessions Court---Interference in bail granting order by the High Court---Principles---Powers and jurisdiction of the Sessions Court and the High Court to grant pre-arrest bail were co-extensive---High Court did not act as an Appellate Court in such matters therefore, once pre-arrest bail was granted by Session Court for cogent reason, then, the High Court had to show maximum restraint in re-calling the same unless the bail granting order was shown to be absolutely perverse or had been granted in disregard of the settled principles regulating grant or refusal of such bail.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 452 & 34---Pre-arrest bail---Investigation conducted by Inter-Services Intelligence (ISI) [intelligence branch of the Armed Forces]---Legality---Supreme Court observed that taking of control of the investigation of present case and cognizance by the ISI, which was neither authorized nor mandated to conduct and control investigation in such nature of cases, was entirely illegal and without lawful authority---Supreme Court directed that such phenomenon shall not be repeated in future and in case such agency forcibly took cognizance and control of investigation of such cases from the police, the same would be in clear violation of the provisions of law and the Constitution and the person/authority would expose itself to criminal prosecution.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioners (in Crl. P. No. 876 of 2017 along with Petitioner).

Ch. Muhammad Ashraf Gujjar, Advocate Supreme Court, Nazir Ahmed Bhutta, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record along with Dr. Najeeba Sultan Bhatti for Petitioners.

Ch. Hidayatullah for the Complainant in person.

Mian Abdul Rauf, A.-G. Islamabad and Amir Umar, Inspector for the State.

2017 S C M R 2066

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

BAHADUR KHAN and others---Appellants

Versus

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

Civil Appeal No. 353 of 2015 and C.M.As. Nos. 1493 and 2079 of 2015 and Civil Appeals Nos. 632 to 673 of 2017, decided on 25th September, 2017.

(On appeal against the judgment dated 03.06.2014 passed by the Peshawar High Court, Peshawar in W.P. No. 3324 of 2011 and the judgment dated 16.01.2017 passed by the Lahore High Court, Lahore in Intra Court Appeals Nos. 120 to 146 and 148 to 156 of 2016 and 460 to 464 and 991 of 2016)

(a) Banks (Nationalization) Act (XIX of 1974) [un-amended]---

----S. 20--- Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court---Scope---Government of Pakistan, Finance Division notification letter dated 30-11-1977 ("the notification") relating to pension and retirement benefits of officers/executives of Banks---Whether said notification was a statutory instrument---Said notification was issued by the Federal Government in terms of S. 20 of the Banks (Nationalization) Act, 1974, and was thus statutory in nature---Violation of any of its provisions was amenable to the constitutional jurisdiction of the High Court.

Government of Pakistan, Finance Division notification/letter dated 30-11-1977 ("the notification") provided a comprehensive basis for determination of rate and scale of pension. Said notification had not been termed as one notifying the rules but it in its tone and tenor possessed all such attributes from whatever angle it was looked at. It had not been stated in the notification that it had been issued under Section 20 of the Banks Nationalization Act, 1974 but the fact was that no other provision of the Act could enable the Federal Government to issue a notification dealing with the matters envisaged by Section 20 of the Act. Words used in the notification left no doubt that it was issued under section 20 of the Act. It would be rather unjust and even unrealistic to treat such notification as an administrative or executive instruction when it admittedly rescinded and replaced the existing scheme of Pension Contributory Provident Fund and Gratuity.

Notification having been issued by the Federal Government in terms of section 20 of the Banks (Nationalization) Act, 1974 was statutory in nature and violation of any of its provisions was amenable to the constitutional jurisdiction of the High Court.

(b) Banks (Nationalization) Act (XIX of 1974) [as amended]---

----S. 11---Board of the Bank, functions of---Whether the Board, after the dissolution of the 'Pakistan Banking Council' had the power to rescind, replace or repeal a notification issued by the Federal Government of Pakistan in terms of S. 20 of the Banks (Nationalization) Act, 1974---Board of the Bank, with the dissolution of the Pakistan Banking Council, became more autonomous and independent in managing the Bank and determining the terms and conditions of services of the officers and executives of the Bank, however, it had not been given a power by any of the provisions in general and S. 11 of the Act in particular to rescind, replace or repeal a statutory dispensation already in force.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

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

----S. 20---Federal Government notification---Non-publication in the official gazette--- Effect--- Failure to have the notification published in the official gazette would not shear it off its statutory status.

Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261 ref.

(d) Estoppel---

----No estoppel could exist against a statute or rules having statutory force.

(e) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches, principle of---Pensionary rights---Recurring right---Circular affecting pensionary rights of employees of a government Bank challenged by way of a constitutional petition before the High Court ten years after the issuance of the circular---Said petition would not be hit by the principle of laches as pension was a recurring right.

Pakistan Telecommunication Employees Trust (PTET) through M. D., Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472; Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2015 PLC (C.S.) 296; Constitution Petition No. 127 of 2012, decided on 11.04.2013 regarding Pensionary Benefits of the Judges of Superior Court PLD 2013 SC 829; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others 1999 SCMR 382; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206 Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary Ministry of Defence and others PLD 2006 SC 602 and I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Abdul Rahim Bhatti, Advocate Supreme Court, Abdul Rehman Khan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant No.1 (in C.A. 353 of 2015).

Salman Akram Raja, Advocate Supreme Court for Appellant No.2 (in C.A. No. 353 of 2015).

Khalid Anwar, Senior Advocate Supreme Court, Kh. Muhammad Farooq, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant No.2 (in C.As. 632-673 of 2017).

Sohail Mehmood, DAG, Munir Ahmed, J.S. M/o Finance and Abid Channa, S.O. M/o Finance for Respondents.

Salman Akram Raja, Advocate Supreme Court for Respondent No. 1 (in C.A. 632 of 2017).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 1 (in C.As. 633, 634, 636, 638, 639, 643, 646, 649, 650, 652, 653, 654, 656, 658, 659, 660, 662, 666 and 670 of 2017).

Faiz Rasool Jalbani, Advocate Supreme Court for Respondent No. 1 (in C.As. 644, 645, 648, 657, 661, 664, 667, 669 and 671 of 2017).

Umar Hayat Khawaja, Akbar Ali and Syed Jehangir in person.

Abdul Rahim Bhatti, Advocate Supreme Court, Abdul Rehman Khan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record (in C.M.As. 1493 and 2079 of 2015).

2017 S C M R 2091

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Manzoor Ahmad Malik, JJ

SALEEM KHAN and another---Petitioners

Versus

D.G. EHTISAB COMMISSION, KHYBER PAKHTUNKHWA and others---Respondents

Civil Petitions Nos. 3752 and 3760 of 2016, decided on 4th January, 2017.

(On appeal from the judgment dated 29.11.2016 passed by the Peshawar High Court, Peshawar in W.Ps. Nos. 3565-P and 2925-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014), Ss. 23 & 24---Corruption and corrupt practices---Bail, grant of---Further inquiry---Accused and co-accused were alleged to have connived with each other to manipulate a public auction, causing loss of millions of rupees to the public exchequer---Prosecution had conceded that no direct evidence was available on record to show whether any wrongful gain was made by the accused and co-accused or that the alleged illegal money collected or secured was traced---Allegation against the co-accused was hard to believe as it was not understandable as to how a junior clerk (co-accused) could conveniently influence auction proceedings conducted under the supervision of nine Member Apex Committee, consisting of senior most officers of the Corporation, headed by the Chairman---Prosecution could not point out from the record that the auction proceedings were conducted and held in violation of law and the rules on the subject or any illegality was committed during the said course---Prosecution entirely based its arguments on the statement of the highest bidder recorded under S.164, Cr.P.C. where he had disowned his participation in the auction proceedings and getting the contract in his own name---Press reporters/photographers were invited to the auction proceedings by the accused, and one official photographer of the Corporation was also present to record video of the entire proceedings but such recordings were not placed on record, which could determine finally as to whether the highest bidder was telling the truth and whether or not he was physically present in the auction proceedings---No blind reliance could be placed on such statement of the highest bidder---Case against the accused and co-accused called for further inquiry within the meaning of S. 497(2), Cr.P.C., therefore, both of them were granted bail.

Khawaja Azhar Rasheed, Advocate Supreme Court, Tariq Mehmood, Senior Advocate Supreme Court, Syed Arshad Ali, Senior Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Appellants.

Qazi Babar Irshad, DPG, Ehtesab Commission, KPEC with Muhammad Farooq Shah, APG, Nasir Mehmood Mughal, Spl. P.G. NAB and Mian Arshad Jan, Additional A.-G., Khyber Pakhtunkhwa for Respondents.

2017 S C M R 542

[Supreme Court of Canada]

Present: McLachlin, C.J., Moldaver, Karakatsanis, Wagner, Gascon, Cote and Brown, JJ

B.C. FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION---Appellant

Versus

ATTORNEY GENERAL OF BRITISH COLUMBIA and others---Respondents and Interveners

File No. 36495, decided on 26th January, 2017.

(On appeal from the Court of Appeal for British Columbia)

(a) Election---

----"Sponsor" of "election advertising"--- Meaning--- Freedom of expression--- Political self-expression--- Scope--- Individuals or organizations who wished to "sponsor election advertising" were required by S. 239(1) of Election Act, R.S.B.C. 1996 (Canada) to register with Chief Electoral Officer---Question as to whether individuals who engaged in political self-expression through small-scale election activities like displaying homemade signs in their windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them, came within definition of "sponsor" and needed to register---Held, that the words of Ss. 228, 229 & 239 of the Election Act, R.S.B.C. 1996 [Canada] ("the Act") read in their grammatical and ordinary sense and harmoniously with the statutory scheme, the object of the Act, and the intention of the legislature, indicated that a "sponsor" required to register was an individual or organization who received an advertising service from another individual or organization, whether in exchange for payment or without charge---Individuals who neither paid others for advertising services nor received advertising services from others without charge were not "sponsors" within the meaning of S. 229(1) of the Act---Any individual working entirely on his own, without paying for or receiving any service in the creation or dissemination of election advertising, was not required to comply with any of these provisions of the Act---Such individuals may transmit their own points of view, whether by posting a handmade sign in a window, or putting a bumper sticker on a car, or wearing a T-shirt with a message on it, without registering---Small-scale election advertising of such nature was not covered by the Act---By confining the registration requirement to sponsors and exempting individual political self-expression by persons who were not sponsors, S. 239 of the Act tailored the impingement on expression to what was required by the object of the Act---Appeal was dismissed accordingly.

(b) Fundamental rights---

----"Freedom of expression"---Scope---"Political expression" laid at the core of the guarantee of "free expression"---Limitations on such freedom must be supported by a clear and convincing demonstration that they were necessary, did not go too far, and enhanced more than harm the democratic process.

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 29; R. v. Zundel, [1992] 2 S.C.R. 731, at pp. 752-53; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 763-64 and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355-56 ref.

(c) Interpretation of statutes---

----Words of an Act were to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 ref.

(d) Words and phrases---

----"Sponsor"---Meaning.

Collins Canadian Dictionary (2010), at p.911 ref.

(e) Election---

----"Sponsor" of "election advertising"---Registration requirement---Purpose---Registration of sponsors of election advertising increased transparency, openness, and public accountability in the electoral process and thus promoted an informed electorate.

(f) Election---

----"Sponsor" of "election advertising"---Freedom of expression---Scope---Individuals or organizations who wished to "sponsor election advertising" were required by S. 239(1) of Election Act, R.S.B.C. 1996 [Canada] ('The Act") to register with Chief Electoral Officer---Question as to whether registration requirement was a reasonable and demonstrably justified limit on expression of such sponsors---Held, that although the registration requirement imposed on sponsors limited their right of expression guaranteed by S. 2(b) of the Canadian Charter of Rights and Freedoms ("the Charter"), the limit was justified under S.1 of the Charter, which provided that rights and freedoms were subject to reasonable limits prescribed by law as could be demonstrably justified in a free and democratic society---Besides the scope of the infringement of S. 2(b) of the Charter was minimal---Registration process was simple and unlikely to deter much, if any, expression in which a sponsor would otherwise engage---Impingements on the freedom of political expression due to the registration requirement were limited, since only political expression in the form of 'sponsorship' of election advertising stood to be delayed or inhibited---Sponsorship involved receiving advertising services; it was an organized activity that involved at least two, and usually more, people; it was by its nature not spontaneous---Such limited deleterious effects were outweighed by the benefits of the registration scheme i.e. permitting the public to know who was engaged in organized advocacy in their elections, ensuring that those who sponsored election advertising must provide the public with an assurance that they were in compliance with election law, and providing the Chief Electoral Officer with information that could assist in the enforcement of the Act and in informing sponsors of its requirements---Appeal was dismissed accordingly.

Alison M. Latimer and Sean Hern for Appellant.

Karen A. Horsman, Q.C. and Sarah Bevan for the Respondent.

Michael H. Morris, for the Invervener the Attorney General of Canada.

Daniel Guttman and Emily Bala, for the intervener the Attorney General of Ontario.

Dominique A. Jobin and Jean-Vincent Lacroix, for the intervener the Attorney General of Quebec.

Sheila Tucker and Joanne Lysyk, for the intervener the British Columbia Civil Liberties Association.

Gillian T. Hnatiw and Zohar R. Levy, for the intervener the Canadian Civil Liberties Association.

2017 S C M R 1070

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ

SIDNEY GREEN---Appellant

Versus

THE LAW SOCIETY OF MANITOBA---Respondent

and

FEDERATION OF LAW SOCIETIES OF CANADA---Intervener

File No. 36583, decided on March 30, 2017.

(On appeal from the Court of Appeal for Manitoba)

Per Wagner, J: McLachlin C.J., Moldaver, Karakatsanis and Gascon JJ., concurring; Abella and Côté JJ., dissenting.

(a) Legal practitioner---

----Law Society (Bar Council)---Rules made by Law Society---Standard for judicial review of such Rules---Scope---Standard applicable to the review of a law society rule was 'reasonableness'---Rule would be set aside only if it was one no reasonable body informed by the relevant factors could have enacted---Substance of the rule must conform to the rationale of the statutory regime set up by the legislature---Reasonableness was the appropriate standard for several reasons; first, in making rules of general application to the profession, the benchers of a law society acted in a legislative capacity; that the standard of review must reflect a law society's broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest; second, many benchers of a law society were also elected by and accountable to members of the legal profession, and applying the reasonableness standard ensured that the courts would respect the benchers' responsibility to serve those members; third, a law society acted pursuant to its home statute in making rules, and as a result, there was a presumption that the appropriate standard was reasonableness; and finally, a law society was a self-governing professional body with expertise in regulating the legal profession at an institutional level.

Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190; Canadian National Railway Co. v. Canada (Attorney General) 2014 SCC 40, [2014] 2 S.C.R. 135, at para 53; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 24; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras 34 and 39; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 59 and 87; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 33 and Pearlman v. Monitoba Law Society Judicial Committee [1991] 2 S.C.R. 869, at p.887 ref.

