SCMR 2018 Judgments

2018 S C M R 100

[Constitutional Court of South Africa]

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

MATJHABENG LOCAL MUNICIPALITY and others---Applicants

Versus

ESKOM HOLDINGS LIMITED and others---Respondents

Case Nos. CCT 217/15 and CCT 99/16, decided on 26th September, 2017.

(a) Contempt of court---

----Civil proceedings---Disobedience of court order---Disobeying a court order unlawfully and intentionally was a crime---Wilful disobedience of an order made in civil proceedings was both contemptuous and a criminal offence---All contempt of court, even civil contempt, may be punishable as a crime.

Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA); Meadow Glen Home Owners Association v City of Tshwane Metropolitan Municipality [2014] ZASCA 209; 2015 (2) SA 413 (SCA) (Meadow Glen) at para 35 and Burchell v Burchell [2005] ZAECHC 35 ref.

(b) Contempt of court---

----"Civil and criminal" contempt---Distinction---Criminal contempt brought the moral authority of the judicial process into disrepute and as such covered a multiplicity of conduct interfering in matters of justice pending before a court---Criminal contempt thereby created serious risk of prejudice to the fair trial of particular proceedings---Civil contempt, in contrast, involved the disobedience of court orders---Continued relevance of the distinction between civil and criminal contempt also seemed to lie, on occasion, in the ability to settle the dispute and to waive contempt.

(c) Contempt of court---

----Civil contempt--- Committal--- Scope--- Not every court order warranted committal for contempt of court in civil proceedings---Relief in civil contempt proceedings could take a variety of forms other than criminal sanctions, such as declaratory orders, mandamus, and structural interdicts---All of the said remedies played an important part in the enforcement of court orders in civil contempt proceedings---Objective of said remedies was to compel parties to comply with a court order---In some instances, however, the disregard of a court order may justify committal, as a sanction for past non-compliance---Committal may be necessary because breaching a court order, wilfully and with mala fides, undermined the authority of the courts and thereby adversely affected the broader public interest.

Burchell v Burchell [2005] ZAECHC 35 at para 34; Cape Times Ltd v Union Trades Directories (Pty) Ltd 1956 (1) SA (NPD) at 120A-C and Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) ref.

(d) Contempt of court---

----Relief for contempt---Objective for such relief was to vindicate the rule of law rather than to punish the transgressor.

(e) Contempt of court---

----Standard of proof---Standard of proof in a contempt of court case must be applied in accordance with the purpose sought to be achieved i.e. the consequences of the various remedies---Civil contempt remedies of committal or a fine had material consequences on an individual's freedom and security of the person, however, it was necessary in some instances because disregard of a court order not only deprived the other party of the benefit of the order but also impaired the effective administration of justice---Criminal standard of proof i.e. beyond a reasonable doubt was required where the remedy sought may potentially impact an individual's freedom and security of the person---On the other hand, there were civil contempt remedies e.g., declaratory relief, mandamus, or a structural interdict that did not have the consequence of depriving an individual of their right to freedom and security of the person---In such a case, the civil standard of proof i.e. balance of probabilities, applied.

(f) Contempt of court---

----Pre-requisites---Non-compliance with court order---For an action for contempt of court (for non-compliance with a court order) the pre-requisites were, that there must exist an order; that the order must be duly served on, or brought to the notice of the alleged contemnor; that there must be non-compliance with the order; and that the non-compliance must be wilful and mala fide.

(g) Contempt of court---

----Public official responsible for contempt of court in personal capacity---Effect---Where a public official was cited for contempt in his personal capacity, the official himself or herself, rather than the institutional structures for which he or she was responsible, must have wilfully or maliciously failed to comply.

(h) Contempt of court---

----Joinder of contemnor to proceedings---Scope---No court could make findings adverse to any person's interests, without that person first being a party to the proceedings before it---Purpose of such requirement was to ensure that the person in question knew of the complaint so that they could enlist counsel, gather evidence in support of their position, and prepare themselves adequately in the knowledge that there were personal consequences, including a penalty of committal for their non-compliance---All said entitlements were fundamental to ensuring that potential contemnors' rights to freedom and security of the person were not arbitrarily deprived---Joinder may however be unnecessary in certain situations e.g. , when a rule nisi was issued, calling upon those concerned to appear and defend a charge or indictment against them---In appropriate circumstances a rule nisi may be adequate even when there was a non-joinder in contempt of court proceedings.

Member of the Executive Council for Health, Gauteng v Lushaba [2016] ZACC 16; 2017 (1) SA 106 (CC); 2016 (8) BCLR 1069 (CC) (Lushaba) at para 15 ref.

W R Mokhare SC and A E Ayayee instructed by Majavu Attorneys for Matjhabeng Local Municipality (in CCT 217/15).

M Koza SC and N Moloto instructed by Phatshoane Henney Incorporate for Eskom Holdings Limited (in CCT 217/15).

N A Cassim SC, S K Hassim SC and M A Dewrance instructed by the State Attorney, Pretoria for Shadrack Shivumba Homu Mkhonto, Compensation Commissioner, Director-General, Department of Labour and Minister of Labour (in CCT 99/16).

P G Robinson SC instructed by Quiryn Spruyt Attorneys for Compensation Solutions (Pty) Limited (in CCT 99/16).

2018 S C M R 174

[Constitutional Court of South Africa]

Present: Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ

MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH AND SOCIAL DEVELOPMENT, GAUTENG and others---Applicants

Versus

DZ obo WZ---Respondent

Case No. CCT 20/17, decided on 31st October, 2017.

(a) Damages---

----'Delictual damages'---"Once and for all" rule---Scope---In relation to delictual claims, the "once and for all" rule was to the effect that a plaintiff must generally claim in one action all past and prospective damages flowing from one cause of action---Court was obliged to award these damages in a lump sum, the object of which was to prevent the repetition of lawsuits, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions---Said rule was buttressed by the res judicata principle, the purpose of which was to prevent a multiplicity of actions based upon a single cause of action and to ensure that there was an end to litigation.

(b) Damages---

----'Delictual damages'---"Once and for all" rule---Scope---'Lump sum award' or 'periodic payments' for future medical expenses---Claimant's child developed cerebral palsy after birth due to the negligence of the hospital staff---Relevant Council for Health Development ("Health Council") accepted that the child's condition was caused by the negligence of the hospital's staff---Health Council conceded liability for a certain sum, of which a part was in respect of future medical expenses---In an amended plea before the High Court, the Health Council indicated that it wished to satisfy the award in respect of future medical expenses by undertaking to pay service providers directly for future medical expenses as and when they might arise within 30 days of presentation of a written quotation---Question was whether the Health Council could be allowed to make 'periodic payments' for future medical expenses---[Per Froneman, J] that "once and for all" rule, which provided for a lump sum award for damages, was in line with the Constitutional value system (of South Africa)---Common law (as applicable in South Africa) did not provide for payment of damages in instalments, but periodic payment of damages could not be said to be out of sync with the high value the Constitution (of South Africa) ascribed to socio-economic rights---Defendant was allowed to produce evidence that medical services of the same or higher standard, at no or lesser cost than private medical care, would be available to a plaintiff in future; and if such evidence was of a sufficiently cogent nature to disturb the presumption that private future healthcare was reasonable, the plaintiff would not succeed in the claim for the higher future medical expenses---Said approach was in accordance with general principles in relation to the proving of damages---Only after assessing the evidence proffered on the adequacy of alternative future medical care could a court assess, "once and for all", whether the damages claimed had been proven reasonable; and if so, a lump sum assessment must be made of the future loss---[Per Jafta, J, agreeing with Froneman, J, but with his own reasoning] "Once and for all" rule did not prohibit periodic payments---Said rule regulated judicial process and not execution of the payment of a judgment debt and did not require that once the amount of compensation was determined it must be paid in a single payment---In a particular case the judgment debtor may not have funds or assets which covered the entire debt, and in such event the judgment creditor may exact payment of part of the debt, and if the debtor was later in possession of assets that could cover the balance, the creditor may enforce payment of the balance of the debt---"Once and for all" rule only prohibited multiplicity of lawsuits based on a single cause of action or occurrence---Periodic payment of delictual damages was not prohibited under common law (as applicable in South Africa)---While damages were ordinarily paid in a lump sum, where facts were pleaded which showed it was in the interests of justice to allow for periodic payment, superior court may grant such an order---In the present case the Health Council failed to lead evidence supporting the periodic payment of the damages in respect of future medical expenses---Appeal filed by Health Council was dismissed accordingly.

Ngubane v South African Transport Services [1990] ZASCA 148; 1991 (1) SA 784G-85C and Cunningham v Harrison [1973] 3 All ER 463 (CA) ref.

(c) Common law---

----Development of 'common law'---Scope---Common law developed incrementally through the rules of precedent, which ensured that like cases were treated alike---Development occurred not only when a common law rule was changed altogether or a new rule was introduced, but also when a court needed to determine whether a new set of facts fell within or beyond the scope of an existing rule---Development of the common law, therefore, could not take place in a factual vacuum---Whether a new set of facts fell within or beyond the scope of an existing rule may, in appropriate circumstances, be decided on exception, a procedure whereby the facts were assumed to be those pleaded for the purpose of determining whether they legally sustained a cause of action or a plea---Where, however, a common law rule was to be changed altogether, or a new rule was to be introduced, it was better to make a decision only after hearing all the evidence so that the decision could be given in the light of all the circumstances of the case, with due regard to all relevant factors---When exercising their authority to develop the common law, courts should be mindful that, in accordance with the principle of the separation of powers, the major engine for law reform should be the legislature---Relevant factors in such respect included whether the common law rule was a judge-made rule, the extent of the development required and the legislature's ability to amend or abolish the common law.

K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) at para 16; Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 80; O'Callaghan N.O. v Chaplin 1927 AD 310 at 327; Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd [2015] ZACC 34; 2016 (1) SA 621 (CC); 2016 (1) BCLR 28 (CC) (Mighty Solutions) at paras 44 & 45 and Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509 (CC) at para 115 ref.

V S Notshe SC and A M Pheto instructed by the State Attorney for the Applicants.

S Budlender, M Coetzer and M Mbikiwa (Pupil) instructed by Wim Krynauw Incorporated for the Respondent.

A Dodson SC, A Bodlani, P Seseane and M Finn instructed by the State Attorney for the First Amicus Curiae.

G Budlender SC and N Bawa SC instructed by the State Attorney for the Second Amicus Curiae.

2018 S C M R 453

[Constitutional Court of South Africa]

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

NOMSA ELLEN DLADLA and others---Applicants

Versus

CITY OF JOHANNESBURG and others---Respondents

Case No. CCT 124/16, decided on 1st December, 2017.

Per Mhlantla J; Mogoeng CJ, Nkabinde ADCJ, Froneman, Khampepe, Mojapelo AJ, Pretorius AJ and Zondo, JJ agreeing; Cameron, Jafta and Madlanga, JJ also agreeing but with their own reasons