(b) Legal practitioners---

----Law Society (Bar Council)---Legislative mandate---Scope---Rules made by Law Society requiring all practising lawyers to complete Continuing Professional Development ("CPD") every year---Non-compliance with such rules attracting suspension without right to hearing or right of appeal---Question as to whether such rules were valid in light of the Law Society's mandate---Appellant was a practising lawyer and member of The Law Society of Manitoba ("Law Society")---Despite the Law Society's mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development ("CPD") a year, appellant did not report any CPD activities for the years 2012 or 2013---Over a year after appellant's failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law---Appellant was also invited to correct any errors in his CPD record and was informed that it was possible for the 60-day delay to be extended---Appellant did not reply, nor did he apply for judicial review of the decision to suspend him, rather he filed an application challenging the validity of certain provisions of the Rules of The Law Society of Manitoba ("Rules") with respect to CPD---Judge at first instance dismissed appellant's application, concluding that the impugned rules fell squarely within the Law Society's legislative mandate---Court of Appeal dismissed the appeal for similar reasons---[Per Wagner, J: (Majority view): To determine whether the impugned rules were reasonable, the scope of the Law Society's statutory mandate must first be construed---Purpose, words and scheme of The Legal Profession Act (of Canada) ("the Act"), supported an expansive construction of the Law Society's rule-making authority---Law Society was given a broad public interest mandate and broad regulatory powers to accomplish its mandate  a mandate which must be interpreted using a broad and purposive approach---Wording and scheme of the Act were also indicative of the breadth of the Law Society's authority and rule-making power, in particular, it was empowered to establish consequences for contravening the Act or the Rules, such as a suspension, for failing to meet the educational standards it was statutorily required to put in place---Since the Law Society had the power to create a CPD scheme, it necessarily had the power to enforce the scheme's standards---In the present case, the impugned rules were reasonable in light of the Law Society's statutory mandate; it was reasonable for the Rules to expose a lawyer to a suspension as a consequence for non-compliance with the CPD program---Legal Profession Act (of Canada) provided clear authority for the Law Society to create a CPD program that could be enforced by means of a suspension, and the overall purpose of the Act, the words used in it and the scheme of the Act showed that the impugned rules were reasonable in light of the Law Society's statutory mandate---Suspension, the purpose of which related to compliance, not to punishment or professional competence, was a reasonable and effective way to ensure consistency of legal service and to guarantee that even lawyers who were not interested in meeting the educational standards would comply---Right to practise law was not a common law right or a property right, but a statutory right that depended on the principles set out in the Act and the Rules---Moreover, imposing a suspension on members for failing to comply with the impugned rules without giving such members a right to a hearing or a right of appeal was not unreasonable in light of the Law Society's statutory powers; rather, it was entirely consistent with the Law Society's duty to establish and enforce educational standards---Suspension of the appellant was administrative in nature, and the impugned rules reasonably included no right to a hearing or right of appeal because lawyers were solely in control of complying with the rules in question at their leisure---Only a lawyer could end the suspension by complying with the requirements---Further, the rules permitting a suspension were not self-applying---In addition to a lawyer's procedural rights, the rules permitting a suspension expressly vested the chief executive officer of the Law Society with discretion to ensure that the effect of the Rules was not overly harsh---Lawyer's failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provided clear justification for the Law Society to impose a temporary suspension]---[Per Abella, J: (Minority view): Issue in the present case was not whether the Law Society could impose a suspension for failing to complete the 12 annual hours of mandatory education courses, but whether it could impose an 'automatic' one---Law Society's purpose was to "uphold and protect the public interest in the delivery of legal services with competence, integrity and independence"; those were the core values of a lawyer's professionalism---Protecting the public interest necessarily involved not only ensuring that a lawyer delivered legal services in accordance with such core values, but also protecting the public's perception in the professionalism of the delivery---While the primary goal of the Law Society was the protection of the public interest, it could not do so without also protecting the ability of its members to practise law professionally---Law Society's rule that members who failed to complete 12 mandatory hours of continuing professional development activities in a calendar year were automatically suspended was unreasonable, because it was inconsistent with the Law Society's mandate to protect the public's confidence in the legal profession---When a lawyer was suspended, so was public confidence in him or her, which is why the Law Society took care in its investigation of complaints regarding professional misconduct or incompetence  it helped ensure that a suspension was imposed only after at least some minimal procedural protections had been provided, and only after a range of lesser penalties had been considered---When a suspension was the result of such a process, the loss of public confidence was warranted---Where, however, a suspension was imposed automatically for the 'least' serious disciplinary breach possible  failing to attend 12 hours of classes  the Law Society was in breach of its duty to protect the public from the needless erosion of trust in the professionalism of lawyers---Economic costs of the suspension were manifest, as were the reputational ones, especially since the rules required the chief executive officer of the Law Society to notify every member of the Law Society and each of the chief justices of the courts in the province of the name of a member who was suspended---Suspension for failing to complete 12 mandatory hours of CPD, was the only competence matter regulated by the Law Society that had no procedural protections, no range of remedies, and no discretionary leeway on the part of the chief executive officer, and it alone attracted an automatic suspension, regardless of justificatory circumstances; this made it arbitrary---Absence of discretion, procedural fairness or remedial options stood in stark contrast to other provisions of the Act or Rules furthering the Law Society's mandate to establish standards for the competence of lawyers---Rule that lead to an automatic suspension for failing to attend 12 hours of continuing professional development was so far removed from ensuring the public's confidence in lawyers that it was manifestly unjust, and therefore, unreasonable].

United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at paras. 6-8; Law Society of New Brunswick v. Ryan, 2003 SCC 20 [2003] 1 S.C.R. 247; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, at para. 41 and Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 ref.

Per Abella, J:

(c) Legal practitioner---

----Law Society (Bar Council)---Legislative mandate---Scope---Law society could only enact rules that were consistent with the purposes, scope and objectives of its enabling statute, and its authority to do so must be exercised in a reasonable manner---Fact that deference was owed did not mean that a law society had carte blanche; there were several grounds for finding delegated legislation to be unreasonable, such as where it was manifestly unjust.

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), [2013] 3 S.C.R. 810; Waddell v. Governor in Council (1983), 8 Admin. L.R. 266 (B.C.S.C.), at p.292 and Kruse v. Johnson, [1898] 2 Q.B. 91 (Div. Ct.), at p.99 ref.

Charles R. Huband and Kevin T. Williams for Appellant.

Rocky Kravetsky and Jeffrey W. Beedell for Respondent.

Neil Finkelstein and Brandon Kain for the Intervener.

2017 S C M R 1444

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS---Appellant

Versus

ROBERT JODOIN and others---Respondents and Interveners

Decided on 12th May, 2017.

(On appeal from the Court of Appeal for Quebec)

Per Gascon, J; McLachlin C.J., Moldaver, Karakatsanis, Wagner, Brown and Rowe, JJ, concurring; Abella and Côté JJ, dissenting.

(a) Administration of justice---

----Power of court to manage and control proceedings before it---Scope---Courts had the power to maintain respect for their authority, which power included the power to manage and control the proceedings conducted before them---Court therefore had an inherent power to control abuse in such regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute---Court had to exercise such discretion in a deferential manner, but it allowed a court to ensure the integrity of the justice system.

R. v. Anderson 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Young v. Young [1993] 4 S.C.R. 3, at p. 136; Canam Enterprises Inc. v. Coles (2000) 51 O.R. (3d) 481 (C.A.), at para. 55 and Morel v. Canada 2008 FCA 53, [2009] 1 F.C.R. 629, at para. 35 ref.

(b) Costs--

----Award of costs against a lawyer (counsel) personally in criminal proceedings---Principles---Awarding of costs against lawyers personally flowed from the right and duty of the courts to supervise the conduct of the lawyers who appeared before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice---Lawyers, as officers of the court, had a duty to respect the court's authority, and if they failed to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct---Such power of the courts to award costs against a lawyer personally was not limited to civil proceedings, but could also be exercised in criminal cases, which meant that it may be exercised against defence lawyers---Such power applied in parallel with the power of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by their members.

Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842, at p. 845; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581 (Que. CA), at p. 587; R. v. Liberatore, 2010 NSCA 26, 292 N.S.R. (2d) 69; R. v. Smith (1999), 133 Man. R. (2d) 89 (Q.B.), at para. 43 and Canada (Procureur général) v. Bisson, [1995] R.J.Q. 2409 (Sup. Ct.); M. Code, at p. 122 ref.

(c) Costs---

----"Award of costs against a lawyer personally"---Contempt of court---Distinction---Although the criteria for an award of costs against a lawyer personally were comparable to those that applied to contempt of court , the consequences were by no means identical---Contempt of court was strictly a matter of law and could result in harsh sanctions, including imprisonment---Additionally, the rules of evidence that applied in a contempt proceeding were more exacting than those that applied to an award of costs against a lawyer personally, as contempt of court must be proved beyond a reasonable doubt---Due to the special status of lawyers as officers of the court, a court may therefore opt in a given situation to award costs against a lawyer personally rather than citing him or her for contempt.

I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Current Leg. Probs. 23, at pp. 46-48) ref.

(d) Costs---

----Award of costs against a lawyer (counsel) personally---Discretion of court to award costs against a lawyer personally in criminal proceedings---Scope---Threshold for exercising the courts' discretion to award costs against a lawyer personally was a high one---Award of costs against a lawyer personally could be justified only on an exceptional basis where the lawyer's acts had seriously undermined the authority of the courts or seriously interfered with the administration of justice---Such high threshold was met where a court had before it an unfounded, frivolous, dilatory or vexatious proceeding that denoted a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that was deliberate---Two important guideposts applied to the exercise of such discretion; the first guidepost related to the specific context of criminal proceedings, in which the courts must show a certain flexibility toward the actions of defence lawyers, whose role was not comparable in every respect to that of a lawyer in a civil case---If costs were awarded against a lawyer personally, the purpose must not be to discourage the lawyer from defending his or her client's rights and interests, and in particular the client's right to make full answer and defence---Considerations to be taken into account in assessing the conduct of defence lawyers, therefore, could be different from those that applied in the case of lawyers in civil proceedings---Second guidepost required a court to confine itself to the facts of the case before it and to refrain from indirectly putting the lawyer's disciplinary record, or indeed his or her career, on trial---To consider facts external to the case before the court could be justified only for the limited purpose of determining, first, the intention behind the lawyer's actions and whether he or she was acting in bad faith, and, second, whether the lawyer knew, on bringing the impugned proceeding, that the courts did not approve of such proceedings and that it was unfounded---In such regard, certain evidence that was external to the case before the court may sometimes be considered, because it was of high probative value and had a strong similarity to the alleged facts, in order to establish, for example, wilful intent and knowledge on the lawyer's part, however, it must be limited to the specific issue before the court, that is, the lawyer's conduct; it may not serve more broadly as proof of a general propensity or bad character.

R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 85; R. v. Trang, 2002 ABQB 744, 323 A.R. 297, at para. 481; Fearn v. Canada Customs, 2014 ABQB 114, 586 A.R. 23, at para. 121 and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 71, 72 and 82 ref.

(e) Costs---

----Power of court to award costs against a lawyer (counsel) personally in criminal proceedings---Procedural safeguards and pre-requisites---Court cannot award costs against a lawyer personally without following a certain process and observing certain procedural safeguards---Lawyer upon whom such a sanction may be imposed should be given prior notice of the allegations against him or her and the possible consequences---Notice should contain sufficient information about the alleged facts and the nature of the evidence in support of those facts, and should be sent far enough in advance to enable the lawyer to prepare adequately---Lawyer should have an opportunity to make separate submissions on costs and to adduce any relevant evidence in such regard---Applicable standard of proof was the balance of probabilities---In criminal proceedings, the prosecution's role on such issue must be limited to objectively presenting the evidence and the relevant arguments, and it was the court that was responsible for determining whether a sanction should be imposed, and only it had the power to impose one, in its role as guardian of the integrity of the administration of justice---Prosecution must confine itself to its role as prosecutor of the accused; it must not also become the prosecutor of the defence lawyer.

Y.-M. Morissette, "L'initiative judiciaire vouée à l'échec et la responsabilité de l'avocat ou de son mandant" (1984), R. du B. 397, at p. 425 ref.

(f) Costs---

----Power of court to award costs against a lawyer (counsel) personally in criminal proceedings---Abuse of process of the court to obtain a postponement or delay a case---Obstructing orderly conduct of the judicial process---Bad faith---Respondent, who was an experienced criminal lawyer, was representing ten clients charged with impaired driving---On the morning of a scheduled hearing in the court on a motion for disclosure of evidence in his clients' cases, before it even began, respondent presented a series of motions for writs of prohibition in which he challenged the jurisdiction of the judge who was to preside over the hearing, alleging bias on the judge's part---Before the motions were served, the parties learnt that another judge would be presiding instead---Motions were therefore put aside, and the hearing on the motion for disclosure of evidence began---During the hearing, respondent objected to the testimony of an expert witness called by the prosecution on the ground that he had not received the required notice---Presiding judge decided to authorize the examination in chief of the expert after the lunch break---During the break, respondent drew up a new series of motions for writs of prohibition, this time challenging that judge's jurisdiction and alleging, once again, bias on the judge's part---After the break, respondent informed the presiding judge of the writs of prohibition and the hearing was adjourned, as the service of such motions suspended proceedings until the superior court had ruled on them---Superior Court dismissed the motions and, at the prosecution's request, awarded costs against the respondent (counsel) personally---Legality---[Per Gascon, J; [Majority view] Circumstances of the present case were exceptional and justified an award of costs against the respondent personally---Respondent's conduct was particularly reprehensible, and the purpose of his conduct was unrelated to the motions he brought---Respondent was motivated by a desire to have the hearing postponed rather than by a sincere belief that the judges targeted by his motions were hostile---Moreover it was quite odd, if not unprecedented, for a lawyer to file, on the same day and in the same cases, two series of motions for writs of prohibition against two different judges on the same ground of bias---Respondent, thus, used the extraordinary remedies for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner---In such circumstances it was reasonable for the court to conclude that the respondent had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice---Procedural safeguards were also observed in the present case---Prosecution sent the respondent two prior notices of its intention to seek an award of costs against him personally---Respondent had more than three months to prepare---Prosecution's role was limited to notifying the respondent of its intention to seek an award of costs against him personally and presenting the relevant evidence to the judge---Respondent raised no objection to the process or to the evidence adduced on the issue of costs, nor did he insist on being represented by counsel or ask that the issue of costs be dealt with separately from the merits of the motions---Award of costs on the respondent personally was, thus, justified---[Per Abella and Côté JJ; [Minority view]: Personal costs orders were of an exceptional nature---In the criminal context, such orders could have a chilling effect on criminal defence counsel's ability to properly defend their client, therefore, they should only be issued in the most exceptional of circumstances and the prosecution should be very hesitant about pursuing them---In the present case, respondent's behaviour did not warrant the exceptional remedy of a personal costs order---Respondent's conduct was not unique and he was being punished as a warning to other lawyers engaged in similar tactics---Desire to make an example of respondent's behaviour did not justify straying from the legal requirement that his conduct be rare and exceptional before costs were ordered personally against him---Moreover, respondent's motions for writs of prohibition were not unfounded to a sufficient degree to attract a personal costs order---Prosecution had not provided respondent with the notice required for an expert witness testimony, as a result, he was entitled to an adjournment under the relevant Criminal Code---Judge presiding in the court only granted the respondent a brief adjournment over the lunch break and mistakenly said that the respondent had already cross-examined the prosecution's expert in other matters---In the circumstances, respondent's filing of motions for writs of prohibition for the purpose of suspending the proceedings could easily be seen as an error of judgment, but hardly one justifying a personal costs order]--- Appeal was allowed accordingly.

Daniel Royer and Catherine Dumais for Appellant.

Catherine Cantin-Dussault for Respondent.

Gilles Villeneuve and Mathieu Stanton for the Intervener the Director of Public Prosecutions.

Maxime Hebrard and Marlys A. Edwardh, for the intervener the Criminal Lawyers' Association (Ontario).

Walid Hijazi, Lida Sara Nouraie and Nicholas St-Jacques for Intervener Association des avocats de la defense de Montreal.

Mathew P. Good and Ariane Bisaillon for the Intervener the Trial Lawyers Association of British Columbia.

Frank Addario and Stephen Aylward for the Intervener the Canadian Civil Liberties Association.

2017 S C M R 1550

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

MOHSEN SAADATI BY HIS LITIGATION GUARDIAN, SARA ZAREI---Appellant

Versus

GRANT IAIN MOORHEAD, ABLE LEASING (2001) LTD. AND THI HAO HOANG and others---Respondents and Interveners

Decided on 2nd June, 2017.

(On appeal from the Court of Appeal for British Columbia)

(a) Tort---

----Negligence---Mental injury---Recovery of compensation for mental injury caused by defendant's negligence---Pre-requisites---Recovery for mental injury in negligence law depended upon the claimant satisfying the criteria applicable to any successful action in negligence; a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage---Negligence law (of Canada) recognized that a duty existed at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protected a right to be free from negligent interference with one's mental health---Said right was grounded in the simple truth that a person's mental health  like a person's physical integrity or property, injury to which was also compensable in negligence law  was an essential means by which that person choose to live life and pursue goals---Where mental injury was negligently inflicted, a person's autonomy to make those choices was undeniably impaired , sometimes to an even greater degree than the impairment which followed a serious physical injury---Ordinary duty of care analysis was therefore to be applied to claims for negligently caused mental injury---Particularly, liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework and the remoteness inquiry, which asked whether the harm was too unrelated to the wrongful conduct to hold the defendant fairly liable.

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53 and Bourhill v. Young [1943] A.C. 92 (H.L.), at p. 103 ref.

(b) Tort---

----Negligence---Mental injury---Recovery of compensation for mental injury caused by defendant's negligence---Question as to whether the claimant had to prove a recognized "psychiatric injury"---Finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric injury---Law of negligence accorded identical treatment to mental and physical injury---Requiring claimants who alleged mental injury to prove that their condition met the threshold of recognizable psychiatric illness, while not imposing a corresponding requirement upon claimants alleging physical injury to show that their condition carried a certain classificatory label, would accord unequal protection to victims of mental injury---Distinct rules which operated to preclude liability in cases of mental injury, but not in cases of physical injury, should not be erected--- Elements of the cause of action of negligence, together with the threshold for proving mental injury, furnished a sufficiently robust array of protections against unworthy claims---Furthermore, confining compensable mental injury to conditions that were identifiable with reference to psychiatric diagnostic tools was inherently suspect as a matter of legal methodology--- While, for treatment purposes, an accurate diagnosis was obviously important, a judge adjudicating a claim of mental injury was not concerned with diagnosis, but with symptoms and their effects---No necessary relationship existed between reasonably foreseeable mental injury and a diagnostic classification scheme--- Negligent defendant need only be shown to have foreseen injury, and not a particular psychiatric illness that came with its own label.

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 and S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin's Tort Law (7th ed. 2013), at p. 124 ref.

(c) Tort---

----Negligence---Recovery of compensation for mental injury caused by defendant's negligence--- Proof--- Expert evidence, reliance upon---Scope---To establish mental injury, claimants must show that the disturbance was serious and prolonged and rose above the ordinary annoyances, anxieties and fears that came with living in civil society---Expert evidence could assist in determining whether or not a mental injury had been shown---In assessing whether the claimant had succeeded, it will often be important to consider, for example, how seriously the claimant's cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment---To the extent that claimants did not adduce relevant expert evidence to assist the judge in applying the said considerations, they ran a risk of being found to have fallen short---While relevant expert evidence would often be helpful in determining whether the claimant had proven a mental injury, it was not required as a matter of law---Where a psychiatric diagnosis (expert evidence) was unavailable, it remained open to a judge to find on other evidence adduced by the claimant that he or she had proven on a balance of probabilities the occurrence of mental injury---Lack of a diagnosis (expert evidence) could not on its own be dispositive, it was something that the judge could choose to weigh against evidence supporting the existence of a mental injury---In rebutting a claim, it remained open to the defendant, to call expert evidence establishing that the accident could not have caused any mental injury, or at least any mental injury known to psychiatry.