(a) Fundamental Rights---

----Right to human dignity---Right to have access to adequate housing---Freedom and security of the person---Right to privacy---Scope---Temporary shelter accommodation provided by the City Government---Condition that residents leave during the day for certain hours and prohibition on opposite gender partners living together---Whether such shelter conditions unlawfully infringed the resident's Fundamental Rights to dignity, freedom and security of the person, privacy and access to adequate housing---Residents (applicants) had been evicted from a building in which they resided pursuant to an order of the court ("the court order")---Eviction was subject to the condition that the City Government would provide the residents with temporary alternative accommodation in a location as near as feasibly possible to the building in which they had lived---City Government provided temporary accommodation to the residents at a shelter, which was run by a service provider, with whom the City Government had concluded a contract to provide the temporary accommodation---Upon arrival at the shelter, the residents were told that, in exchange for living there, they had to comply with certain rules---First rule required residents to live in separate dormitories based on gender ("the family separation rule"); this prevented couples from staying together and separated children over the age of 16 from their caregivers of the opposite gender---Second rule prohibited residents from being inside the shelter from 8 a.m. to 5:30 p.m. every day and required the gates of the shelter to be locked again at 8 p.m. ("the lockout rule")---Any occupant who had not returned by 8 p.m. was locked out and had to find accommodation elsewhere for the rest of the night---[Per Mhlantla. J (Majority view): Argument reiterated several times by the City Government that the shelter did not constitute a "home", therefore the residents had diminished expectations with respect to dignity, freedom and security of the person, and privacy was without merit---Just because the shelter did not constitute a home in the everyday, colloquial sense of the term did not mean that the residents were not entitled to the protection of their Fundamental Constitutional Rights to dignity, freedom and security of the person, and privacy---Constitution (of South Africa) conferred said Rights on everyone, regardless of where they were at a given time---'Family separation' and lockout rules constituted an infringement of the rights to dignity, freedom and security of the person, and privacy---Lockout rule limited the right to dignity because it was condescending and degrading; it forced the residents out onto the streets during the day with no place whatsoever to call their own and to rest---Resultantly people sought refuge on the street while they waited for the shelter to re-open---Lockout rule also disproportionately affected people who worked the night shift and slept during the day---Lockout rule also undercut the ability of the residents to make plans and to make use of their time as they saw fit---Clearly, the implication was that the residents could not manage their own affairs and had to be shepherded to and fro---Family separation rule created a vast chasm between parents and children, between partners and between siblings; it eroded the basic associative privileges that inhered in and form the basis of the family---Lockout and family separation rules also impaired the right to privacy---Fact that the residents were forced out onto the street during the day meant ipso facto they did not have privacy for the duration thereof---Right to privacy could only be given effect if the residents had a place they could call their own to which they could retreat at any time---Lockout rule impinged their ability to avail themselves of such solitude---Finally, the lockout and family separation rules limited the right to freedom and security of the person as they restricted their movements in critical respects---Residents could not go about their business because the lockout rule prevented them from accessing the shelter during the day and barred them from entry after 8 p.m.---Since parents could not visit their children and partners of different gender could not stay with each other, the family separation rule materially affected the movements of the residents---Lockout rule exposed the residents to the vagaries of street life both during the day and at night---Section 36 of the Constitution of South Africa permitted the limitation of Fundamental Rights only to the extent that such limitation was imposed by law of general application and was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom---In the present case, the 'family separation rule' and 'lockout rule' were not "law of general application" because they were agreed by the City Government and a service provider in a private contract that only bound them---'Family separation' and 'lockout' rules infringed the Fundamental Rights of residents provided under Ss. 10, 12 & 14 of the Constitution of South Africa and such infringement could not be justified---Constitutional Court of South Africa interdicted and restricted the City Government from enforcing the 'lockout rule' and 'family separation rule' as against the residents of the shelter]---[Per Cameron J; (agreeing with his own reasons): Rules that the shelter had imposed on the residents in providing them with temporary accommodation were measures under S. 26(2) of the Constitution of South Africa, which provided that the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the 'right to have access to adequate housing'---Provision of temporary accommodation under the 'court order' and the rules imposed by the shelter in fulfilling that order could not be separated---Since the rules were sourced in the 'court order', the temporary housing at issue, even though afforded in response to a court order, remained a S. 26 measure to achieve the progressive realisation of the right of access to adequate housing, which meant that standard of reasonableness provided under S. 26(2) of the Constitution of South Africa applied in adjudging the Constitutional acceptability of the rules---In addition, the absence of a "law of general application" did not preclude determining whether the rules were reasonable---Moreover, the 'court order' was a "law of general application"---Reasonableness criteria in S. 36(1) & S. 26(2) of the Constitution of South Africa entailed the same interpretive process---Consequently, in addition to unreasonably limiting the residents' rights to dignity, freedom and security of the person, and privacy under Ss. 10, 12 & 14 of the Constitution of South Africa, the shelter's rules also unreasonably limited the residents' right of access to adequate housing under S. 26 of the Constitution]---[Per Jafta, J; (agreeing with his own reasons): Application of the impugned rules on the residents constituted an unjustifiable violation of their rights guaranteed by Ss. 10, 12 & 14 of the Constitution of South Africa---Section 26(2) of the Constitution, however, was not applicable in the present case as the occupation of the shelter did not flow from a measure taken by the City within its available resources to make the residents' right of access to adequate housing progressively realisable, instead the City had afforded them accommodation at the shelter in compliance with the 'court order'---City Government, therefore, had no right to impose the impugned rules on the residents in complying with the order as that order did not empower it to violate the residents' Fundamental Rights---In complying with the 'court order' of providing temporary alternative accommodation, the City Government committed a monumental irregularity which should not be condoned---'Court order' did not come with conditions, therefore, it was not up to the City Government to impose any conditions through the impugned rules---In such circumstances the conduct of the City Government seriously undermined not only the 'court order' but also the Constitution]---[Per Madlanga J; (agreeing with his own reasons): Shelter's rules constitute a "measure" under S. 26(2) of the Constitution of South Africa---Consequently the shelter's impugned rules did not meet the "reasonableness" criterion elucidated in the jurisprudence of Constitutional Court of South Africa, which was sufficient to justify a holding that the shelter's rules were constitutionally invalid]---Appeal was allowed in circumstances.

Per Mhlantla J:

(b) Fundamental Rights---

----Right to dignity---Scope---Right to dignity included the right to family life, which in turn consisted of the right to marry and the right to raise a family.

Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at para 36 ref.

A De Vos SC, S Wilson, I De Vos and M Stubbs instructed by Socio-Economic Rights Institute of South Africa for Applicants.

C D A Loxton SC and A W Pullinger instructed by Moodie and Robertson Attorneys for First Respondent.

E Webber instructed by Legal Resources Centre for First Amicus Curiae.

J F D Brand instructed by Centre for Child Law for Second Amicus Curiae.

2018 S C M R 536

[Constitutional Court of South Africa]

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

KLAAS LESETJA PHAKANE---Applicants

Versus

The STATE---Respondent

Case No. CCT 61/16, decided on 5th December, 2017.

Per Zondo J; Nkabinde (ADCJ), Jafta, Khampepe, Mhlantla, Madlanga and Musi (AJ), JJ conurring; Cameron and Mbha (AJ), JJ dissenting.

Appeal (Criminal)---

----Fair trial---Appeal against conviction---Incomplete trial record---Complete record of evidence recorded by Trial Court missing and not sent to the Appellate Court---Appellate Court convicting accused despite missing evidence---Question as to whether right of accused to a fair trial was infringed---Accused was alleged to have assaulted the deceased which allegedly caused the latter's death---Evidence of the main witness before whom the accused confessed to the assault was critical in the prosecution case---Trial Court acquitted the accused of assault but found him guilty of murder---Accused appealed to the High Court against his conviction and sentence---State failed to deliver a full record to the High Court---Attempts to reconstruct the record of Trial Court failed---Part of the evidence missing from the record included the main witness's evidence in the Trial Court before whom the accused allegedly confessed to the assault---High Court held that the absence of the transcript of main witness's evidence in the appeal record was not such that the High Court could not fairly determine the appeal, therefore, it upheld the conviction of murder and rejected the accused's argument that in the absence of the missing evidence he could not have had a fair trial; [Per Zondo, J (Majority view): Main witness's evidence in Court was critical to his conviction by the Trial Court and without the transcript of that evidence, there could be no fair appeal for the accused---Witnesses' account before the police and her evidence before the Trial Court differed vastly---Version narrated by the witness before the police when she was in a romantic relationship with the accused did not implicate him in murder but what she told the Trial Court three years later when they had broken up seriously, implicated him in murder---Trial Court appeared not to have considered such discrepancy in her evidence---In the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, an appeal court could not know whether the witness ever explained the discrepancy and how she explained it---Without knowing whether the witness ever explained such conflict between her evidence in court and her statement to the police, an appeal court would never be in a position to determine the appeal fairly---High Court failed to appreciate that witness's evidence was the decisive evidence which led to the Trial Court convicting the accused---Accused's right of appeal was frustrated by the fact that material evidence was missing from the record---Failure of the State to furnish an adequate record of the trial proceedings or a record that reflected the witness's full evidence before the Trial Court in circumstances in which the missing evidence could not be reconstructed had the effect of rendering the accused's right to a fair appeal nugatory or illusory---Further on basis of available record the accused could not be convicted of assault (only) as a competent verdict---Assault was a competent verdict for murder only if there was a link between the assault and the charge of murder---Assault must at least have been part of the actus reus on which the charge of murder was based---In the present case, the cause of deceased's death was unknown, and since one did not know the cause of the deceased's death, it could not be known what verdict would be competent to the charge of murder---Proper remedy was to set aside the trial proceedings against the accused in its entirety---Supreme Court directed that the accused should be released immediately and it would be up to the concerned prosecuting authority to decide whether or not to recharge the accused again]---[Per Froneman J, (concurring with Majority view): Missing evidence was crucial to the determination of the accused's guilt or innocence on all the charges---Trial proceedings against the accused should be set-aside and the present matter should be remitted to the High Court for an investigation into whether a retrial should proceed]---[Per Cameron J (Minority view): Murder conviction of accused had to be vacated because the evidence available to the High Court in the record before it did not prove beyond a reasonable doubt that he committed the crime alleged, however, there was sufficient evidence on record from other witnesses (other than the missing evidence) to find him guilty on a competent conviction of assault---Strong circumstantial evidence was available before the High Court which proved beyond reasonable doubt that the accused assaulted the deceased---Competent verdict of assault, therefore, had to be upheld against the accused].

S v Joubert [1990] ZASCA 113; 1991 (1) SA 119 (A) and S v Chabedi [2005] ZASCA 5; 2005 (1) SACR 415 (SCA) ref.

M Malowa and C Mavundla instructed by Pretoria Law Society of Advocates for Applicant.

2018 S C M R 1664

[Constitutional Court of South Africa]

Present: Mogoeng CJ, Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J.

MY VOTE COUNTS NPC---Applicant

Versus

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES and another---Respondents

Case No. CCT 249/17, decided on 21st June, 2018.

Per Mogoeng CJ; Zondo DCJ, Dlodlo, Goliath, Jafta, Khampepe, Madlanga, Petse and Theron, JJ agreeing; Froneman and Cachalia, JJ concurring.

Fundamental Rights---

----Access to information---Scope---Elections---Private funding of political parties and independent candidates---Significance of voter having access to information about private funding of candidates and parties---Appellant-organization sought information relating to the private funding of some political parties [in terms of the Promotion of Access to Information Act (2 of 2002) (South Africa) ("the Act")]---Taking advantage of the certain provisions of the Act, some of those parties refused to disclose the funding information, which led to the appellant initiating an application in the High Court challenging the constitutionality of the Act---Appellant argued that the Constitution [Republic of South Africa] imposed an obligation on Parliament to pass legislation that provided for the recordal and disclosure of information on the private funding of political parties and independent candidates; that the Act was national legislation to give effect to a citizen's right of access to information, but it had failed to do the same---High Court concluded that the Act's failure to provide for access to information on private funding was a deficiency that rendered the Act inconsistent with the provisions of Ss. 32, 7(2) & 19 of the Constitution [Republic of South Africa]---Validity---[Per Mogoeng CJ: State was under an obligation to do everything reasonably possible to give practical and meaningful expression to the right of access to information and the right to vote (sections 32, 19 and 7(2) of the Constitution of Republic of South Africa)---Exercise of the right to vote must be an informed choice, and there was a vital connection between the proper exercise of the right to vote and the right of access to information---Without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life was undermined---Any information that completed the picture of a political party or an independent candidate in relation to who they really were or could be influenced by, in what way and to what extent, was essential for the proper exercise of the voter's "will" on which the government was Constitutionally required to be based---For every citizen to be truly free to make a political choice, including which party to join and which not to vote for or which political cause to campaign for or support, access to relevant or empowering information must be facilitated---Not only must the information be "held" in one form or another, it must also be reasonably accessible to potential voters---Voters needed it to be able to make a quality decision to vote for a particular political party or independent candidate---Political parties and independent candidates should not be left to pick and choose what information would be "held", preserved and disclosed to those who depended on information to determine to whom to entrust their future, that of the nation and posterity---All information necessary to enlighten the electorate about the capabilities and dependability or otherwise of those seeking public office must not only be compulsorily captured and preserved but also made reasonably accessible---Unchecked or secret private funding from all, including other nations, could undermine the fulfilment of Constitutional obligations by political parties or independent candidates so funded, and by extension a nation's strategic objectives and sovereignty---Secrecy enabled corruption and conduced more to a disposition by politicians that was favourable towards those who funded them privately once elected into public office---Such corruption was likely to flourish even where information on private funding was withheld at the discretion of the funded and unlikely to be exposed to the light of publicity---Disclosure of private funding would help the public to detect as to whose favour political players were likely to return, once elected into public office---State was required to pass legislation that provided for the recordal, preservation and reasonable accessibility of information on private funding of political parties and independent candidates---Role of transparency and accountability, that were essential for rooting out corruption that could be enabled by undisclosed private funding, reinforced the need to record, preserve and disclose information---So important was the obligation to record, preserve and make private funding information reasonably accessible to the voting public, that it must also be easily accessible to the media, NGO's, academia and other political players---Such wide dissemination of information was essential for the proper functioning and vibrancy of a Constitutional democracy---Impugned Act was deficient because it did not provide that information on the private funding of political parties and independent candidates be recorded and preserved; that it be made reasonably accessible to the public; and that independent candidates and all political parties were subject to its provisions---Supreme Court of (South Africa) confirmed the order of constitutional invalidity against the Act and directed the Parliament to amend the Act and take any other measure it deemed appropriate to provide for the recordal, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates within a period of 18 months]---[Per Froneman J; concurring: Constitutional obligation to record, preserve and make information on private political funding reasonably accessible was a systematic and continuous one---Every citizen had the right to free and fair elections, and there could be no fair and free elections if the press or other institutions of the civil society were prevented from access to information about private political funding---Such access to information was also justified on the ground that the recipients were acting in the public interest on behalf of the country's citizenry].