(d) Tort---

----Negligence---Mental injury---Recovery of compensation for mental injury caused by defendant's negligence---Proof---Expert evidence, reliance upon---Scope---Award of damages for mental injury based on testimony of lay witnesses rather than on expert evidence---Appellant's vehicle was struck by a vehicle driven by the defendant---Appellant suffered chronic pain due to the accident and sued the defendant in negligence, seeking damages for non-pecuniary loss (including mental injury)---Trial judge found that the accident caused the appellant psychological injuries, including personality change and cognitive difficulties such as slowed speech, leading to a deterioration of his close personal relationships with his family and friends---Such finding did not rest on an identified medical cause or expert evidence, but was based on the testimony of appellant's friends and family to the effect that his personality had changed for the worse after the accident---Legality---Said findings of the trial judge had not been challenged by the defence, and, as findings of fact, they were entitled to appellate deference, absent palpable and overriding error---Trial judge accepted evidence that clearly showed a serious and prolonged disruption that transcended ordinary emotional upset or distress---Trial judge committed no legal error in treating evidence of appellant's symptoms as supporting a finding of mental injury, even in the absence of expert testimony associating them with an identified condition, thus, what mattered was the substance, i.e. the symptoms and not the label of the mental injury---Award of damages by the trial judge for mental injury caused to the appellant was reasonable, supported by the record, and fairly compensated appellant's loss---Appeal was allowed accordingly.

Dairn Shane and Joseph Fearon for Appellant.

Kathleen S. Duffield and Steven W. Lesiuk for Respondents.

Alan D'Silva and Aaron Kreaden for the Intervener.

2017 S C M R 1734

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

UNIPRIX INC.---Appellant

Versus

GESTION GOSSELIN ET BERUBE INC. and another---Respondents

Decided on 28th July, 2017.

(On appeal from the Court of Appeal for Quebec)

Per Wagner and Gascon,JJ.; Abella, Moldaver, Karakatsanis and Brown JJ., concurring; Côté, McLachlin (C.J.) and Rowe JJ., dissenting.

(a) Contract---

----Renewal clause, interpretation of---Contract having perpetual effect---Legality---Contract clause stipulating that contract renewable at discretion of only one party---Question as to whether trial judge correctly held that renewal clause was clear and that it faithfully represented parties' common intention of granting only one of parties the unilateral option to renew the contract every five years, which the other party would be unable to oppose---In the year 1998, the respondents ("pharmacists") decided to affiliate their pharmacy with the appellant's (pharmacist company's) banner---Parties entered into a contract of affiliation for a fixed term of five years---Contract contained a clause to the effect that it would be renewed automatically unless the respondents gave notice to the contrary---By virtue of said clause, the contract was renewed automatically in 2003 and 2008---In 2012, appellant notified the respondents that their contractual relationship would terminate as of 2013---Respondents objected, arguing that the contract of affiliation was to be renewed automatically unless they gave notice to the contrary; that nothing in the renewal clause entitled appellant to oppose such renewal---Appellant argued that it could oppose the renewal and terminate the contract upon the expiry of the term; that the interpretation proposed by the respondents could have the effect of binding the parties in perpetuity, which would be contrary to public order; that the contract should therefore be considered to be one for an indeterminate term which could be resiliated at any time on reasonable notice---Trial judge declared that the contract was renewed and that appellant could not resiliate the contract without cause as it had tried to do in the present case, and that unilateral renewal clauses were valid (under Quebec law) even though they might give a contract perpetual effect---Appellate Court affirmed the judgment of trial judge by holding that contracts that could have perpetual effect were not prohibited (under the Civil Code of Québec), and such contracts violated no fundamental value of the society; [Per Wagner and Gascon, JJ (Majority view); held, that unilateral renewal option granted to the respondents in the contract of affiliation was consistent with the other provisions of the contract, with the circumstances surrounding its signature and its object, and with the parties' conduct in applying it---To resolve the disagreement between the parties, the words of the contract, and more specifically those of the clause that fixed its term and the procedure for renewing it, must be interpreted---Contractual interpretation was a mixed question of fact and law---Supreme Court's role was limited to deciding whether the trial judge committed a palpable and overriding error in such regard---In the present case, the trial judge's interpretation to the effect that the renewal clause gave the respondents the right to renew the contract of affiliation as they saw fit every five years was not tainted by a palpable and overriding error---On the contrary, it was perfectly consistent with the other undertakings stipulated in the contract and with the circumstances in which it was formed---Firstly, the renewal clause itself was in no way ambiguous; it specifically provided that the respondents could notify appellant of their intention to renew or not to renew the contract, but it did not stipulate that appellant could give a similar notice to the respondents---Secondly, the renewal clause clearly provided that should the respondents fail to send the prescribed notice to the appellant, the agreement would be deemed to have been renewed---By virtue of law [Art. 2847 of Civil Code of Québec] the word "deemed" in the contract created a presumption that was absolute and irrebuttable---Resultantly, if the respondents sent no notice to the appellant, renewal was automatic and appellant could not oppose it---Other clauses dealing with the termination of the contract related solely to the option to resiliate the contract for cause that was conferred on the appellant---All said provisions formed an integral part of the agreement between the parties, and they had to be read and interpreted as a whole---Analysis of the circumstances in which the contract was concluded confirmed that the parties intended to leave the renewal of the contract to the discretion of the respondents---Firstly, appellant-company was created for the benefit of member pharmacists, such as the respondents, who had joined together for the purpose of developing their respective commercial and professional practices---Appellant existed to serve its members, it thus made sense that appellant would serve its members until they themselves decided to withdraw from the group, and that appellant therefore could not terminate the contract without cause---Secondly, the very conduct of the parties supported such interpretation: twice, appellant recognized that the silence of the respondents bound the parties for an additional five-year term---To interpret the contract of affiliation in such a way as to give appellant the power to oppose the renewal desired by the respondents would therefore be contrary to the words of the renewal clause, to the general scheme of the contract of affiliation, to the circumstances in which it was concluded, and to how it had been applied by the parties---Fact that the term of appellant's obligations pursuant to the contract of affiliation depended on the will of the respondents to renew it did not transform the contract into one for an indeterminate term---Parties agreed on a clear term of five years together with an equally clear renewal mechanism that would enable them to pursue their business relationship for fixed five-year periods---Any conclusion that the contract was one for an indeterminate term would fly in the face of logic and the clearly expressed intention of the parties---Parties intended to be bound by a renewal mechanism whose effects could be perpetual---Nothing (in the Civil Code of Québec) prohibited contracts such as the contract of affiliation from having effects that could be perpetual, nor was there any basis for concluding that such contracts were contrary to public order---Nothing in law (i.e the Civil Code of Québec), the academic literature or case-law supported the position that a contract of affiliation whose effects could be perpetual was contrary to (Quebec) civil law---Perpetual obligations did not in themselves offend any fundamental societal values and were not generally contrary to public order---In certain circumstances the imposition of perpetual obligations whose nature was such as to affect an individual's person and freedom could offend public order, but in the context of a corporate and commercial partnership such as the one between the appellant and the respondents, the individual freedom of the contracting parties was not at stake, and public order could not override the parties' intention---Trial judge had rightly concluded that the contract of affiliation was for a fixed term and that the option to renew it upon the expiry of each term was limited to the respondents---Notice of termination sent by appellant accordingly violated the terms of the contract of affiliation---Since the contract was not for an indeterminate term, appellant could not resiliate it without cause on reasonable notice as it tried to do in the present case]---[Per Côté, J, dissenting (Minority view); Trial judge's conclusion that the contract of affiliation was clear and need not be interpreted was a palpable and overriding error---Reading of the entire contract revealed ambiguities which should have led the trial judge to go on to interpret the parties' common intention---First, it was not clear from the renewal clause's wording that it was stipulated uniquely in favour of the respondents---Said clause clearly made appellant the beneficiary of a notice obligation, but nothing about the wording of the clause clarified that the presumption of renewal was stipulated in favour of one party or the other---Second, reference to other portions of the contract did nothing to resolve the ambiguity---Third, the ambiguity was magnified by the interaction between the express term of five years and the renewal clause---Presence of an express five year contractual term typically denoted the termination of obligations for both parties on expiry of the term---When read in light of the renewal clause, the five year term apparently functions asymmetrically to bind appellant, though not the respondents, in potential perpetuity---Fourth, the potential for the interests of a particular member/respondent to conflict with those of the collective raised a question as to whether the parties intended that appellant be forever beholden to any individual member/respondent---Finally, the extent to which the renewal was automatic was itself an open question---Renewal clause's wording suggested that the renewal was contingent, not automatic---Renewal clause kicked in only if the respondents failed to provide notice of whether they would leave or stay---Juridical effect of the renewal clause was to extend the same contract for a further period of time---Since only the respondents may oppose renewal, only they had the benefit of a certain term that would extinguish their obligations---Result of such a term was that the contract of affiliation would effectively have a hybrid term: one of five years as applied to the respondents; but one of potential perpetuity, or indeterminacy, as applied to the appellant---Contract's term must function symmetrically for both parties and the possibility of a hybrid term should not be endorsed---Even if it was assumed that the trial judge's reading of the renewal clause was correct, the contract of affiliation should be characterized as an indeterminate one---Contract for an indeterminate term may be resiliated on reasonable notice---Reasonableness of the notice of resiliation in any given case was a fact-driven, contextual inquiry---Considering the fact that appellant sent a notice of resiliation in July, 2012, the respondents would have benefitted from a reasonable notice by the date of the decision (in 2013), therefore, the contract of affiliation should be declared to be terminated as of date of present judgment]---Appeal was dismissed with costs accordingly.

Larouche v. Néron, 2016 QCCA 692, at para. 5 (CanLII); Lamco II s.e.c. v. Québec (Ville), 2016 QCCA 757, at para. 2 (CanLII); Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47-50; Construction BFC Foundation ltée v. Entreprises Pro-Sag inc., 2013 QCCA 1253, at paras. 67 and 91 (CanLII)); Ferme Vi-Ber inc. v. Financière agricole du Québec, 2016 SCC 34, [2016] 1 S.C.R. 1032, at paras. 76-82; Lac-Sergent (Ville) v. Lapointe, 2012 QCCA 1935, at para. 40 (CanLII)); D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at Nos. 2044, 2124, 2154, 2158, 2194 & 2196; Consumers Cordage Co. v. St. Gabriel Land & Hydraulic Co., [1945] S.C.R. 158, at p. 161; Cyclorama de Jérusalem Inc. v. Congrégation du Très Saint Rédempteur, [1964] S.C.R. 595, at p. 597 and Neale v. Katz, [1979] C.A. 192, at p. 193 ref.

J. Pineau, D. Burman and S. Gaudet, Théorie des obligations (4th ed. 2001), by J. Pineau and S. Gaudet, Nos. 280 & 282 reasoning found to be flawed and inconclusive.

BMW Canada inc. v. Automobiles Jalbert inc., 2006 QCCA 1068. (CanLII); Bombardier Produits récréatifs inc. (BRP) v. Christian Moto Sport inc. (CMS), 2012 QCCA 1670; Placements Sergakis inc. v. Société des loteries vidéo du Québec inc., 2009 QCCS 4976; E. & S. Salsberg inc. v. Dylex Ltd., [1992] R.J.Q. 2445 (C.A.) and Parkway Pontiac Buick inc. v. General Motors du Canada ltée, 2012 QCCS 618, distinguished.

(b) Contract---

----Interpretation and characterization--- Principles--- Intention of parties---Scope---To characterize a contract, the court must consider not only the obligations and other effects of the contract that the parties had stipulated, but also in some cases the circumstances of its formation and how they had applied it---In such respect, although the court would never be bound by the parties' own characterization, and although he or she had the power to attribute to the agreement the legal nature that, in his or her view, truly corresponded to its content, the court nevertheless remained bound by the common intention of the parties as regards the content of their agreement---Court had to consider whether the name given to a contract actually corresponded to the effects being sought, and it was up to [the Court] to impose on the parties the nature of their agreement that resulted from the expression of their intention.

Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 7e éd. par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Que.: Yvon Blais, 2013. at No. 56 and Fréchette, Pascal. "La qualification des contrats: aspects théoriques" (2010), 51 C. de D. 117. at pp. 151 & 157 ref.

(c) Contract---

----Interpretation---Principles---First step in interpreting a contract was to determine whether its words were clear or ambiguous---Purpose of said step was to prevent court from departing, deliberately or unexpectedly, from a clearly expressed intention of the parties---Court must defer to a clear contract---Said step served as a bulwark against the risk of an interpretation that deviated from the true intention of the parties and subverted the scheme of their agreement---Where the words of the contract were clear, the court's role was limited to applying them to the facts before it---On the other hand, if the court identified an ambiguity, it must resolve the ambiguity by proceeding to the second step of contractual interpretation---Cardinal principle that guided the second step was that the common intention of the parties rather than adherence to the literal meaning of the words shall be sought (Art. 1425 of Civil Code of Québec)---In such exercise it was necessary to consider intrinsic aspects of the contract, such as the words of the clause at issue and the other clauses, in order to ensure that each of them was given a meaningful effect and that each was interpreted in light of the others---Interpretation of a contract also required consideration of the nature of the contract and of the context extrinsic to it, including the factual circumstances in which it was formed, how the parties had interpreted it, and usage.

Droit de la famille - 171197, 2017 QCCA 861, at para. 62 (CanLII); Samen Investments Inc. v. Monit Management Ltd., 2014 QCCA 826, at para. 46-47 (CanLII); Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 7e éd. par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Que.: Yvon Blais, 2013. at Nos. 413 & 417 and D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at Nos. 1570, 1584-86, 1593-94, 1600, 1603 & 1607 ref.

(d) Contract---

----"Interpretation" and "characterization of contract"---Distinction---Characterizing and interpreting a contract were two distinct actions, although in both cases one sought to determine the intention of the parties---Characterization, first of all, served to determine what object the parties intended to give to their agreement as a whole, and its essential object was the linking of the contract at issue to a legal category---For this purpose, the Court must determine, sometimes, the overriding purpose of the agreement and, at other times, most often, in fact, the essential prestation that was central to the agreement---As for interpretation, its purpose was instead to determine what meaning the parties seemed to have intended to give to a specific part of the agreement---Contract was "characterized" on the basis of its nature, by associating it with a category of nominate contracts (Arts. 1708 to 2643 of Civil Code of Québec) or with a specific class of contracts (Arts. 1378 to 1384 of Civil Code of Québec), but the term of the contract was not "characterized", as it instead depended on the interpretation of the contract's words---True that an extinctive term that was attached to all the obligations of a contract had the effect of terminating the contract in its entirety, however , the fact that such a term had an effect on the contract as a whole did not mean that the purpose of interpreting the term was as to identify the essential prestation or the purpose of the agreement---From such perspective, it was wrong to apply to the determination of the term of the contract the principles applicable to the characterization of its nature.

D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at Nos. 1727, 1729, 1733 & 2507; Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 7e éd. par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Que.: Yvon Blais, 2013. at No. 559 and M. Tancelin, Des obligations en droit mixte du Québec (7th ed. 2009) at No. 443 ref.

(e) Contract---

----Contract having perpetual effect---Scope---Express stipulation was not required in order to give effect to the term of a contract whose effects could be perpetual---Intention to possibly bind oneself in perpetuity could be inferred from the terms of the contract although there was no express stipulation to that effect---Perpetual renewal could be implicit and be found to exist on the basis of evidence of usage---Perpetual nature could be found to exist in certain hypothetical cases, including where the contract was one for a fixed term (for example, one year, five years), but subject to automatic renewal at the expiry of each term for an identical period, and it was impossible for either party to oppose the renewal.

D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at No. 2144 and BMW Canada inc. v. Automobiles Jalbert inc., 2006 QCCA 1068. para. 140 (CanLII) ref.

(f) Contract---

----Limitations on contractual freedom---'Public order'---Scope---Public order was one of the few limits on contractual freedom [in Quebec civil law (Art. 9 of Civil Code of Québec)]---Public order could be defined as the imposition of the social, moral, economic or political considerations of society on legal relationships---Although most of the principles of public order were codified, they may also be created by the courts, since the courts may raise any unwritten rule to the rank of a principle of public order where that rule was consistent with the fundamental values of the society at a particular point in its development---Variable, shifting or developing nature of the concept of public order, may, sometimes make it extremely difficult to arrive at a precise or exhaustive definition of what it covered, nevertheless, it must in every case be possible to tie the concept of public order to specific values or principles that might be violated by the contractual provisions at issue.

G. Goldstein and N. Mestiri, "La liberté contractuelle et ses limites", B. Moore, ed., Mélanges Jean Pineau (2003), 299, at p. 310; Goulet v. Transamerica Life Insurance Co. of Canada, 2002 SCC 21, [2002] 1 S.C.R. 719, at paras. 43 and 46 and Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17, [2003] 1 S.C.R. 178, at para. 52 ref.

Per Côté, J.

(g) Contract---

----Indeterminate contract---Scope---Contracts with a purportedly certain extinctive term were to be characterized as indeterminate where the realization of the term was dependent on the decision of only one of the parties.

J. Azéma, La durée des contrats successifs (1969), at No. 89; B. Starck, H. Roland and L. Boyer, Droit civil : les obligations, vol. 2, Contrat (6th ed. 1998), at para. 1308; Mestre, Jacques. "Obligations et contrats spéciaux: Obligations en général" (1993), 2 R.T.D. Civ. 343. at p. 356 and D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at No. 2045, fn. 21 and 23 ref.

(h) Contract---

----Contract having perpetual effect---Law was reluctant to infer perpetuity (to a contract) in the absence of the parties' express stipulation to that effect.