M du Plessis and J Thobela-Mkhulisi instructed by Webber Wentzel for Applicant.

T Masuku and L Dzai instructed by State Attorney, Cape Town for Respondents.

2018 S C M R 1

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Messrs ADVANCE TELECOM and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 1812-L to 1815-L, 1962-L to 1970-L, 1981-L to 1983-L of 2017, decided on 22nd September, 2017.

(On appeal against the judgment dated 14.04.2017 passed by the Lahore High Court, Lahore in I.C.As. Nos. 1196/2015, 1340/2015, 1344/2015, 1635/2015, 1197/2015, 1252/2015, 1258/2015, 1300/2015, 1455/2015, 1495/2015, 1500/2015, 1733/2015, 1821/2015, 1388/2015, 1467/2015 and 1535/2015)

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

----Ss. 18(1) & 18(2)---"Customs duty" and "regulatory duty"---Distinction---Regulatory duty imposed by the Government under S.18(2) of the Customs Act, 1969 though a species of customs duty, was a duty in addition to the duty prescribed under the First Schedule to the Act to meet a particular situation, not covered by the statutory duty---In contradiction to the customs duty levied under S. 18(1) of the Act, which was prescribed and predetermined, the regulatory duty was neither prescribed nor pre-determined but was levied at a rate which may vary according to the circumstances---Regulatory duty was imposed in exercise of the delegated authority, by the Government subject to limitations mentioned in clauses (2) to (4) of S. 18---Regulatory duty, therefore, by its very nature was a transitory measure intended to cover and meet a situation or condition not covered by the statutory duty prescribed under S. 18(1) of the Act---Where the legislature granted exemption from the payment of customs duty that fell under S. 18(1), the same could not be made basis to avoid payment of regulatory duty imposed subsequently unless there was also a promise that such concession would also be applied to regulatory duty in case it was levied in future.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 and Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842 ref.

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

----S. 18(5), proviso---Bilateral agreements---Said agreements could not be read into the proviso of S. 18(5) of the Customs Act.

Majeed and Sons Steels (Pvt.) Ltd. and others v. Federation of Pakistan through Secretary M/o Economic Affairs, Islamabad and others 2016 SCMR 655 ref.

Shafqat Mehmood Chohan, Advocate Supreme Court and Mian Muhammad Athar, Advocate Supreme Court for Petitioners.

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court and Walayat Umar Ch., Advocate-on-Record for Respondents.

2018 S C M R 5

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

AZIZ UL ALLAH and others---Appellants

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and another---Respondents

Civil Appeals Nos. 588 to 590 of 2017, C.M.As. Nos. 2032, 2421, 2422 and 2419 of 2017 and Civil Appeal No. 710 of 2012, decided on 25th September, 2017.

(On appeal against the judgment dated 14.03.2017 passed by the High Court of Balochistan Quetta in C.Ps. Nos. 1163 and 1172 of 2016)

Balochistan Civil Service (Executive Branch) Rules, 1984---

----R. 5---Balochistan Secretariat (Grade 16 and above) Service Rules, 2002, R. 5---Balochistan Finance and Accounts Group Service Rules, 2001, R. 5---Assistant Executive Officers (appointed under the aegis of the Provincial Public Service Commission) absorbed in Provincial Civil Service (Executive Branch) and Provincial Secretariat (Section Officers) Service---Legality---Rules regulating appointment by initial recruitment, promotion and transfer in the Provincial Civil Service (Executive Branch) and the Provincial Secretariat (Section Officers) Service did not allow squeezing in any intruder, therefore, individual or en-bloc absorption from any other group of service, being essentially against law, could not be upheld---Absorption of a civil servant of a non-cadre post against a cadre post was alien to the said rules.

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.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. 588 of 2017).

Khawaja Haris Ahmed, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. 589 of 2017).

Qasim Mengat Appellant in person (in C.A. 590 of 2017).

Malik M. Qayyum, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. 710 of 2017).

Amanullah Kanrani, A.-G. Balochistan, Ayaz Khan Swati, Additional A.-G. Balochistan and Raja Ibrahim Satti, Senior Advocate Supreme Court for Respondents (Rs 3-7 in CA 588 and Rs 2-6 in 589/17).

Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Respondents (Rs 32-37 in C.A. 890/17).

Ms. Asma Jehangir, Senior Advocate Supreme Court for Respondents (Rs 2-6 in C.A. 710/17).

Raja Ibrahim Satti, Senior Advocate Supreme Court (in C.M.A. 3198/1).

2018 S C M R 21

[Supreme Court of Pakistan]

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

HAQ NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 814 of 2014, decided on 9th October, 2017.

(Against the judgment dated 12.11.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No. 303-J of 2010 and Murder Reference No. 361 of 2010)

(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---High Court had categorically concluded that the motive set up by the prosecution had not been proved---Apart from that two real brothers of the deceased, who were shown as eye-witnesses in the FIR, had not been produced by the prosecution before the Trial Court---Two other prosecution witnesses had been given up by the prosecution as having been won over---Post-mortem examination of the deadbody had been conducted with a noticeable delay and in the inquest report it had been mentioned that at the time of inspection of the deadbody by the investigating officer the eyes of the deceased were open---Notice was issued to the complainant twice so as to appear before the High Court but the complainant had failed to appear and had shown no interest in the proceedings before the High Court---All said factors warranted caution in the matter of the sentence of death passed against the accused---Sentence of death passed against the accused was reduced to imprisonment for life in circumstances---Appeal was disposed of accordingly.

(b) 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---Where the prosecution asserted a motive but failed to prove the same then such failure on the 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 Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran @ 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.

2018 S C M R 24

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameed-ur-Rehman, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellant

Versus

UNITED BANK LIMITED and others---Respondents

Civil Appeal No. 73-P of 2010, decided on 13th January, 2016.

(On appeal from judgment of Peshawar High Court, Peshawar dated 18.1.2007, passed in FAB No. 35 of 2005)

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

----Ss.15 & 19---Civil Procedure Code (V of 1908), O. XXXIV, R. 13---Two mortgages created over same asset---Sale of mortgaged asset---Distribution of proceeds---Where two mortgages had been lawfully created in respect of same assets of the judgment debtor, if no other terms were specified between the parties to the contrary, unless the decree of first charge was fully satisfied by its sale proceeds, the decree from second charge, even if created with the consent of first mortgagor, would not be executable as it would be only subject to the satisfaction of the first decree/charge.

The State v. Rajah Ram Varu AIR 1966 Andhra Pradesh 233; Union Leasing Ltd. v. Pakistan Industrial Credit and Investment Corpn. Ltd. 2005 CLD 958 and Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers 2009 SCMR 611 ref.

Abdul Rauf Rohaila, Advocate Supreme Court for Appellant.

Muhammad Ajmal Khan, Advocate-on-Record/Advocate Supreme Court for Respondent No. 1.

Ex parte for Respondent No. 2.

2018 S C M R 28

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Sajjad Ali Shah, JJ

Mst. RAVIDA---Petitioner

Versus

AMJAD and others---Respondents

Criminal Peititon No. 892 of 2017, decided on 13th October, 2017.

(Against the order dated 03.7.2017 passed by the Peshawar High Court in Criminal Misc. B.A. 1245-P of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Application for cancellation of bail---FIR was lodged on the same day within twenty-five (25) minutes of the incident which, minimized the chances of false implication---Both the accused persons had been specifically named in the FIR and assigned specific roles---Complainant, who was the mother of the deceased, claimed to be the eye-witness of the incident, and there hardly appeared any reason to disbelieve her---Medical report fully supported the version of the complainant---Accused persons remained absconders for almost 15 months after the incident, and no plausible reason was advanced to justify their abscondence---Sufficient material was available on record which prima facie, connected the accused persons with the commission of offence---Bail granted to accused persons was recalled in circumstances.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1-2.

Zahid Yousaf Qureshi, Advocate Supreme Court/State counsel.

2018 S C M R 30

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Maqbool Baqar, JJ

Mrs. KHALIDA AZHAR---Appellant

Versus

VIQAR RUSTAM BAKHSHI and others---Respondents

Civil Appeal No. 634-L of 2012, decided on 7th November, 2017.

(Against the judgment dated 25.04.2012 of the Islamabad High Court, Islamabad passed in R.F.A. No. 43 of 2011)

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

----S. 42---Suit for declaration---Dispute over inheritance share---Appellant (sister) claimed that their deceased-father left behind certain properties, distribution agencies, stock in trade and Bank balance, which her brother (respondent) managed to get transferred in his name through forged documents, thus, denying her of her father's inheritance; held, that out of the various properties and assets held by the deceased-father the distribution agencies admittedly came to be terminated upon his demise, whereas the inventory/stocks in trade were, as claimed by respondent, sold by the widow of the deceased---Nothing was suggested on behalf of the appellant during the cross-examination of respondent to refute such claim of the respondent---Neither had the appellant disclosed the source of her information that the stocks were sold by respondent and not by the widow, nor had she been able to establish the amount for which the stocks were sold---Shop wherein the said inventory/stock in trade was kept was admittedly owned by the widow and according to the respondent was sold by him on the instructions of the widow for a certain amount, which he paid to her---Nothing to refute such claim was suggested on behalf of the appellant during the cross-examination of respondent---As regards the sale of a plot and the amounts withdrawn from the Bank accounts of the deceased, and the sale proceeds of the shares, the respondent had deposed that the plot was sold with the consent of all the legal heirs of the deceased on the basis of a power of attorney executed by them, and similarly a succession certificate was obtained and the amounts from the Bank accounts were withdrawn and so also the shares were sold with the consent of the legal heirs, who were paid their respective shares therein---Respondent further claimed that in fact he paid to the appellant amounts which were far in excess of her (inheritance) share---Appellant had, thus, failed to justify her claim and/or to prove her allegations with regard to the various properties, distribution agencies, stocks in trade, Bank accounts, shares etc. held by the deceased at the time of his death---Suit filed by appellant was dismissed to such extent and appeal was disposed of accordingly.

(b) Gift---

----Validity---Dispute over inheritance share---Appellant (sister) claimed that their deceased-father left behind a house, which her brother (respondent) managed to get transferred in his name through a forged gift deed and power of attorney, thus, denying her of her father's inheritance; held, that among the executants of the gift deed and the general power of attorney it was only the appellant who had denied execution of the document, and that too after a lapse of more than 26 years---Gift deed in question was a duly registered document executed by all the legal heirs of the deceased, including his widow and the appellant---Admittedly deceased's widow lived more than 7 years after the execution and registration of the said gift deed but neither she nor any other executant thereof including the appellant challenged the same in any manner throughout---Appellant had claimed that she had been asking for her share in the estate of the deceased from time to time however, neither had she been able to produce any evidence and/or witness in that regard nor stated as to when, in what manner, and in whose presence she made such demands---Respondent produced a witness who had witnessed the execution and registration of the gift deed and had signed the same as such---Said witness had verified such execution and registration with all the necessary details and deposed that he knew all the executants of the document personally---Other witness produced by the respondent was the Sub-Registrar, who verified the execution and registration of the document by all the executants before him, and deposed that he had first satisfied himself regarding their identity---Cross-examination of the said two witnesses conducted on behalf of the appellant, instead of causing any dent in their respective depositors, further strengthened the respondent's case by bringing forth the details pertaining to the time, place, manner and sequence in which the gift deed was executed---Another donor/surviving executant of the gift deed, who was also the sister of the appellant, in her testimony verified having signed and executed the gift deed as well as the power of attorney, and that all the remaining executants thereof had signed the documents in her full view---Daughter of another donor, who executed the gift deed, explained to the court as to how she recognized the signatures of her mother on the said two documents as being her real and true signatures---Respondent also produced a letter whereby the deceased's widow informed the concerned Gift Tax Officer that she herself and her three daughters, including the appellant, gifted their respective shares in the subject house to the respondent, and, submitted gift tax return along with a copy of the gift deed for the assessment of the gift tax---Appellant's challenge to the veracity and authenticity of the gift deed and power of attorney and her claim for a share in the subject house was, therefore, not sustainable---Suit filed by appellant was dismissed to such extent and appeal was disposed of accordingly.