(i) Contract---

----Interpretation---Principles---For an interpretation to be necessary, the contract must contain an ambiguity---Ambiguity was present where the contract's wording would raise a doubt as to its meaning in the mind of a reasonable person---Mere fact that the parties tendered competing interpretations of a clause did not, by itself, give rise to an ambiguity.

Bisignano v. Système électronique Rayco ltée, 2014 QCCA 292, at para. 11 (CanLII); F. Gendron, L'interprétation des contrats (2nd ed. 2016), at p. 27 and J.L. Baudouin and P.-G. Jobin, Les obligations (7th ed. 2013), at No. 413 ref.

Miller Thomson, Montréal; LCM Attorneys Inc., Montréal and Robinson Sheppard Shapiro, Montréal for Appellants.

Jolicaeur Lacasse, Quebec for Respondents.

2017 S C M R 1851

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

ANDRUS WILSON---Appellant

Versus

RAMZI MAHMOUD ALHARAYERI---Respondent

Decided on 13th July, 2017.

(On appeal from the Court of Appeal for Quebec)

Company---

----Corporate Directors--- Oppressive conduct--- Personal liability---Principles---Criteria governing imposition of personal liability on corporate Directors---When a complainant moved the court for holding a corporate Director personally liable for his oppressive conduct, the court had broad discretion to "make any interim or final order it thinks fit" [section 241(3) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44]---Said remedy was an equitable remedy that sought to ensure fairness and it gave the court broad, equitable jurisdiction to enforce not just what was legal but what was fair---Courts considering claims for oppression should engage in fact-specific, contextual inquiries looking at business realities, not merely narrow legalities---Determining the personal liability of Director [under section 241(3)] required a two-pronged approach---First, the oppressive conduct (of the director) must be properly attributable to the Director because of his or her implication in the oppression; and second, the imposition of personal liability must be fit in all the circumstances---Four general principles should guide courts in fashioning a fit remedy against the oppressive conduct of the Director [under S. 241(3)]---First, the oppression remedy request must in itself be a fair way of dealing with the situation---Holding a Director personally liable may be fair where he or she had derived a personal benefit in the form of either an immediate financial advantage or increased control of the corporation, breached a personal duty or misused corporate power, or where a remedy against the corporation would unduly prejudice other security holders---Said factors merely represented indicia of fairness---Presence of a personal benefit and bad faith remained hallmarks of conduct attracting personal liability, but like the other indicia, they did not constitute necessary conditions---Fairness principle was ultimately unamenable to formulaic exposition and must be assessed in light of all the circumstances of a particular case---Second, any order should go no further than necessary to rectify the oppression---Third, any order may serve only to vindicate the reasonable expectations of security holders, creditors, Directors or officers in their capacity as corporate stakeholders---Oppression remedy protected only those expectations derived from an individual's status as a security holder, creditor, Director or officer, and it should not be used for purely tactical purposes---In particular, a complainant should not be permitted to jump the creditors' queue by seeking relief against a Director personally---Fourth, a court should consider the general corporate law context in exercising its remedial discretion---Director's liability could not be a surrogate for other forms of statutory or common law relief, particularly where it may be more fitting in the circumstances.

Budd v. Gentra Inc. (1998), 43 B.L.R. (2d) 27 (Ont. C.A.); Sidaplex-Plastic Suppliers Inc. v. Elta Group Inc. (1998), 40 O.R. (3d) 563; Naneff v. Con-Crete Holdings Ltd. (1995), 23 O.R. (3d) 481 (C.A.); Smith v. Ritchie, 2009 ABCA 373, at para. 20 (CanLII) and Stern v. Imasco Ltd. (1999), 1 B.L.R. (3d) 198 (Ont. S.C.J.) ref.

Terrence J. O'Sullivan, Paul Michell and Zain Naqi for Appellant.

Doughlas C. Mitchell and Emma Lambert for Respondent.

2017 S C M R 24

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Deputy, President, Lord Clarke, Lord Reed and Lord Toulson

ZURICH INSURANCE COMPANY plc---Appellant

Versus

HAYWARD---Respondent

Decided on 27th July, 2016.

(On appeal from [2015] EWCA Civ 327)

Per Lord Clarke, JSC; Lord Neuberger (President), Lady Hale (Deputy President), Lord Reed and Lord Toulson, JJSC agreeing

(a) Tort---

----Deceit---Fraudalent misrepresentation---Claim for deceit based upon an alleged fraudulent misrepresentation---Ingredients--For such a claim it must be shown that the defendant made a materially false representation which was intended to, and did, induce the representee to act to its detriment---As a matter of law, it was not necessary to prove that the representee believed that the representation was true--- However, that was not to say that the representee's state of mind may not be relevant to the issue of inducement; indeed, it may be very relevant e.g. if the representee did not believe that the representation was true, he may have serious difficulty in establishing that lie was induced to enter into the contract or that he had suffered loss as a result.

(b) Contract---

----Deceit, tort of---Fraudulent- misrepresentation---Rescission of a settlement agreement---Claim for deceit based upon alleged misrepresentation-Principles and pre-requisites---Employee claimed damages of about £419,000 against employer for injury at work--- Employer's insurer suspected that defendant was grossly misrepresenting (exaggerating) the extent of his injuries, but nevertheless settled the claim for about £135, 000 as in its opinion there was a real risk that a court would believe the defendant---Insurers subsequently received sufficient proof that defendant had not only exaggerated his injuries, but that he had fully recovered from his injuries by the time of the settlement---Insurer's brought action against the defendant for rescission of settlement agreement and to recover damages on the grounds of deceit and fraudulent misrepresentation--- Held, that where an insurer suspects fraud but had nevertheless chosen to settle a claim, it would be entitled to set aside the settlement under the tort of deceit, if it subsequently discovered proof that it was in fact fraudulent---In a claim for deceit based upon alleged misrepresentation it had to be shown that the defendant had made a materially false misrepresentation which had been intended to induce, and had induced, the representee to act to his detriment---As a matter of law it was not necessary to prove that the representee believed the misrepresentation to be true although the representee's state of mind might be relevant to the issue of inducement-Claimant alleging deceit (lid not have to show that he had believed the misrepresentation and his reasonable belief as to whether the misrepresentation was true was not the test---Representee might in the circumstances of a case have to settle the claim on the basis that he thought the misrepresentation would be believed by the judge---Fact that the insurers in the present case did not wholly believe the defendant did not preclude them from having been induced to reach a settlement by the defendant's misrepresentations---Qualified belief or disbelief did not rule out inducement, and it was sufficient to establish that the fact of the misrepresentation had been a material cause of the defrauded representee (insurer) entering into the settlement-Questions whether the insurers had been induced to enter into the settlement agreement and whether doing so had caused them loss were questions of fact which had been correctly decided in the insurers' favour---[Per Lord Toulson: Defendant's deceitful conduct was intended to influence the mind of the insurers, not necessarily by causing them to believe hint, but by causing them to value his litigation claim more highly than it was worth if the true facts had been disclosed, because the value of a claim for insurers' purposes was that which the court was likely put on it---Defendant achieved his dishonest purpose and thereby induced them to act to their detriment by paying almost ten times more than they would have paid but for his dishonesty]---Supreme Court (UK) set aside the settlement agreement and held that the defendant should be awarded a much reduced sum of £14, 720 to reflect the actual extent of his injuries---Appeal was allowed accordingly.

Claimant had suffered a workplace injury and brought proceedings against the employer. Employer admitted liability. Claimant exaggerated the extent of his injuries in order to achieve a higher settlement figure from his employer's insurer. Insurer had gathered sufficient undercover surveillance evidence to show that claimant had grossly and dishonestly exaggerated his injuries but feared that a Court might not take the same view and therefore settled the claim with the claimant for just under £135,000 so as to mitigate the risk that the claimant's story might be believed at trial. However, five and a half years after the settlement, insurer had gathered even more evidence - enough to show that claimant had not just exaggerated his injuries, but that he had fully recovered from his injuries by the time of the settlement. Insurer sought to set aside the settlement agreement on the ground that claimant's statements of case and accounts to medical experts were fraudulent misrepresentations. At issue was whether claimant's lies and deception had caused the settlement, whether insurer needed to have believed in the lies of the claimant and whether insurer should have earlier contested the case on the basis of their suspicions rather than settling.

In order to set aside a compromise on the basis of fraudulent misrepresentation, the defrauded representee (insurer) did not have to prove that the reason it was induced to settle was because it believed the misrepresentations made by clainiant to be true. It was sufficient that the misrepresentations were a material cause of defrauded representee (insurer) entering into the settlement.

In a claim for deceit based upon alleged misrepresentation the correct test was whether the party was influenced by the statements, which was a question of fact in each case. Person alleging deceit did not necessarily have to show that he believed the misrepresentation.

Insurer's belief, in the present case, as to the truthfulness of the defendant's misrepresentations was not a necessary ingredient of the test as an insurer may, instead, settle on the basis that the judge would believe the misrepresentations. It was sufficient to show that the fact of the misrepresentations was a material cause of insurer entering into the settlement. Only because an insurer did not wholly credit the fraudster or perhaps believed that a representation was false but nevertheless relied on, it, did not necessarily mean that it was not induced into making a settlement. Belief in the misrepresentation was not required and, in any event, it could not be fairly said that insurer had full knowledge of the facts.

In a typical transactional scenario, the fact that a party did not believe statements by the counterparty might be expected to lead readily to a conclusion that it had not in fact been influenced by them in deciding to proceed with the transaction. However, the situation was different in the case of settlement agreements, where a defendant did not have the option of simply walking away if it did not believe the claimant's statements. The question was not what view the party itself took, but what view the court may take in due course.

Where there was an intention to induce by means of fraud, it was very difficult to rebut the presumption that the innocent party had in fact been induced. Case law on this point was not entirely consistent as to what was required to rebut the presumption (which was an inference of fact rather than a presumption of law) - whether what must be proved was that the misrepresentation played "no part at all", or did not play a "determinative part", or did not play a "real and substantial part". It was not necessary to resolve the said matter, however, as the presumption was clearly not rebutted on the facts of the present case; it was clear that, if the insurer had known the true position, it would not have agreed the settlement it did.

Although the insurer had suspected exaggeration of the claim to some extent, it did not know the full extent of the fraud subsequently uncovered. Question then arose as to what the position would have been if the full extent of the fraud had been known at the time of settlement (whether or not pleaded).

Rule that where the defrauded representee knew that a representation was false, it could not succeed, should not be applied as a blanket rule, given that the question of inducement would be a factual question in each case. There could be circumstances in which a party might know that a representation was false but nevertheless be held to rely upon it e.g. in a staged road traffic "accident", where the innocent party might know for a fact that the claim was fraudulent but still have to take into account the risk that a court would believe the lie. In such a case, the innocent party may well establish inducement on the facts.

Defrauded representee had no duty to be careful, suspicious or diligent in research. Insurer, in the present case, did as much as it reasonably could to investigate the accuracy and ramifications of claimant's representations before entering into any settlement. Fact that the insurer had carried out its own investigations into the veracity of the claims did not preclude a finding that it had been induced by the representations. Qualified belief or disbelief did not rule out inducement, particularly where those investigations were never going to find out the evidence that subsequently came to light.

(c) Contract---

----Settlement agreement, recession of---Fraud---Mere suspicion that a claim was fraudulent would not necessarily preclude unravelling a settlement when fraud was subsequently established.

Per Lord Toulson

Defendant's deceitful conduct was intended to influence the mind of the insurers, not necessarily by causing them to believe him, but by causing them to value his litigation claim more highly than it was worth if the true facts had been disclosed, because the value of a claim for insurers' purposes was that which the court was likely put on it. Defendant achieved his dishonest purpose and thereby induced them to act to their detriment by paying almost then times more than they would have paid but for his dishonesty.

Per Lord Toulson, JSC: concurring with Lord Clarke, JSC.

(d) Fraud--

----Fraud, once proved, vitiated judgments, contracts and all transactions whatsoever.

Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712 ref.

(e) Tort--

----Deceit---Pre-requisites---To establish the tort of deceit it must be shown that the defendant dishonestly made a material false representation which was intended to, and did, induce the representee to act to its detriment---Elements essential for liability were the making of a materially false representation (the defendant's conduct element); the defendant's accompanying state of mind (the fault element); and the impact on the representee (the causation element)---Where liability was established, it remained for the claimant to establish the amount of any resulting loss (the quantum element).

(f) Tort---

----Deceit--- Pre-requisites--- Settlement agreement, recession of--- Reliance on the misrepresentation-Scope-Defrauded representee did not have to necessarily prove that it was induced into an settlement agreement because it believed that the misrepresentations were true--- Representor could make a false and fraudulent misrepresentation, with the intention of influencing the representee to act on it to its detriment, without the representee necessarily believing it to be true---Question as to 'whether defrauded representee had been induced/influenced to act to his detriment was a question of fact which went to the issue of causation---Where the representor succeeds in his object of influencing the representee to act on the representation to its detriment, there will be the concurrence of fraud and deceit in the representor and resulting damage to the representee---In principle, the representee should therefore be entitled to a remedy in deceit.

Patrick Limb QC and Jayne Adams QC (Instructed by DAC Beachcroft Claims Ltd) for Appellant.

Guy Sims (Instructed by Hewitsons LLP) for Respondent.

2017 S C M R 63

[Supreme Court of UK]

Present: Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Reed and Lord Toulson

R (ON THE APPLICATION OF INGENIOUS MEDIA HOLDINGS PLC and another)---Appellants

Versus

COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS---Respondents

Decided on 19th October, 2016.

(On appeal from: [2015] EWCA Civ 173)

(a) Confidentiality, principle of--

----Scope---Public bodies---Public bodies were not immune from the ordinary application of the duty of confidentiality---Where information of a personal or confidential nature was obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient would in general owe a duty to the person from whom it was received or to whom it related not to use it for other purposes---Such principle, nevertheless, could be overridden by explicit statutory provisions.

Marcel v Commissioner of Police of the Metropolis [1992] Ch. 225) ref.

(b) Confidentiality, principle of---

----Scope---Disclosure of a taxpayer's affairs to the press by the Revenue department---Breach of principle of confidentiality---Where information of a personal or confidential nature was obtained or received in the exercise of a legal power/furtherance of a public duty, the recipient would owe a duty to the person from whom the information was received or it related (in the present case, the taxpayer)---Information disclosed to the journalists in the present case by an official of the revenue department was information of a confidential nature, in respect of which the department owed a duty of confidentiality to the claimants/taxpayers under S. 18(1) of the Commissioners for Revenue and Customs Act 2005 (Act)---Such disclosure was not justified under the exception under S. 18(2)(a)(i) of the Act---Said exception only permitted disclosure to the extent reasonably necessary for the revenue department to fulfil its primary function---Revenue department's desire to foster good relations with the press, its desire to publicise its views on tax, and its belief that the journalists might have shared valuable information, did not justify the disclosure in the present case---Fact that the official did not anticipate his comments being reported was no justification for making them--- Appeal was allowed accordingly.

Official of revenue department gave an interview to a newspaper journalist about tax avoidance. Interview was agreed to be 'off the record' and it was understood that the official's comments would not be published. During the interview the official specifically discussed the issue of film schemes as a means of tax avoidance and mentioned "Mr P", the CEO of a media company, who had in the past devised and promoted film investment schemes to utilise certain tax relief which was available at the relevant time. In the interview, the revenue official stated that "Mr P" represented "a threat" and the film schemes had enabled investors to avoid at least £5 billion in tax. The comments by "Mr P" were published by the newspaper with the articles stating that the quotes came directly from a "senior Revenue official". "Mr P" and his media company brought a claim for breach of duty of confidentiality against revenue department on the basis that their tax affairs were confidential and should not have been disclosed to newspaper's journalists. Revenue department stated that the information disclosed in the interview was covered under the exception to duty of confidentiality provided under section 18(2)(a)(i) of the Commissioners for Revenue and Customs Act 2005 ("the Act"). Said subsection provided that the duty of confidentiality did not apply to a disclosure which "is made for the purposes of a function of the Revenue and Customs". Revenue department contended that the correct interpretation of the said exception was that the department could disclose information which in its view was necessary or expedient or incidental or conducive to or in connection with the exercise of the functions of the collection and management of revenue.

Revenue department owed a duty of confidentiality under section 18 of the Commissioners for Revenue and Customs Act 2005 ("the Act"). Section 18 provided that the "Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs". However, subsection (2)(a)(i) of section 18 stated that the duty does not apply to a disclosure which "is made for the purposes of a function of the Revenue and Customs". There were further listed exceptions to the duty in further subsections, such as disclosure made for the purposes of a criminal investigation.

Principle of the law of confidentiality provided that where information of a personal or confidential nature was obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient would in general owe a duty to the person from whom it was received or to whom it related not to use it for other purposes. Such principle could, nevertheless, be overridden by statutory provisions, such as those in the Act.

Statutory exception in section 18(2)(a)(i) was to be interpreted narrowly. To construe it in the wide way as contended for by revenue department would render a number of the other listed exceptions under the said section as otiose; and would allow words of the utmost vagueness to significantly erode the protection afforded by revenue department's duty of confidentiality. To construe the general exception under section 18(2)(a)(i) of the Act broadly as contended by the revenue department would be contrary to the principle of legality whereby fundamental rights could not be overridden by ambiguous words.

R v Secretary of State for the Home office, ex parte Simms [2000] 2 AC 115 ref.