(c) Gift---

---Essentials of---Scope---Dispute between daughter and son of deceased over inheritance share in agricultural land---Respondent (son of deceased) claimed that subject agricultural land was purportedly transferred by his deceased father's family in favour of respondent, through gift mutations---Appellant (daughter of deceased) claimed that gift mutations in question were forged and therefore she was entitled to her share in the agricultural land through her deceased-father; held, that respondent was required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased---Respondent had to prove all the essential ingredients of the gift independent of the gift mutations---Respondent was essentially required to prove that the donees had offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him---Respondent was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him, however, neither had the respondent divulged such details nor had he produced any person who witnessed the same---Respondent had failed even to prove the authenticity and veracity of the mutations and its attestation, as no one who allegedly witnessed the attestation of the mutations had been produced---Neither the Revenue Officer nor the Lumbardars or the other witnesses whose names found mention in the attestation, or those who participated in the relevant jalsa-e-aam/assembly had been produced by respondent---Respondent had also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of S. 42(7) of the Land Revenue Act, 1967---No valid gift of the subject land could be presumed in favour of respondent, therefore, he was liable to share the land with the appellant to the extent the appellant was entitled to inherit in accordance with Sharia---Supreme Court directed that respondent shall pay to the appellant the amount of mense profit in respect of her share in the land at the rate of Rupees eight thousand (Rs.8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share was delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months; that in addition to the amount of mense profit the respondent shall also pay to the appellant the amount of markup accrued thereon at the Bank rate on year to year basis and till the time the entire amount was paid---Appeal was disposed of accordingly.

Dr. Azeem Azhar Raja, Advocate High Court (Son), Dr. Aneeqa Azhar Raja, Advocate High Court (Daughter) for Appellant along with Appellant in person.

Ch. Khursheed Ahmed, Senior Advocate Supreme Court for Respondents Nos. 1 - 12.

Mian Muhammad Hanif, Advocate Supreme Court for Respondent No. 13.

Ms. Amber Gillani, AC Dina for Respondent No. 14.

M. Mtloob, Patwari for Respondents.

2018 S C M R 48

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

RAFIQ AHMED and others---Appellants

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and others---Respondents

Civil Appeal No. 587 of 2017 and C.M.A. No. 3198 of 2017, decided on 29th September, 2017.

(On appeal against the judgment of 14.03.2017 passed by the High Court of Balochistan, Turbat Bench of Quetta in C.P. No. (T) 94 of 2016)

Gwadar Development Authority Employees (Service) Regulations, 2006---

----Paras. 4.11, 4.24 & 4.25---Appointment by absorption---Legality---Appointment by absorption figured nowhere in the Gwadar Development Authority Employees (Service) Regulations, 2006---Appointment by transfer had been provided in the said Regulations but that could not be stretched to civil servants of the Federal or Provincial Government---Appellants, who completed their normal and even extended tenure of deputation in the (Gwadar) Development Authority ("the Authority"), had to go back to their parent department---Absorption of the appellants in the 'Authority' being against the law and rules was to be set at naught---Notification repatriating the appellants to their parent departments was therefore unexceptional---Supreme Court treating the appeal as review and hearing the same as such, dismissed the petition accordingly.

Contempt Proceedings Against Chief Secretary Sindh and others 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. 587 of 2017).

Amanullah Kanrani, A.-G. Balochistan and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court (in C.M.A. No. 3198 of 2017).

2018 S C M R 52

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

POSTAL LIFE INSURANCE (PLI), LAHORE---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Petition No. 1287-L of 2017, decided on 18th October, 2017.

(On appeal against the judgment dated 16.02.2017 of the Lahore High Court, Lahore passed in Insurance Appeal No. 13 of 2017)

Insurance Ordinance (XXXIX of 2000)---

----S. 171---Pakistan Postal Services Management Board Ordinance (CXXVI of 2002), Ss. 3(2) & 11(2)(e)---Insurance claim against Postal Life Insurance--- Insurance Tribunal, jurisdiction of--- Scope---Management Board of Postal Life Insurance (" the Board") was a body corporate, therefore, on the basis of its powers to manage, maintain, control and operate the postal insurance business, the case would fall within the purview of S. 171(2) of the Insurance Ordinance, 2000 and thus, the Insurance Tribunal shall have the jurisdiction to hear and decide the matter.

Sohail Mehmood, DAG along with Abdul Ghafar, Dir, PLI Multan and Dr. Akram Nawaz, Dir. PLI Lahore for Petitioner.

Liaqat Ali Butt, Advocate Supreme Court for Respondent No. 1.

2018 S C M R 54

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

MUHAMMAD SHARIF TAREEN, CHIEF OF SECTION (ACTING) (BPS-19), PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT---Appellant

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---Respondents

Civil Appeal No. 709 of 2017 in Civil Petition No. 1332 of 2017, decided on 25th September, 2017.

(On appeal against the judgment dated 14.03.2017 passed by the High Court of Balochistan Quatta in C.P. No. 1155 of 2016)

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

----R. 7--- Appointment by absorption--- Repatriation to parent department---Appellant was appointed as Agricultural Officer (BPS-17) by initial recruitment in the Balochistan Agricultural and Cooperative Department, and then absorbed against the post of Research Officer (BPS-17) in the Planning and Development Department without affecting the seniority of the Research Officers already working in the department---Plea on behalf of appellant that his case was not covered by the dicta rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752), Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain v. Federation of Pakistan (Crl. O. P. No.31 of 2016 decided on 10.05.2016), therefore, the notification repatriating him to his parent department could not hold the field; held, that the relevant service rules of the Provincial Planning and Development Department provided that vacancy of Research Officer was to be filled by initial recruitment, thus, there was no scope for filling such vacancy by promotion, transfer, absorption or by any other method which was not provided by the relevant law and rules---Appointment of appellant by absorption being hit by the judgments rendered in the cases of Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain v. Federation of Pakistan (Crl. O. P. No.31 of 2016 decided on 10.05.2016) could not be maintained---Appellant had thus rightly been repatriated to his parent department---Review petition was dismissed accordingly.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record (Absent) for Appellant.

Amanullah Kanrani, A.-G. Balochistan and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents.

2018 S C M R 64

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL JABBAR and others---Appellants

Versus

GENERAL MANAGER (PERSONNEL) PAKISTAN RAILWAYS and others---Respondents

Civil Appeals Nos. 17-K to 42-K of 2017, decided on 16th November, 2017.