General interpretation of the exception under section 18(2)(a)(i) of the Act which would authorise officials of revenue department to discuss its views about taxpayers with the press for some collateral purpose connected with its functions (such as developing its relationship with the press) could not have been the intention of Parliament when drafting the Act. If the discretion of revenue department was only limited by the rationality test, rather than the common law principles of confidentiality, the primary duty of confidentiality in section 18 of the Act would be rendered almost meaningless. Correct interpretation of the exception in section 18(2)(a)(i) of the Act was it permitted disclosure to the extent reasonably necessary for [revenue department] to fulfil its primary function.

Information disclosed by the official, in the present case, was confidential in nature and revenue department owed a duty of confidentiality under section 18 of the Act. Revenue department's desire to foster good relations with the press, its desire to publicise its views on tax avoidance schemes, and its belief that the journalists might have shared valuable information, did not justify the disclosure. Fact that the official did not anticipate his comments being reported was no justification for making them. Appeal was allowed accordingly.

(c) Interpretation of statutes---

----Fundamental rights---Fundamental rights could not be overridden by general or ambiguous words in a statute---In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual---More general the words in a statute, the harder it was likely to be to rebut such presumption.

R v Secretary of State for the Home office, ex parte Simms [2000] 2 AC 115 ref.

Hugh Tomlinson QC and Jessica Simor QC (Instructed by Olswang LLP) for Appellants.

James Eadie QC and David Pievsky (Instructed by HMRC Solicitors Office) for Respondents.

2017 S C M R 407

[Supreme Court of UK]

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed and Lord Toulson

PAULLEY---Appellant

Versus

FIRSTGROUP PLC---Respondent

Decided on 18th January, 2017

(On appeal from [2014] EWCA Civ 1573)

Per Lord Neuberger, President; Lord Reed and Lord Toulson, JJSC, agreeing; Lord Sumption, JSC agreeing albeit with reservations; Lady Hale, Deputy President, Lord Kerr and Lord Clarke, JJSC, also agreeing but partly dissenting on the issue of "awarding damages".

(a) Discrimination---

----Disabled person---Wheelchair user---Policy of bus company for wheelchair users---Legality---Claim for damages---Notice on bus referring to seats reserved for wheel chair users---Scope and enforcement---Steps to be taken by bus drivers to enforce policy for wheelchair users---Claimant, who was a wheelchair user was unable to board a bus because space allocated on the bus for wheelchair users was occupied by a non-wheelchair user who refused to move---Policy of bus company was that its drivers could merely request non-wheelchair user to vacate space reserved for wheelchair users---Questions as to whether bus company had breached its duty by not 'requiring' the non-wheelchair user to vacate the reserved space; whether bus company discriminated against the claimant, and whether claimant should be awarded damages---[Per Lord Neuberger:] Under S. 29 of the Equality Act, 2010, the bus company must not discriminate against a person requiring its services by not providing the person with the service, and it must make "reasonable adjustments" to avoid substantial disadvantage to disabled persons---Duty to provide 'reasonable adjustments' did not require as absolute rule/policy that any non-wheelchair user must vacate a wheelchair space or, get off a bus, or a qualified rule, that any non-wheelchair user must vacate a space if it was reasonable---Requiring the bus company to use more emphatic language in the notice was unreasonable as there was no real prospect that it would have made any difference and research suggested that polite notices were more successful---Nevertheless, it was not enough for the bus company to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the request was rejected---Where the driver concluded that a refusal was unreasonable, he should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances, such as rephrasing the request as a requirement or even a refusal to drive on for several minutes---Any approach adopted should however avoid confrontation---Award of damages to the claimant was not possible in the present case as there was no satisfactory basis upon which the court could, in fairness, conclude that there would have been a real prospect that an adjustment to the bus company's policy would have resulted in claimant not being placed in the disadvantage that he was---[Per Lord Toulson:] Bus company could take reasonable steps beyond simply asking the occupant to move---Where place reserved for wheelchair users was taken by someone who could readily and reasonably vacate it by moving to another available space, it must be open to the bus company to stipulate that the non-wheelchair user should do so---Driver could also wait at least for a time for the passenger to comply---Such policy might not succeed in every case, but such fact did not make it valueless---[Per Lord Sumption:] One must recognise that there were limits to what law could achieve in amending lawful but inconsiderate behaviour---Although there was no ideal solution to the present case but the approach adopted by the majority (Lord Neuberger and Lord Toulson) came as close to giving effect to the policy of legislation as a court legitimately could---[Per Lady Hale (partly dissenting)] Bus company could reasonably be expected to adjust its policy and do more than it did in the present case, which would have allowed the claimant to travel rather than wait for the next bus---Award of damages to the claimant in such circumstances was justified---[Per Lord Kerr (partly dissenting)] Notice on bus should have instructed rather than requested passengers to vacate a wheelchair space when it was required by a wheelchair user---If the bus company had made adjustments to its policy, and the driver had told the non-wheelchair user that she had to move, there was prospect that she would have moved, thus, it was unjust to deny damages to the claimant---[Per Lord Clarke (partly dissenting)] Company was in breach of duty owed to claimant in failing to take more steps than it did in response to his request to use the wheelchair space---Reasonable inference could be drawn from the facts that it was practicable for the non-wheelchair user to move to another part of the bus, had it been explained to her in clear terms that she must move---When the company had breached its duty under the Equality Act, 2010, it could not be just to deprive the claimant of damages awarded by the Trial Court.

Claimant, a permanent wheelchair user, wanted to board a bus operated by a subsidiary of the defendant but the designated wheelchair space (on the bus) was occupied by woman with a baby in a pushchair. The woman did not move the pushchair when asked by the driver following company policy and she said that the baby was asleep and the pushchair would not fold. The defendant's policy made the wheelchair space available on a "first come, first served" basis and said that the driver only had to request that the person get out of the space if it was required by a wheelchair user, but the driver did not have the power to compel passengers to move, being reliant on their goodwill. There was also a notice on the bus asking passengers occupying the wheelchair space to "please give up this space if needed for a wheelchair user". The driver took no further action meaning that claimant was unable to board the bus, which significantly delayed his travel plans. Claimant sued the defendant for unlawful discrimination on disability grounds, alleging that it had discriminated against him, contrary to sections 21 and 29 of the Equality Act 2010, by failing to make a number of reasonable adjustments to its policy concerning wheelchair access. Trial Court allowed the claim and awarded damages, finding that the defendant's policy placed the claimant at a substantial disadvantage within the meaning of section 20(3) of the Equality Act 2010 by comparison with non-disabled bus passengers and, in accordance with its duty under section 29(7) of the Act, there were reasonable adjustments which the defendant could have made which would have eliminated the disadvantage. The Court of Appeal allowed the defendants appeal and held, inter alia, that section 20(3) of the Equality Act 2010 did not require the defendant to go further than its current policy and require a non-wheelchair user to vacate a wheelchair space, and therefore the defendant had not been in breach of its duty under section 29(7) of the Act to make reasonable adjustments.

Present case concerned questions of what reasonable adjustments a bus company was required to make to accommodate disabled wheelchair users, and whether a bus driver should compel other passengers, disabled or non-disabled, to vacate a wheelchair space if it was required by a wheelchair user.

Per Lord Neuberger:

Under section 29 of the Equality Act, 2010, as a "public service provider", bus company must not discriminate against a person requiring its services by not providing the person with the service, and it must make "reasonable adjustments" to avoid substantial disadvantage to disabled persons.

An absolute rule that any non-wheelchair user must vacate the space reserved for wheel chair users would be unreasonable. There are many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space was needed by a wheelchair user. Even a qualified rule (i.e. that any non-wheelchair user must vacate if it was reasonable) implemented through mandatory enforcement would be likely to lead to confrontation at best and violence at worst with other passengers and delays. Further passengers were not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they failed to do so.

In order for the claimant to succeed in his claim, he must not only establish that the bus company should have made an adjustment to its policy, but also that, had that adjustment been made, there was at least a real prospect that it would have made a difference.

Bus company could not be criticised for not expressing the notice in more peremptory terms. Although politely, the notice did require, rather than merely request, a non-wheelchair user to vacate the space if it was needed by a wheelchair user. Without the word "please" it was a requirement, and the addition of the word "please" in the notice at best made it more polite and at worst softened the requirement. Legal liability ought not to depend on whether someone had chosen to use specially emphatic language in expressing its policy. Any suggestion that the notice on the bus should have made it clear that the priority of wheelchair users over the space "would be enforced" was not convincing.

Nonetheless, it was not enough for bus company to instruct its drivers simply to request non-wheelchair users to vacate the space, and do nothing further if the request was rejected. Allowance must be made for the fact that there will be a variety of different circumstances in which a non-wheelchair user refused to vacate a space which was needed by a wheelchair user. Thus, the appropriate approach of the driver could depend on (i) the reason for the refusal, including, in particular, the needs of the non-wheelchair user; (ii) the surrounding circumstances, including whether the bus was full or had vacant places, whether the bus was on time, and the frequency of the service; and (possibly) (iii) the character of the driver. Good practice was to have in place a policy to encourage drivers to go as far as they thought appropriate in the circumstances i.e. use their best endeavours to induce the recalcitrant passenger to reconsider his or her refusal to move. Where the driver concluded that the non-wheelchair user's refusal was unreasonable, it would be unjustifiable for a bus-operating company to have a policy which did not require some further step of the bus driver in any circumstances. In particular, where there was some other place on the bus to which a non-wheelchair user could move, a driver should be expected to rephrase any polite request as a requirement, and, if that did not work and especially if the bus was ahead of schedule, the driver could consider stopping the bus for a few minutes with a view to pressurising or shaming the recalcitrant non-wheelchair user to move.

There was no finding by the trial court that, if bus company had phrased the notice "Please give up this space for a wheelchair user" more peremptorily and/or required its drivers to be more forceful, the requirement of making "reasonable adjustments" to avoid substantial disadvantage to disabled persons would have been satisfied. There was therefore no satisfactory basis upon which the court could, in fairness, conclude that there would have been a real prospect that an adjustment to the bus company's policy would have resulted in claimant not being placed in the disadvantage that he was, and so an award of damages to the claimant was not possible.

Per Lord Toulson; agreeing with Lord Neuberger

There were reasonable steps which a bus company could take beyond simply asking the occupant to move. The driver could make it plain that it was a requirement. If the place reserved for wheelchair users was taken by someone who could readily and reasonably vacate it by moving to another available space, the object of the duty placed on the driver was to enable the wheelchair user to occupy it and in those circumstances it must be at least open to the bus company to stipulate that the non-wheelchair user who could readily and reasonably vacate it should do so. Unless the bus was running late, the driver could also wait at least for a time for the passenger to comply. The policy might not succeed in every case, but the fact that the policy might not work in every case did not make it valueless.

In the present case, there was no finding of fact by the trial court whether the lady with the child in a buggy could reasonably and readily have vacated the wheelchair space. Award of damages to the claimant, thus, could not be sustained in such circumstances.

Per Lord Sumption; agreeing albeit with reservations:

The ideal solution, if there was one, would be to change the law so as to create an obligation on the part of non-wheelchair users, enforceable in the same way as the rule against anti-social behaviour, to move unless the driver reasonably considered that they had a sufficient reason not to do so. In the absence of such a change, one must recognise that there were limits to what law could achieve in amending lawful but inconsiderate behaviour.

There could be difficulties in imposing on drivers a duty to "require" the non-wheelchair user to move and in some cases to stop the bus "for a few minutes", thereby inconveniencing every other passenger in order to shame the non-wheelchair user into doing something that the law did not require him to do. Since in the present case there was no ideal solution, but only more or less unsatisfactory ones, therefore, the approach adopted by the majority (Lord Neuberger and Lord Toulson) came as close to giving effect to the policy of legislation as a court legitimately could.

Per Lady Hale; dissenting in part:

Bus company could reasonably be expected to adjust its policy and do more than it did in the present case. It should have been made clear to passengers, and to their drivers, that wheelchair users had priority over anyone else in the occupation of the wheelchair space and that other passengers would be required, not merely requested, to move out of it if a wheelchair user needed it. With a proper system of notices, making the position plain, backed up with firm statements from the driver, everyone would know where they stood.

Most people do what they are told to do if they are told sufficiently clearly what it was that they were required to do. The possibility that some people would be disobedient should not deter the bus company from making it clear what the rules were and doing its best to persuade people to obey. There were many steps short of physically removing the person from the bus which could be taken, including delaying the departure of the bus until the rule was obeyed.

Had the bus company adjusted its policy and done more than it did, the claimant would have been able to travel rather than having to leave the bus and wait until the next one. That being so, it was unjust to deny damages to the claimant. [Minority view]

Per Lord Kerr; dissenting in part:

Wheelchair space on a bus was to be regarded as an area in which priority should be given to wheelchair users. Notice which instructed rather than requested passengers to vacate a wheelchair space when it was required by a wheelchair user was a reasonable adjustment to make in order to avoid the discrimination that the wheelchair user would otherwise suffer. It removed the element of choice on the part of the passenger occupying the space. They knew, and, importantly, knew in advance, that they would have to move. Some passengers may not like it but that was not the point. Such a notice, as well as eliminating any scope for debate, constituted a significant statement which accorded precisely with the Government's policy of providing comprehensive and enforceable civil rights for disabled people and achieving a fully accessible public transport system for them.

If the bus company had made adjustments to its policy, there was at least a real prospect that claimant would not have been prevented from travelling on the bus. If the young woman who refused to move had been told that she had to move and that the bus company's policy was that she must do so, there was a real prospect that she would have moved, thus, it was unjust to deny award of damages to the claimant. [Minority view]

Per Lord Clarke; dissenting in part:

Company was in breach of duty owed to claimant in failing to take more steps than it did in response to his request to use the wheelchair space in his wheelchair. Policy of bus company should have gone further than it did. If the pushcart/buggy could not be folded down, the bus company's policy should have been adjusted to make it clear that, if necessary to enable a wheelchair user to use the wheelchair space, the buggy user must get off the bus. Only in this way would the statutory policy of priority for wheelchair users be carried out.

If the bus company's policy had been more authoritative, and the lady had been told that she had to move and that she must do so, there was at least a real prospect that she would have moved. Reasonable inference could be drawn from the facts that it was practicable for her to move to another part of the bus. There was no evidence that she was faced with only two alternatives, namely staying where she was in the wheelchair space or leaving the bus. There was at least a real possibility that, if the position had been explained to her in clear terms, she would have moved elsewhere on the bus, even though it would have involved waking the child. In such circumstances, when the company had breached its duty under the Equality Act, 2010, it could not be just to deprive the claimant of damages awarded by the trial court. [Minority view]

Per Lord Sumption; agreeing with Lord Neuberger and Lord Toulson albeit with reservations

(b) Administration of justice---

----Law cannot enforce basic decency and courtesy, save insofar as they correspond to legal standards of behaviour.

Robin Allen QC and Catherine Casserley (Instructed by Unity Law) for Appellant.

Martin Chamberlain QC and Oliver Jones (Instructed by Burges Salmon LLP) for Respondent.

2017 S C M R 907

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption and Lord Hodge

LOWICK ROSE LLP (IN LIQUIDATION)---Appellant

Versus

SWYNSON LTD. and another---Respondents

Decided on 11th April, 2017.

(On appeal from [2015] EWCA Civ 629)

Per Lord Sumption; Lord Neuberger (President), Lord Mance, Lord Clarke and Lord Hodge, JJSC, agreeing.

(a) Damages---

----'Res inter alios acta' doctrine of---Scope---General rule was that loss which had been avoided was not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation---Exception to such general rule was collateral payments (res inter alios acta), which the law treated as not making good the claimant's loss---Critical factor was not the source of the benefit in a third party but its character---Collateral benefits were those whose receipt arose independently of the circumstances giving rise to the loss, thus a gift received by the claimant, even if occasioned by his loss, was regarded as independent of the loss because its gratuitous character meant that there was no causal relationship between them---Same was true of a benefit received by right from a third party in respect of the loss, but for which the claimant had given a consideration independent of the legal relationship with the defendant from which the loss arose.

Bradburn v Great Western Railway Co (1874-5) LR 10 Ex 1 and Parry v Cleaver [1970] AC 1 ref.

(b) Negligence---

----Professional negligence---'Res inter alios acta' doctrine of---Applicability---'Transferred loss, principle of---Applicability---Unjust enrichment, principle of---Applicability---Negligent advice given by a professional---Damages, quantum of---Claimant-company had lent a sum to the borrower company to buy a medical business---Defendants were accountants who carried out due diligence for claimant-company on the purchase and did so negligently---Subsequently the medical business collapsed and borrower-company defaulted on its loan---To improve claimant-company's balance sheet and for reasons of tax efficiency, owner of claimant-company entered into a re-finance arrangement and provided an interest-free loan to the borrower-company, which it used to discharge the loan to claimant-company, so that instead a loan was now owed to the owner of claimant-company---Issue for the court was whether quantum of damages to be awarded to the owner of claimant-company were to be reduced to reflect repayment of loan by borrower-company to claimant-company---[Per Lord Sumption, Lord Mance and Lord Neuberger (President)]---Payments made by owner of claimant-company to borrower-company (under the refinance arrangement) and in turn by the borrower company to the claimant-company to pay off the loans could not be recovered under the doctrine of 'res inter alios acta', as the same could not be classed as any kind of collateral payment since they were not independent of the circumstances giving rise to the loss---Firstly, such refinance arrangement/transaction discharged the very liability whose existence represented claimant-company's loss; secondly, the loan made by owner of claimant-company to the borrower-company and the earlier agreements of claimant-company to lend money to borrower-company were distinct transactions between different parties, each made for valuable consideration; and thirdly, the consequences of refinancing by owner of claimant-company could not be recoverable as the cost of mitigation, because the re-financing loan to borrower-company was not an act of claimant-company and was not attributable to accountants' breach of duty---Alternative argument of 'transferred loss' that claimant-company could sue for its owner's loss did not arise in the present case---'Transferred loss' only arose where the object of the transaction was to benefit a third party or a class of third parties and the anticipated effect of breach of a duty owed to the claimant was that loss would be caused to the third party---In the present case, however, it was not part of the accountants' engagement to benefit owner of claimant-company, and it was common ground that they owed the owner no duty---Regarding 'equitable subrogation' as a remedy for unjust enrichment against the accountants, the accountancy firm was not unjustly enriched by the owner's indirect repayment of the loan to claimant-company---Principle of unjust enrichment was essentially limited to cases where there was some defect in the subject transaction itself, but in the present case the loan from owner of claimant-company to the borrower-company had operated exactly as intended: he had obtained the security and covenant he anticipated and the loan to claimant-company was repaid---Neither the claimant-company nor its owner had any claim against the accountancy firm in relation to 'res inter alios acta', 'unjust enrichment' or 'transferred loss'---Appeal was allowed accordingly.

Claimant-company was controlled and beneficially owned by person 'M' (the owner of claimant-company). In 2006, claimant-company lent £15m to borrower-company to enable a management buy-out of a medical business. In advancing the loan, claimant-company relied on a due diligence report prepared by an accountancy firm. Shortly after the initial loan was made in 2007, the medical business faced serious financial difficulties and the owner of claimant-company caused claimant-company to make two further loans to borrower-company in July 2007 (£1.75m) and in June 2008 (£3m) in order to protect the original investment. At the same time, the owner of claimant-company acquired the majority beneficial ownership of borrower-company. In December 2008, owner of claimant-company, undertook a "refinancing arrangement" and provided borrower-company with £18 million to enable it to repay the 2006 and 2007 loans to claimant-company, leaving only the 2008 loan outstanding. Said exercise carried tax advantages for owner of claimant-company. Ultimately, the medical business collapsed and it was wound up, with the 2008 loan not being repaid to claimant-company or its owner. Claimant-company and its owner subsequently brought proceedings against the accountancy firm seeking to recover damages for losses resulting from the buyout and the making of all three loans in 2006, 2007 and 2008, despite having received the 2006 and 2007 loans. The argument for the accountancy firm was that it should be only liable to claimant-company for the 2008 loan since the 2006 and 2007 loans had been repaid by the borrower-company, thereby reducing claimant-company's loss to £3m.

Trial Judge awarded damages of £15m to the claimant-company after finding that the December 2008 refinancing was 'res inter alios acta', and that repayment of loan by borrower-company did not extinguish claimant-company's loss in respect of the 2006 and 2007 loans. Court of Appeal (by a majority) agreed with findings of the Trial Judge.

Per Lord Sumption, J:

Concept of distinct legal personality of companies was a fundamental feature of commercial law, but that had never stopped businessmen from treating their companies as indistinguishable as themselves. Method of structuring the 2008 refinance arrangement by owner of claimant-company whereby he later attempted to associate himself with claimant-company (as being one and the same or interchangeable), should be seen as a businessman's mistake.

The 2008 refinance arrangement made by owner of claimant-company to borrower-company and then by borrower-company to the claimant-company to pay off the 2006 and 2007 loans could not possibly be regarded as collateral payments pursuant to the doctrine of res inter alios acta. In the first place, the transaction discharged the very liability whose existence represented claimant-company's loss. Secondly, the money which owner of claimant-company lent to borrower-company in 2008 was not an indirect payment to claimant-company, even though it ultimately reached them, as the terms of the loan required. Re-finance agreement by owner of claimant-company to make that loan and the earlier agreements of claimant-company to lend money to borrower-company were distinct transactions between different parties, each of which was made for valuable consideration in the form of the respective covenants to repay. Thirdly, the consequences of the refinancing could not be recoverable as the cost of mitigation, because the loan to borrower-company was not an act of claimant-company and was not attributable to accountant's breach of duty.

In the present case the relevant duty was owed by the accountants to claimant-company but the loss had in the event been suffered by owner of claimant-company. Principle of 'transferred loss' could not be applied to the facts of the present case. The reason was that it was not part of the object of the engagement of accountancy firm or indeed of any other aspect of the 2006 transaction to benefit the owner of claimant-company. That was the main reason why no duty of care was owed to him. Loss incurred by owner of claimant-company arose out of the refinancing in 2008, which had nothing to do with accountants and did not arise out of their breach of duty.

Assuming that the accountancy firm was enriched at the expense of the owner of claimant-company, the owner's case was that enrichment of accountancy firm was unjust because he made a mistake in assuming that the refinance agreement in 2008 would not affect the claim he and/or claimant-company had against the accountancy firm. Purpose of the law of unjust enrichment was to correct normatively defective transfers of value by restoring the parties to their pre-transfer positions. Cases on the use of equitable subrogation to prevent or reverse unjust enrichment were all cases of defective transactions. They were defective in the sense that the claimant paid money on the basis of an expectation which failed. The 2008 refinancing arrangement in the present case was not a defective transaction. Owner of claimant-company got precisely what he intended to get, namely the discharge of borrower-company's debt to claimant-company, tax advantage, and a right to recover the new loan from borrower-company.

Although owner of claimant-company did not receive repayment of his loan, because borrower-company was (or became) insolvent and its assets were worth much less than the debt, but that was a commercial risk that he took with his eyes open, and it was not what enriched the accountancy firm. In these circumstances, subrogation was not being invoked for its proper purpose, namely to replicate some element of the transaction which was expected but failed. It was being invoked so as to enable owner of claimant-company to exercise for his own benefit the claims of claimant-company in respect of an unconnected breach of duty under a different transaction between different parties more than two years earlier. Accountancy firm was not unjustly enriched by provision of funds provided by owner of claimant-company to the borrower-company to repay claimant-company, with the result that the owner may not be subrogated to claimant-company's claims against the accountants.

Commissioners for HM Revenue and Customs v Investment Trust Companies (In Liquidation) [2017] UKSC 29 ref.

Per Lord Mance, J, agreeing:

Consequences of refinancing undertaken by owner of claimant-company could not be recoverable as the cost of mitigation, because the loan to borrower-company was not an act of claimant-company and was not attributable to accountancy firm's breach of duty. Payment made to borrower-company by the owner of claimant-company was not undertaken by or at the request of claimant-company. It was initiated by the owner in his personal capacity deciding that it would suit claimant-company and his own interests to procure repayment by borrower-company of its indebtedness to claimant-company. Claimant-company and its owner were distinct legal personalities, and the owner's conduct could not be attributed to the claimant-company.

Principle of 'transferred loss' was limited exception to the general rule that a claimant could recover only loss which he had himself suffered. Said principle did not arise in the present case because it was not part of the object of the engagement of accountancy firm to benefit owner of claimant-company. Claimant-company did not contract with the accountancy firm on behalf of or for the benefit of owner of claimant-company. Claimant-company itself suffered loss through being induced to support the management buyout by lending to borrower-company, but the loan was ultimately repaid by borrower-company. Present case was not a case where claimant-company had any performance interest other than being indemnified in respect of the loss which it incurred in lending moneys to support the management buyout. That performance interest has been satisfied. The fact that it was satisfied by the owner of claimant-company making moneys available to borrower-company to repay claimant-company did not bear on or expand claimant-company's performance interest.

Accountancy firm was indeed indirectly enriched by the discharge by borrower-company of the loan due to claimant-company, however the questions whether a benefit was obtained "at the expense of" the owner of claimant-company and whether it would be "unjust" for the accountancy firm to retain it were difficult to separate in the present case. Role of 'equitable subrogation' in the context of 'unjust enrichment' was to replicate as far as possible the element of the transaction whose absence made it defective. There was no normative or basic defect in the re-financing arrangement which owner of claimant-company made in the present case. Owner's loan to borrower-company and the latter's consequent discharge of claimant-company's loan were exactly as the owner specified and intended. They had indirect consequences, evidently overlooked by the owner or his advisers, for the claimant-company, for claimant-company's separate relationship with the accountancy firm, and so indirectly for both claimant-company and its owner. Any benefit which the accountancy firm had from the owner's mistake in making the refinancing arrangements was no more than an indirect and incidental consequence of those arrangements on claimant-company's separate and pre-existing relationship with the accountancy firm. This was too remote to be the basis for a claim that the accountancy firm had been unjustly enriched at the owner's expense, or for reversal of the consequences of owner's arrangements by treating him as having an interest which he never expected, in respect of a claim by claimant-company to recover from the accountants a loss otherwise reduced to nil by the refinancing arrangements he made. Owner of claimant-company had no right by way of unjust enrichment as against the accountancy firm or by way of subrogation in respect of any claim for damages that claimant-company would have had against accountants apart from borrower-company's discharge of its indebtedness to claimant-company.

Per Lord Neuberger (President), agreeing:

Owner of claimant-company did not advance the new loan under the refinance arrangement in order to mitigate any loss which claimant-company was suffering. New loan was advanced for commercial reasons, therefore, the issue revolved around avoidance of loss, not mitigation. In such circumstances consequences of refinancing could not be recovered under 'res inter alios acta'.

Principle of 'transferred loss' would not be applicable to the present case. First, present case could not be said to be a case of injury to an asset or property which came into the hands of owner of claimant-company, because the loss suffered by him was not the same as the loss which would have been suffered by claimant-company, if the new loan had not led to the original loan being paid. The losses may be very similar in nature but the owner of claimant-company had suffered loss in relation to the new loan whereas claimant-company would have suffered a loss in relation to the original loan. Secondly, at the time the accountancy firm was advising claimant-company, it was not reasonably foreseeable that claimant-company would have the original loan repaid through the medium of a fresh loan made to borrower-company by a third party.

Accountancy firm had undoubtedly been enriched in economic terms as a result of the discharge by borrower-company of the loan due to claimant-company. While the repayment of claimant-company's original loan could be said to have been at the expense of its owner because it was funded by his new loan, and while the accountancy firm was enriched, it would be incorrect to state that the accountancy firm was enriched at the owner's expense. Accountancy firm's enrichment was not sufficiently directly effected by advance of the new loan made by owner of claimant-company. In the context of an 'unjust enrichment' claim arising out of a transaction, there must, at least normally (and quite possibly always), be some defect in the transaction itself for the doctrine of unjust enrichment to come into play. In other words, for some reason, including but not limited to a mistake on his part, the claimant must be able to show that he did not get all that he expected or thought that he had bargained for. In the present case the refinancing arrangement undertaken by the owner of claimant-company was not a defective transaction as the owner got precisely what he thought he was getting from the transaction in question, namely repayment to claimant-company of the original loan, and a right to recover the new loan from the borrower-company.

Per Lord Sumption, J:

(c) Damages---

----'Transferred loss', principle of---Scope---Principle of transferred loss was a limited exception to the general rule that a claimant could recover only loss which he had himself suffered---Said exception applied where the known object of a transaction was to benefit a third party or a class of persons to which a third party belonged, and the anticipated effect of a breach of duty would be to cause loss to that third party---Principle of transferred loss was driven by legal necessity, therefore it was an essential feature of the principle that the recognition of a right in the contracting party to recover the third party's loss should be necessary to give effect to the object of the transaction and to avoid a "legal black hole", in which in the anticipated course of events the only party entitled to recover would be different from the only party which could be treated as suffering loss---Principle of transferred loss would not apply if the third party had a direct right of action for the same loss, on whatever basis.

Dunlop v Lambert (1839) 2 CI&F 626 ref.

(d) Unjust enrichment---

----'Equitable subrogation' as a remedy for unjust enrichment---Scope---Equitable subrogation was a remedy available to give effect to a proprietary right or in some cases to a cause of action---Subject to special defences, equitable subrogation served to prevent or reverse the unjust enrichment of the defendant at the plaintiff's expense---Subrogation did not restore the parties to their pre-transfer position; it effectively operated to specifically enforce a defeated expectation--- Role of equitable subrogation was to replicate as far as possible that element of the transaction whose absence made it defective, which is why subrogation could not be allowed to confer a greater benefit on the claimants than he had bargained for.

Burston Finance Ltd v Spierway Ltd (in liquidation) [1974] 1 WLR 1648, 1652; Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291, at para 36; Commissioners for HM Revenue and Customs v Investment Trust Companies (In Liquidation) [2017] UKSC 29 and Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221 ref.

Per Lord Mance, J:

(e) Damages---

----'Transferred loss', principle of---Scope---General principle was that a claimant in action for breach of contract could not recover damages in respect of loss caused by the breach to some third person not party to the contract---Exception to the said principle was where it was in the contemplation of the parties when the contract was made that the property, the subject of the contract and the breach, would be transferred to or occupied by a third party, who would in consequence suffer the loss arising from its breach---In such a situation, the claimant was seen as suing on behalf of and for the benefit of the injured third party and was bound to account accordingly.

Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and St Martins Property Corp Ltd v Sir Robert McAlpine Ltd ("St Martins") [1994] 1 AC 85; Darlington Borough Council v. Wiltshier Northern Ltd [1995] 1 WLR 68 and McAlpine Construction Ltd v Panatown Ltd ("Panatown") [2001] 1 AC 518 ref.

(f) Unjust enrichment---

----Pre-requisites---For a claim under unjust enrichment the basic questions to be examined by the courts were, whether the defendant had benefited or been enriched; whether the enrichment was at the expense of the claimant; whether the enrichment was unjust; and, whether there were any defences---Claimant seeking to recover in unjust enrichment had to satisfy the first three questions, and, if they were satisfied, it was then for the defendant to invoke the fourth question.

Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221, 227A-C and Commissioners for Her Majesty's Revenue and Customs v The Investment Trust Companies (In Liquidation) ("ITC") [2017] UKSC 29 ref.

Per Lord Neuberger (President):

(g) Damages---

----'Transferred loss', principle of---Scope---Principle of transferred loss applied where there was a contract between 'A' and 'B' relating to A's property which was subsequently acquired by 'C'---Said principle enabled 'A' to recover damages for B's breach of contract which injured the property, even though the loss flowing from that injury was suffered by 'C' and not by 'A'---Circumstances in which the principle of transferred loss could apply were where, firstly at the time of making the contract with 'A', 'B' would reasonably have anticipated that 'A' would transfer the property to a person such as 'C' and that that person would suffer loss if 'B' breached the contract, so that the contract could be seen as having been entered into by 'B' partly for C's benefit; and, secondly, there was nothing in the contract or the surrounding circumstances which negated the conclusion that the principle should apply---Principle of transferred loss was an anomalous principle bearing in mind the well-established conventional rules relating to recovery of damages for breach of contract, namely that, subject to the terms of the contract, scope of duty, foreseeability and mitigation, 'A' could only recover damages in respect of loss which 'A' suffered as a result of B's breach of contract---For such reason the principle of transferred loss should only apply in defined and limited circumstances.

Albacruz (Cargo Owners) v Albazero (Owners) [1977] AC 774, 847; Dunlop v Lambert (1839) 2 Cl & F 626 and Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 ref.

Mark Howard, QC, David Turner, QC and Nicole Sandells (Instructed by RPC LLP) for Appellant.

Hugh Sims, QC, Gerard McMeel and James Wibberley (Instructed by Gardner Leader LLP) for Respondents.

2017 S C M R 1116

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption and Lord Hodge

CAPITA INSURANCE SERVICES LIMITED---Appellant

Versus

WOOD---Respondent

Decided on 29th March, 2017.

(On appeal from [2015] EWCA Civ 839)

(a) Contract---

----Terms, interpretation of---'Objective meaning'---'Business common sense'---Scope---Court's task in interpreting a contractual term was to ascertain the objective meaning of the language which the parties had chosen to express their agreement---Such exercise was not a literalist exercise focused solely on a construing of the wording of a particular clause but the court had to consider the contract as a whole and, depending on its nature and formality and the quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to that objective meaning---Interpretation of a contract was a unitary exercise and, where there were rival meanings, the court could give weight to the implications of rival constructions by reaching a view as to which construction was more consistent with business common sense; but that, in striking a balance between the indications given by the language and the implications of the competing constructions, the court had to consider the quality of drafting of the clause and also to be alive to the possibility that one side might have agreed to something which, with hindsight, did not serve his interest---Similarly the court should not lose sight of the possibility that the provision might be a negotiated compromise or that the negotiators were unable to agree more precise terms---Unitary exercise of interpreting a contract involved a iterative process whereby each suggested interpretation was checked against the provisions of the contract and its commercial consequences were investigated.

Prenn v Simmonds [1971] 1 WLR 1381 (1383H-1385D); Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 (997); Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; The Interpretation of Contracts and the ICS decision Edin LR Vol 12,374-390; Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001[ 2 All ER (Comm) 299 paras 13 and 16 and In re Sigma Finance Corpn [2010] 1 All ER 571, para 10 ref.

(b) Contract---

----Terms, interpretation of---'Textualism' and 'Contextualism'---Scope---When interpreting any contract, textualism and contextualism could be used as tools to ascertain the objective meaning of the language which the parties had chosen to express their agreement, and the extent to which each tool would assist the court in its task would vary according to the circumstances of the particular agreements---Agreements which were complex and sophisticated because they had been negotiated and prepared with the assistance of skilled professionals might be successfully interpreted principally by textual analysis---Correct interpretation of other contracts, for example those which lacked clarity because of their informality, brevity or the absence of skilled professional assistance, or their text was not logical and coherent, might be achieved by a greater emphasis on considering their factual matrix and the purpose of similar provisions in contracts of the same type.

(c) Contract---

----Indemnity clause---Interpretation and construction---'Indemnity clause subject to a time limit, and triggered only in limited circumstances'---Buyer-company purchased the entire share capital in an insurance brokerage company ("the company") from the seller (defendant)---Agreement made between the parties contained an indemnity clause whereby the seller undertook to pay the buyer an amount equal to the amount required to indemnify the buyer against, inter alia, "all fines, compensation or remedial action or payments imposed on ... the company ... arising out of claims or complaints registered with" inter alia, the Financial Services Authority ("FSA") against the company---Shortly after the purchase the buyer carried out a review of the company which revealed that in many cases the company's telephone operators had misled customers to make a sale---Buyer was obliged to inform the Financial Services Authority, which in turn informed the buyer that customers had been treated unfairly and had suffered detriment---Buyer agreed to compensate the customers affected by the mis-selling---Subsequently buyer made a claim against the seller under the indemnity clause alleging that the company had suffered loss resulting from mis-selling of insurance products in the period prior to the completion of the sale of the company and that the contractual indemnity was not confined to loss arising out of customers' complaints---Seller defended the claim by contending that the circumstances fell outside the scope of indemnity clause as the requirement to compensate which had arisen was not as a result of a claim by the company's customers or a complaint by those customers to the Financial Services Authority or another public authority---Trial Judge construed the indemnity clause as requiring the seller to indemnify the buyer even though there had been no claim or complaint by a customer and accordingly gave judgment for the buyer---Court of Appeal construed the indemnity clause as being confined to losses arising out of customers' claims or complaints and accordingly allowed the seller's appeal---Held, that the indemnity clause was poorly drafted and its meaning was avoidably opaque, therefore it was necessary to adopt an iterative process in order to examine the clause both through a textual analysis of the words in the context of the contract as a whole, and to consider whether the wider relevant factual matrix could provide guidance as to its meaning in light of the commercial effect of rival interpretations---Careful examination of the contractual language identified the circumstances which would trigger the clause---Buyer's suggested construction of the indemnity clause was not correct because it would have the effect that the clause would fail to specify against whom the relevant actions, proceedings and claims could be made; that there must be a limit on who such persons could be as it would be absurd for the buyer to have a claim against the seller for indemnity resulting from any mis-selling on its part before the completion of the sale of the company---Contractual context was also significant in the present case---Mis-selling which the indemnity clause addressed was also covered by the warranties in the Schedule to the agreement between the parties---Scope of indemnity clause, breach of which gave rise to a liability unlimited in time, must be assessed in the context of the detailed and time-limited warranties in the Schedule to the agreement---Buyer had two years after completing the purchase to make a claim under the Schedule covering warranties, which was not an unreasonable time scale---Two years' time provided under the warranties was not an unreasonably short period of time in which to conduct an internal review for any relevant mis-selling/regulatory breaches in order to bring a claim under the warranties; that it was not contrary to business common sense for parties to agree wide-ranging warranties, which were subject to a time limit, and in addition to agree a further indemnity, which was not subject to any such limit but was triggered only in limited circumstances---While the agreement may have become a bad bargain for the buyer, given their failure to bring a claim in time under the warranties, it was not the court's role to construe the indemnity in a way that improved their bargain---Court of Appeal was correct on the meaning of the indemnity clause---Appeal was dismissed in circumstances.

Edward Cumming (instructed by Enyo Law LLP) for Appellant.

Andrew Twigger, QC (instructed by Birketts LLP) for Respondent.

2017 S C M R 1605

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Reed

KHUJA---Appellant

Versus

TIMES NEWSPAPERS LIMITED and others---Respondents

Decided on 19th July, 2017.

(On appeal from [2014] EWCA Civ 1132)

Per Lord Sumption, JSC; Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke and Lord Reed, JJSC agreeing; Lord Kerr and Lord Wilson, JJSC, dissenting.

(a) Fundamental Rights---

----Right to private and family life---Scope---Open justice, principle of---Scope---Media reporting of judicial proceedings---Confidential information disclosing identity of an accused-claimant---Injunction---Balance between claimant's right to private and family life and right of media to freedom of expression and public interest in open justice---Several accused persons were arrested on suspicion of serious offences of child abuse---Claimant , who was one of the accused, was arrested simply because one of the victims had told the police that she had been abused by a man with the same, very common, first name as the claimant---Claimant was subsequently released on bail---Other accused persons were charged and their trial was conducted throughout in open court, whereas, the claimant, who was neither a witness nor a party, was protected by the trial judge's order (under the Contempt of Court Act 1981) prohibiting any disclosure which might identify him as the subject of pending criminal proceedings until he was charged---Trial attracted considerable media attention and two newspapers, wishing to publish information identifying the claimant as a person suspected of involvement in the subject matter of the police investigation who had been arrested, bailed and then released from arrest, unsuccessfully sought the discharge of the non-disclosure order---Majority of those tried were convicted, while, the claimant, who could not be identified by the victim during an identification parade, was released from arrest without charge---Although claimant's case was kept under review there was no reason to believe that he would ever be charged with an offence---Newspapers again applied to the trial judge to lift the non-disclosure order on the ground that there were no longer pending or imminent proceedings against the claimant which could be prejudiced by publication---Claimant immediately applied to the High Court for an interim injunction restraining publication, on the basis that it was necessary to protect him against the misuse of private information and the infringement of his right to private and family life [protected by Art. 8 of the European Convention on Human Rights (ECHR)]---Resisting the application the newspapers indicated that they wished to focus on the position of persons not party to proceedings against whom allegations had been made in the proceedings, the extent of the protection given to those facing pending criminal proceedings and the challenges of reporting criminal proceedings where such issues arose---High Court, having balanced the claimant's rights (under Art. 8 of ECHR) against the interests of freedom of expression and open justice, rejected the claimant's application for an injunction---Court of Appeal affirmed the High Court's decision---Legality---[Per Lord Sumption] English courts, with limited exceptions, administered justice in public at hearings which might be attended by members of the public and reported by the press---Press reporting of legal proceedings was an inseparable extension of open justice whereby the press served as the eyes and ears of the public who were entitled to attend---Principle of open justice was not absolute and permissible press reporting of public legal proceedings was limited by the law of contempt, the law of defamation and the law protecting the European Convention on Human Rights (ECHR)---Right to respect for private and family life (under ECHR) was given effective recognition in a qualified common law right to privacy where the person concerned had a reasonable expectation of privacy---Such a right had to be balanced against the right to freedom of expression (protected by Art. 10 of ECHR)---Exercise of such a balance was fact-specific, neither right being in principle stronger than the other---In deciding which right should prevail, regard was to be had to their comparative importance in the particular circumstances and to an assessment of the proportionality of the respective interference which the grant or refusal of the injunction would represent---In the present case the High Court in evaluating the strength of the rival considerations in respect of the claimant's right to respect for private and family life (Art. 8 of ECHR) and the newspapers' interests under the right to freedom of expression (Art. 10 of ECHR) had correctly not applied a presumption that members of the public equated suspicion with guilt to consideration of the effect of the claimant's arrest without charge---Claimant could not have had any expectation of privacy in respect of the matters discussed at a trial held in open court---Impact on the claimant's family life was indirect and incidental; neither the claimant nor any of his family had participated at the trial and nothing had been said there which related to his family---Sexual abuse of children was a matter of great public concern and the processes of investigation and prosecution were matters of legitimate public interest---Claimant's identity was not a peripheral or irrelevant feature of the story, therefore, the public interest extended to publication of his name, and accordingly, the pre-emptive injunction sought by the claimant was inappropriate and the High Court and the Court of Appeal had rightly refused his application---[Per Lord Kerr and Lord Wilson (Minority view); High Court had erred in balancing the strength of the rival considerations in respect of the claimant's right to respect for private and family life and the newspapers' interests under the right to freedom of expression---Majority view in the present case had incorrectly stated a legal presumption that courts should act on the basis that most people believed that someone charged with an offence, and still more someone not charged with an offence but simply arrested on suspicion of it, was innocent until proved guilty---No evidence or authority was offered to support such a presumption---Perusal of decisions from other jurisdictions showed that the privacy rights of those suspected or accused, but not convicted, of grave crimes were not undermined by any such presumption---Under Art. 8 of ECHR (respect for private and family life), it was likely that the claimant would have established his right to an injunction at full trial]---Appeal was dismissed accordingly.

Scott v Scott [1913] AC 417; Edmonton Journal v Alberta (Attorney General) [1989] 2 SCR 1326; Campbell v MGN Ltd [2004] 2 AC 457, HL(E); A v British Broadcasting Corpn (Secretary of State for the Home Department intervening) [2015] AC 588, SC (Sc); In re Guardian News and Media Ltd [2010] 2 AC 697, SC(E); BG v The Queen in Right of The Province of British Columbia (2002) BCSC 1417; R v Henry (2009) BCCA 86 and Von Hannover v Germany (2004) 40 EHRR 1 ref.

(b) Fundamental Rights---

----Right to private and family life---Scope---Media reporting of judicial proceedings---Confidential information in relation to an accused-claimant---Pre-emptive injunction---Courts could grant a pre-emptive injunction in a case to prevent the media from publication of information, where the information was private or there was no sufficiently substantial public interest in publication---Such cases, however, would be rare in relation to the reporting of public court proceedings.

(c) Fundamental Rights---

----Right to private and family life---Scope---Media reporting of judicial proceedings---Confidential information in relation to an accused-claimant---Injunction---Policy which permitted media reporting of judicial proceedings did not depend on the person adversely affected by the publicity being a participant in the proceedings; it depended on, firstly, the right of the public to be informed about a significant public act of the state, and secondly, the law's recognition that, within the limits imposed by the law of defamation, the way in which the story was presented was a matter of editorial judgment, in which the desire to increase the interest of the story by giving it a human face was a legitimate consideration.

Manuel Barca QC, Miss Hannah Ready (instructed by Collyer Bristow LLP) for Appellant.

Gavin Millar QC, Adam Wolanski (instructed by Times Newspapers Limited Legal Department) for Respondents Nos. 1 and 2.

Gavin Millar QC, Adam Wolanski (instructed by Newquest Media Group Ltd Legal Department) for Respondents Nos. 3 and 4.

2017 S C M R 1675

[Supreme Court of UK]

Present: Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge

ONUR AIR TASIMACILIK AS---Appellant

Versus

GOLDTRAIL TRAVEL LIMITED (IN LIQUIDATION)---Respondent

Decided on 2nd August, 2017.

(On appeal from [2016] EWCA Civ 20)

Per Lord Wilson, JSC; Lord Neuberger (President) and Lord Hodge, JJSC agreeing; Lord Clarke and Lord Carnwath, JJSC, dissenting.

Appeal---

----Permission to appeal---Conditional permission---Court imposing conditions for continuation of appeal---Payment of judgment sum in court---Principles---Right to fair trial---Scope---Company as a separate legal entity from its owner (controlling shareholder)---Scope---Respondent-company was awarded damages at trial---Appellant-company sought to appeal the award---Respondent made an application [under then R. 52.9(1)(c) of the Civil Procedure Rules (UK)] requesting that the court should impose on the appellant a number of conditions for the continuation of its appeal; one requested condition was that the appellant should pay into court the judgment sum which Trial Court had awarded to the respondent, on the basis that the appellant was likely to have no other assets even temporarily in the jurisdiction (of England and Wales)---Appellate court agreeing with the respondent imposed said condition for the continuation of the appeal---Appellant disputed said condition but did not claim that it would stifle the appeal---Subsequently the judgment sum was not paid into court, and the respondent applied for the appeal to be dismissed, while the appellant applied for discharge of the condition on the ground that payment of sum was now beyond its means and its continuation would stifle its appeal---Appellate court held that the appeal should be dismissed on the grounds that, in exceptional circumstances, the ability of a third party to provide funds - in the present case the appellant's wealthy owner - could be taken into account in assessing the likelihood that a company could make a payment into court; that the appellant's owner had decided not to fund the payment, and that the appellant had not established that the condition for payment would stifle its appeal---Legality---[Per Lord Wilson (Majority view); Stifling an appeal was to prevent an appellant from bringing it or continuing it---When an appellant had permission to bring an appeal, it was wrong to impose a condition which had the effect of preventing him from bringing it or continuing it---For the purposes of right to a fair trial [Art. 6 of the European Convention on Human Rights] there would seldom be a 'fair hearing' if a court which had permitted a litigant to bring an appeal then, by indirect means, did not permit him to bring it---Appellant must establish on the balance of probabilities that a proposed condition would stifle the continuation of its appeal---Courts could proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed---Even if an appellant appeared to have no realisable assets, a condition for payment would not stifle its appeal if it could raise the sum, however, the court must be cautious in respect of a suggestion that a corporate appellant could raise money from its controlling shareholder/owner---Owner's (shareholder's) distinct legal personality must remain in the forefront---Question should never be if the shareholder/owner could raise the money, the question should always be, could the company raise the money---Key question was whether a third party would, rather than could, pay the money in court---Criterion which should be applied in the present case was whether the appellant-company had established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition---Where a company and/or its owner denied that the necessary funds would be made available to the company, the court should not take such assertion at face value; it should judge the probable availability of the funds by reference to the underlying realities of the company's financial position, and by reference to all aspects of its relationship with its owner, including, the extent to which he was directing (and had directed) its affairs and was supporting (and had supported) it in financial terms---Appellate Court had not applied the correct criterion at the time of dismissing the appeal and instead followed the "misconception" that in exceptional circumstances an order for a payment into court could be justified by whether another person probably could advance the necessary funds, irrespective of whether he probably would do so---Supreme Court remitted the application back to the Appellate court to determine the appellant's application for discharge of the condition by reference to the correct criterion]---[Per Lord Clarke, dissenting (Minority view); Where a company did not have resources of its own and the issue was whether it had access to the resources of others, the question was whether the company would (not could) have had access to the resources---Onus that it would not was on the company concerned---On the facts of the present case, the question was whether appellant had shown on the balance of probabilities that it did not have access to the relevant resources---On the basis that the only resources available to appellant were through its owner, the question was whether, on the balance of probabilities he would have provided the funds---No direct evidence was provided by the appellant's owner on the question of whether he would have declined to provide funds---Evidence available on record fell far short of establishing that the condition would stifle the appeal]---[Per Lord Carnwath, dissenting (Minority view); No direct evidence was provided by the owner of appellant-company on the question of whether he would have declined to provide funds---Only relevant evidence was that of appellant's Chief Financial Officer who stated that the owner would contemplate making further loans to the appellant, but only in 'exceptional circumstances' to enable it to make commercial payments necessary to keep it in business---No explanation was provided as to why the owner did not regard the present case as sufficiently 'exceptional', which was why the appellant fell far short of proving, on the balance of probabilities, that the condition would in fact stifle the appeal]---Appeal was allowed accordingly.

Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2002] CP Rep 21, paras 41, 43, CA and Société Générale SA v Saad Trading, Contracting and Financial Services Co [2012] EWCA Civ 695, paras 54-55, CA disapproved.

Michael Gibbon QC and Ms Hannah Ilett (instructed by Druces LLP) for Appellant.

Robert Miles QC and Hillary Stonefrost (instructed by Filedfisher LLP) for Respondent.

2017 S C M R 1887

[Supreme Court of UK]

Present: Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes

R (on the application of UNISON)---Appellant

Versus

LORD CHANCELLOR---Respondent

Decided on 26th July, 2017.

(On appeal from [2015] EWCA Civ 935)

Per Lord Reed, JSC; Lord Neuberger (President), Lady Hale (Deputy President) Lord Mance, Lord Kerr, Lord Wilson and Lord Hughes, JJSC, agreeing

(a) Access to justice, right of---

----Scope--- Proceedings before tribunals--- Fees, payment of---Imposition of fees for access to (employment) tribunals and appeal tribunal---Whether such fees breached (common law) right of access to justice---Prior to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 ("the Fees Order"), a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees---After the 'Fees Order' came into force, claims and appeals in the tribunals and appellate tribunal could only be commenced and continued on payment of fees, except where an individual applied and qualified for a remission---Objectives of the 'Fees Order' were to transfer the cost burden from taxpayers to users of the tribunals; to deter unmeritorious claims, and to encourage earlier settlement---Appellant-trade union sought judicial review of the decision to introduce fees, on the grounds that making of the 'Fees Order' was not a lawful exercise because the prescribed fees interfered unjustifiably with the right of access to justice (under common law), and frustrated the operation of Parliamentary legislation granting employment rights---High Court and Court of Appeal dismissed the trade union's claim; held, that the constitutional right of access to justice was inherent in the rule of law and ensured that rights created by Parliament and interpreted by courts and tribunals were applied and enforced---Tribunals were not merely the providers of a service which was only of value to users who brought claims before them---Right of access to justice was to be understood in a broader social context as establishing principles of general importance and resolving questions of genuine uncertainty in interpreting legislation---Value to society of such access extended to the knowledge that rights would be enforced and that remedies existed where obligations were not met---In particular, the possibility of claims being brought by employees whose rights were infringed had to exist if employment relationships were to be based on respect for such rights---Furthermore negotiation and mediation could only work fairly in the context of the awareness of those involved that a fair and just system of adjudication was available---Right of access to justice, administered promptly and fairly, had long been recognised and could only be curtailed by clear and express statutory words---Any hindrance or impediment by the executive in such regard required clear Parliamentary authorisation and a statutory power authorising any intrusion was to be interpreted as doing so only to the extent reasonably necessary to fulfil the particular objective in question---Question as to whether any fees effectively prevented access to justice must be decided according to the likely impact of the fees on behaviour in the real world---Fees must be affordable not in a theoretical sense, but in the sense that they could reasonably be afforded---Where households on low to middle incomes could only afford fees by forgoing an acceptable standard of living, the fees could not be regarded as affordable---Even where fees were affordable, they prevented access to justice where they rendered it futile or irrational to bring a claim, for example where in claims for modest or no financial awards no sensible claimant would bring a claim unless he could be virtually certain that he would succeed; that the award would include recovery of fees, and that the award would be satisfied in full---'Fees Order' in the present case would be unlawful if there was a real risk that persons would effectively be prevented from having access to justice, or if the degree of intrusion into access to justice was greater than was justified by the purposes of the 'Fees Order'---Although the stated purposes of the 'Fees Order' were legitimate aims, it had not been shown that the 'Fees Order' was the least intrusive means of achieving those aims---Further evidence showed that the effect of the 'Fees Order' had been a dramatic and persistent fall in the number of claims brought in the employment tribunals with a greater fall in the lower value cases and of claims in which a financial remedy was not sought, and that recourse to the remission scheme had been ineffective---Accordingly, in so far as the 'Fees Order' had the practical effect of making it unaffordable for persons to exercise rights conferred on them by statute, or of rendering the bringing of claims to enforce such rights a futile and irrational exercise, it must be regarded as rendering those rights nugatory---Employment Tribunals and Employment Appeal Tribunal Fees Order, 2013 was unlawful as it prevented access to justice---Supreme Court (UK) declared the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 to be unlawful ab initio and quashed the same.

Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, HL(E); Attorney General v Times Newspapers Ltd [1974] AC 273, HL(E); Raymond v Honey [1983] 1 AC 1, HL(E); R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, HL(E) and R v Secretary of State for Social Services, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, CA ref.

(b) Access to justice---

----Effectiveness, principle of---Scope---Effective judicial protection, principle of---Scope---Imposition of fees for access to (employment) tribunals and appeal tribunal---Whether such fees breached 'principle of effectiveness' and the 'principle of effective judicial protection' (recognized under European Union law)---Prior to the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 ("the Fees Order"), a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees---After the 'Fees Order' came into force , claims and appeals in the tribunals and appellate tribunal could only be commenced and continued on payment of fees, except where an individual applied and qualified for a remission; held, that 'principle of effectiveness' and the 'principle of effective judicial protection' were recognized as general principles (of European Union) law---Proper administration of justice might justify imposition of a financial restriction, such as payment of fees, on access to a remedy, however, the restriction had to retain a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved---Proportionality required the fees charged to be proportionate in amount to the sums being claimed in the proceedings---Ability of a person to pay fees was not determinative of their proportionality: it was merely one among a number of relevant factors---Amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction had been imposed, were factors which were material in determining whether or not a person enjoyed the right of access to a court---Financial restrictions on access to a court which were unrelated to the merits of a claim or its prospects of success should be subject to particularly rigorous scrutiny by the courts---In relation to the phase of the proceedings at which the restriction had been imposed, the court ought to regard it as significant if non-payment of a fee may result in a claim's never being examined on its merits---Since the fees imposed under the 'Fees Order' were in practice unaffordable by some people and were so high as to prevent persons who could afford them from pursuing small or non-monetary claims, the 'Fees Order' imposed limitations on the exercise of (European Union) rights which were disproportionate and therefore unlawful under the (European Union) law---'Fees Order' was also unlawful because it contravened the (European Union) law guarantee of an effective remedy before a tribunal; it imposed disproportionate limitations on the enforcement of (European Union) employment rights---Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 was unlawful under the (European Union) law because it prevented access to justice---Supreme Court (UK) declared the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 to be unlawful ab initio and quashed the same.

Impact v Minister for Agriculture and Food (Case C-268/06) [2008] ECR I-2483, para 46 and SC Star Storage SA v Institutul National de Cercetare-DezvolareinInformatica (Joined Cases C-439/14 and C-488/14) EU:C:2016:688, ECJ ref.

Per Lady Hale (Deputy President);Lord Neuberger (President), Lord Mance, Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes, JJSC, agreeing

(c) Discrimination---

----'Indirect discrimination'---Imposition of fees for access to (employment) tribunals and appeal tribunal---Fee tiers---Higher fee imposed for claims relating to unfair dismissal, equal pay and discrimination claims---Whether higher fee tier discriminated unlawfully against women and other protected groups---Prior to the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 ("the Fees Order"), a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees---After the 'Fees Order' came into force, claims and appeals in the tribunals and appellate tribunal could only be commenced and continued on payment of fees, except where an individual applied and qualified for a remission---Amount of fee depended on whether the claim was classified as "type A" or "type B"---Type A claims were specified, and generally required little or no pre-hearing work and very short hearings, while for type B claims, which including unfair dismissal, equal pay and discrimination claims, higher fees had to be paid; held, that the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 was indirectly discriminatory (contrary to S. 19 of the Equality Act 2010), since charging higher fees for type B claims had not been shown to be a proportionate means of achieving the stated aims of the fees regime---No correlation was found between the higher fee charged for 'type B' claims and the merits of the case or the conduct of the proceedings by the claimant or the incentives to good litigation and settlement behaviour on each side---Type B claimant with a good case was just as likely to be deterred from bringing it by the higher fee as was the claimant with a bad case---Furthermore, it was not shown that the higher fee charged for 'type B' claims was more effective in transferring the cost of the service from taxpayers to users---Alternatively, charging higher fees for discrimination claims was indirectly discriminatory against women and people with protected characteristics, who brought the majority of such claims---Supreme Court (UK) declared the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 to be unlawful ab initio and quashed the same.

Dinah Rose QC, Karon Monaghan QC, Ian Steele and Matthew Purchase (instructed by UNISON Legal Services) for Appellant.

David Barr QC and Victoria Wakefield (instructed by The Government Legal Department) for Respondent.

Michael Ford QC, Mark Whitcombe, Spencer Keen (instructed by Equality and Human Rights Commission) for Intervener Equality and Human Rights Commission.

(Written submissions only) Aidan O'Neill QC (instructed by Dalfour and Manson) for Intervener Independent Workers Union of Great Britain.

2017 S C M R 1489

[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

CHARLES S. TURNER, ET AL and another---Petitioners

Versus

UNITED STATES---Respondent

Decided on 22nd June, 2017.

(On writ of Certiorari to the District of Columbia Court of Appeals)

Per Breyer, J; Roberts, C.J., Kennedy, Thomas, Alito and Sotomayor, JJ agreeing; Kagan and Ginsburg, JJ., dissenting.

(a) Criminal trial---

----Fair trial and due process---Exculpatory evidence not disclosed by the prosecution---Conviction, setting aside of---Brady v. Maryland, 373 U.S. 83 standard---Scope---Question as to whether failure of prosecution to disclose certain exculpatory evidence mandated that the defendants' convictions must be vacated---Accused and several co-accused persons were charged with kidnapping, robbery and murder---Body of the victim was discovered in an alley---Police were unable to recover physical evidence that would identify the perpetrators, and the medical examiner was unable to determine how many people were involved in the crime---After investigating and conducting several interviews, the police developed a theory that the victim had been assaulted and killed by a large group of accused persons who had originally set out to rob her---Total of thirteen (13) accused persons were initially indicted and two of them, 'A' and 'B' pleaded guilty and agreed to testify for the prosecution---Accused and co-accused persons put forth alibi defences, but some of their alibis conflicted with each other---Jury found the accused and co-accused persons guilty, and their convictions were affirmed on appeal---Nearly twenty-five (25) years later, accused and co-accused persons moved the court to have their sentences vacated and claimed that they had not received fair trials because the government (prosecution) had withheld certain exculpatory evidence in violation of standards of materiality required under the U.S. Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, which established that it was a violation of due process for the prosecution to suppress evidence favourable to the defence that was material to either guilt or punishment---Accused and co-accused persons argued that the withheld evidence included the identity of a man seen running into the alley after the murder and stopping near the garage where victim's body had already been found; the statement of a passer-by who claimed to hear groans coming from a small closed garage, suggesting it was a single attacker; and evidence tending to discredit some of the prosecution witnesses---Accused and co-accused persons further argued that had they known about the withheld evidence, they could have challenged the prosecution's basic group attack theory by raising an alternative theory, namely, that a single perpetrator (or two at most) had attacked the victim---Trial court denied the motion, and the Appellate Court affirmed because accused and co-accused persons had not shown a reasonable probability that the outcome of their trials would have been different had the government (prosecution) disclosed the evidence in question; [Per Breyer, J.], held, that under standards of materiality required under Brady v. Maryland, 373 U.S. 83, the government (prosecution) violated a defendant's due process rights if it withheld evidence that was favourable to the defence and material to guilt or punishment---Evidence was material for the purpose of the Brady analysis when there was a reasonable probability that, had the evidence been disclosed, the proceeding would have had a different outcome---Reasonable probability of a different result was one in which the suppressed evidence undermined confidence in the outcome of the trial---In making such determination, the court evaluated the withheld evidence in the context of the entire record---Burden was on the defendant to show that the suppression of the evidence in question prejudiced the trial such that it undermined confidence in the outcome---In the present case, considering the suppressed evidence in the context of the entire record, said evidence was not sufficient to undermine confidence in the outcome and therefore did not meet the standard for materiality under Brady v. Maryland, 373 U.S. 83---Group attack was the very cornerstone of the prosecution's case, and virtually every witness to the crime agreed that victim was killed by a large group of perpetrators---None of the accused persons testified, nor did any of them try, through witnesses or other evidence, to rebut the prosecution witnesses' claim that the victim was killed in a group attack; rather, each accused persons pursued what was essentially a "not me, may be them" defence, namely, that he was not part of the group that attacked the victim---On the facts of the case it was not reasonably probable that the withheld evidence could have led to a different result at trial---Alternative theory that a single perpetrator (or two at most) had attacked the victim would have had to persuade the jury that both "A" and "B" falsely confessed to being active participants in a group attack that never occurred; that one of the co-accused falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that an otherwise disinterested witness, wholly fabricated his story; that two other witnesses testified to witnessing a group attack that did not occur; and that another witness in fact did not see the accused and co-accused persons, as a group, identify the victim as a target and leave together to rob her--- As for the undisclosed evidence discrediting certain prosecution witnesses, the record showed that it was largely cumulative of discrediting evidence that accused and co-accused persons already had and used at trial---In the context of present case, with respect to discredited witnesses, the cumulative effect of the withheld evidence was insufficient to undermine confidence in the guilty verdict---Evidence withheld by the prosecution was insufficient and not material under Brady v. Maryland, 373 U.S. 83 to overturn the convictions of the accused and co-accused persons---[Per Kagan, J, dissenting; [Minority view] Had the exculpatory evidence been disclosed, the accused and co-accused persons would have been able to present a more unified defence, pointing their fingers at only one of the co-accused (rather than at each other), arguing that said co-accused had robbed and assaulted two other victims of similar age in the weeks after the murder in question---By supressing the exculpatory evidence the prosecution got the case it most wanted, the one in which the defendants, each in an effort to save himself, formed something of a circular firing squad; and the prosecution avoided the case it most feared, the one in which the defendants acted jointly to show that a co-accused known to assault women like the victim committed her murder---Secondly, the prosecution suppressed witness statements mentioning that groans were heard coming from inside a small closed garage, suggesting that not a large group carried out the attack because that many people (as everyone agreed) couldn't have fit inside a small garage---Thirdly and finally, the Government suppressed a raft of evidence discrediting its investigation and impeaching its witnesses---Undisclosed documents revealed that one of the prosecution's main witnesses was under the influence of drugs when she met with investigators to identify participants in the crime, and that she also encouraged a friend to lie to the police to support her story---Using such information, the accused and co-accused persons could have discredited the prosecution's witnesses, even while presenting their own account of the murder---Supressed evidence in question was material under the Brady standard when there was a reasonable probability that, had the undisclosed evidence been disclosed, the case would have resulted in either an acquittal or a hung jury rather than a conviction---Since all that was required was that the evidence convince a few jury members, the undisclosed evidence in the present case clearly met the Brady materiality standard---Reasonable probability existed that such a defence would have persuaded one or more jurors that the prosecution had not proven its case beyond a reasonable doubt]---Appeal was dismissed.

Smith v. Cain, 565 U. S. 73, 75 (2012); Cone v. Bell, 556 U.S. 449, 469-470; Kyles v. Whitley, 514 U.S. 419, 434 and United States v. Agurs, 427 U. S. 97, 112. Pp. 9-11 ref.

Per Kagan, J, (b) Criminal trial---

----Exculpatory evidence---Prosecutor, duty of---Scope---Constitutional requirements aside, turning over exculpatory material was a core responsibility of all prosecutors, whose professional interest and obligation was not to win cases but to ensure justice was done.

Kyles v. Whitley, 514 U.S. at 439 ref.

2017 S C M R 1524

[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

JAE LEE---Appellant

Versus

UNITED STATES---Respondent

Decided on 23rd June, 2017.

(Certiorari to the United States Court of Appeals for the Sixth Circuit)

Per Roberts, C.J. ; Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., agreeing; Thomas and Alito, JJ. dissenting

Counsel and client---

----Criminal trial---Ineffective assistance from counsel (lawyer)---"Strickland v. Washington, 466 U.S. 668", standard for ineffective assistance of counsel---Principles---Plea of guilty by accused based on counsel's erroneous advice---Effect---Prejudice caused to the accused---Appellant came to the United States (U.S.) from a foreign country as a child with his family and lived in the U.S. for thirty-five years legally, though he did not become a citizen---Appellant got involved in the drugs trade, and was arrested and charged with possession of drugs with intent to distribute---Government's case against the appellant was very strong, and on the advice of his attorney, appellant pleaded guilty in exchange for a lighter sentence---Appellant's attorney repeatedly assured him that he would not be deported as a result of pleading guilty, however the guilty plea by appellant constituted a conviction of an aggravated felony, which was a deportable offense under the (US) Immigration and Nationality Act---When appellant learnt of his deportation, he moved to vacate his conviction, arguing that his attorney had provided constitutionally ineffective assistance under the standard established in Strickland v. Washington, 466 U.S. 668, which provides for a two-pronged test: whether the attorney's advice was deficient, and whether the deficiency prejudiced the defendant---Appellate Court below upheld appellant's conviction and determined that he could not satisfy the second prong of the Strickland test because there was not sufficient evidence that the outcome of appellant's case would have been substantially different had he known about the risk of deportation; [Per Roberts, C.J.], held, that the Sixth Amendment to the United States Constitution guaranteed a defendant the effective assistance of counsel at "critical stages of a criminal proceeding," including when he entered a guilty plea---To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" and that he was prejudiced as a result [Strickland v. Washington, 466 U.S. 668, 692]---Under the Strickland test, when a defendant claimed that his plea was caused by ineffective assistance of counsel, the defendant could demonstrate that he was prejudiced by showing a reasonable probability that, but for his counsel's errors, he would have gone to trial rather than accepting a plea---Relevant question was not whether the defendant would have been acquitted at trial but whether, had the defendant been properly advised, he would have chosen to exercise his right to a trial---When a defendant alleged his counsel's deficient performance led him to accept a guilty plea rather than go to trial, the court did not inquire whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain---Court could not accord any presumption to judicial proceedings that never took place---Defendant's decision making may not turn solely on the likelihood of conviction after trial---Court could not say that it would be irrational for someone in appellant's position to risk additional prison time in exchange for holding on to some chance of avoiding deportation---Even if a defendant were highly likely to lose at trial, as was the position in the present case, inadequate assistance of counsel may still prejudice his ability to weigh his options and their potential consequences in deciding whether to take a plea---As said inquiry was necessarily a fact-specific one that must be conducted on a case by-case basis, the Court could not create a sweeping, per se rule---Appellant had successfully demonstrated that avoiding deportation was a determinative issue in his decision-making---Both the appellant and his counsel testified that deportation was the determinative issue to the appellant; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to the foreign country he had immigrated from---Appellant in such circumstances met the standard to demonstrate that he suffered prejudice under the Strickland v. Washington, 466 U.S. 668, standard for ineffective assistance of counsel---Appellant had established that he was prejudiced by erroneous advice of his counsel, demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial---[Per Thomas, J, dissenting; [Minority view] that, guarantee of adequate assistance of counsel under the Sixth Amendment to the United States Constitution did not require counsel to provide accurate advice about the consequences of taking a plea---Even under the Sixth Amendment analysis, the majority opinion in the present case erred by applying a standard that did not require the defendant to show that the ineffective assistance of counsel he received prejudiced the outcome of the proceeding---Under the Strickland test an error by counsel did not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment---Prejudice inquiry was not limited to the stage of the proceeding at which the defendant received the ineffective assistance; instead, there must be a reasonable probability that the outcome of the whole proceeding would have been different---Proper inquiry required a defendant to show both that he would have rejected his plea and gone to trial and that he would likely have obtained a more favourable result in the end---In the present case, there was not sufficient evidence to show a reasonable probability that the result of the criminal proceeding would have been different but for the counsel's ineffective advise---Appellant did not dispute that he possessed large quantities of illegal drugs or that the Government had secured a witness who had purchased the drugs directly from him---In the face of overwhelming evidence of guilt and in the absence of a bona fide defense, a reasonable court or jury applying the law to the facts of the present case would find the defendant guilty; there was no reasonable probability of any other verdict---Any defendant in appellant's shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial---Appellant, thus, failed to show prejudice under the Strickland v. Washington, 466 U.S. 668, standard]---Judgment of the Appellate Court below was reversed, and the case was remanded for further proceedings.

Lafler v. Cooper, 566 U. S. 156, 165 (2012); Hill v. Lockhart, 474 U. S. 52, 58 & 59; INS v. St. Cyr, 533 U. S. 289, 322-323 and Padilla v. Kentucky 559 U.S. 356, 372 ref.