(Against the consolidated order dated 26.8.2016 passed by the Federal Service Tribunal Islamabad in 94(K)CS/16 to 119(K)CS/16)

(a) Civil Servants (Appeal) Rules, 1977---

----R.4(1)---Appeal from an 'order' passed by an authority---"Order"---Scope---For preferring an appeal in terms of R. 4 of the Civil Servants (Appeal) Rules, 1977, there had to be an order altering, interpreting to a civil servant's disadvantage, reducing or withholding his maximum pension and allowances---In such grievances/proceedings no particular form of order was required and even pension fixation notices could be treated as an order for the purposes of availing the remedy of appeal under R. 4 of the Civil Servants (Appeal) Rules, 1977.

(b) Civil Servants (Appeal) Rules, 1977---

----Pensionary rights, claim for---Limitation---Grievance in respect of pensionary benefits was a recurring cause, consequently, limitation could not come in the way of such relief---Where, however, such pensionary benefit was altered or interpreted to the disadvantage of a civil servant or his pension was reduced or his maximum pension was withheld including an additional pension admissible to him under the rules then his grievance to that extent had to be regulated in terms of R. 4(1) of the Civil Servants (Appeal) Rules, 1977.

Chief Executive Progressive Paper Ltd./The Chairman National Press Trust, Islamabad v. Sh. Abdul Majeed 2005 PLC (C.S.) 1439 ref.

Muhammad Khalil Dogar, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants (in all cases).

Sanaullah Noor Ghouri, Advocate Supreme Court and Ms. Raana Khan, Advocate-on-Record for Respondents.

2018 S C M R 71

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Faisal Arab and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD SADDIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 298 of 2013, decided on 6th June, 2017.

(On appeal from the judgment dated 12.11.2012 passed by the High Court of Balochistan, Quetta in Crl. J. A. No. 9/09 and M.R. No.1 of 2009)

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

----Ss. 87, 88 & 512---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S. 5-A(4)---Trial in absentia---Evidence, recording of---Principles---When an accused was absconding, the Trial Court had to issue proclamation and attachment under Ss. 87/88, Cr.P.C.---When absconsion was established and proved on record, the Trial Court could proceed with the matter under S. 512, Cr.P.C. and record the evidence of all the witnesses which later on could be used against the accused in the circumstances provided in S. 512(1), Cr.P.C.---Same rule, however, would not apply where the accused was tried in absentia by a Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975---Basic difference between the two situations was that in the former case, only evidence in absentia was recorded under S. 512(1), Cr.P.C. which could be used against the accused in the circumstances as provided in S. 512(1), Cr.P.C. but the court could not record conviction after recording evidence in absentia (under S. 512, Cr.P.C.), whereas in the latter case, it was a full fledge trial of the accused in absentia under S. 5-A(4) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, and the court under said special law was empowered to record conviction of the accused in absentia.

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

----Art. 47---Evidence of witness recorded before his death used in subsequent proceedings, reliance upon---Scope---When a witness met a natural death or other circumstances as provided in Art. 47 of the Qanun-e-Shahadat Order, 1984 before recording his statement before the court, the evidence of such person earlier recorded in any judicial proceedings or before any person authorized under the law to record the same became relevant for the purpose of proving those facts but it should be between the same parties or their representatives and that person should have been cross-examined during such process.

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

----S. 342---Power of court to examine the accused---Incriminating evidence---Scope---Incriminating evidence must be put to accused in his statement under S. 342, Cr.P.C. otherwise the same could not be used against him.

Dr. Farhat Zafar, Advocate Supreme Court for Appellant.

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

2018 S C M R 76

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

Mst. YAWAR AZHAR WAHEED (DECEASED) through LRs.---Appellant

Versus

KHALID HUSSAIN and others---Respondents

Civil Appeal No. 800 of 2011, decided on 24th October, 2017.

(On appeal from the judgment dated 24.10.2007 passed by the Lahore High Court, Rawalpindi Bench in Civil Revisions Nos. 420/2006 and 430/2006)

Cantonments Act (II of 1924)---

----S. 179---Specific Relief Act (I of 1877), S. 54---Construction of commercial building on a residential plot in violation of the Cantonment Housing Scheme's master plan---Subject plot was initially allotted to person "M" with a condition mentioned in the allotment letter that it shall be used only for residential purpose and no other purpose---Person "M" sold the plot to the defendant, but in the registered sale deed, the condition of residential purpose was deleted---Subsequently defendant planned erection of a commercial building/school on the subject plot---Plaintiffs who were residents of the Cantonment area where the subject plot was situated filed a suit for permanent injunction against the defendant to prevent construction of the school---Said suit was decreed by the High Court; held, that the Cantonment Board approved the erection of new building for commercial purposes i.e. to run a school, by ignoring the initial condition imposed by itself that the plot shall not be used for any other purpose except a residential house---Once the master plan of a Cantonment Housing Scheme was notified and it was accepted by the purchaser of the plot and the Cantonment Board accepted the offer of purchaser and allotted the plot, thereafter, the Board was left with no authority to bring changes in the master plan, unilaterally because a binding contract came into existence---Suit filed by plaintiffs against the construction of school on the subject plot was fully justified because they were the residents of the same area, and if the school building was put into operation, it would create various problems for the area, including parking, pollution, sanitation and security problems---Supreme Court observed that the Cantonment Board through its reply illegally supported the cause of the defendant, which showed that it was bent upon to violate the law for monetary gains and to generate funds through illegal means---Supreme Court directed that copy of present judgment should be sent to the Attorney General and Secretary Defence who shall ensure that all the private educational institutions i.e. schools, colleges, etc. constructed in the Cantonments and all commercial buildings erected in residential areas of Cantonments throughout the country shall be removed gradually, having been constructed in violation of the law and rules as well as bylaws and the master plan and their original shape should be restored---Appeal was dismissed accordingly.

Ch. Abdus Sattar, Advocate Supreme Court assisted by Kh. Azhar Rashid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (Absent) for Appellant.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 4.

Nemo for Respondent No. 5.

Nemo for Respondent No. 6.

2018 S C M R 82

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

Haji SULTAN ABDUL MAJEED (DECD) through Mehboob Sultan and Habib Sultan and others---Petitioners

Versus

Mst. SHAMIM AKHTAR (DECD) through Mah Jabeen and others---Respondents

Civil Petition No. 2028 of 2017, decided on 13th October, 2017.

(On appeal against the judgment dated 08.06.2017 passed by the Lahore High Court, Lahore in Writ Petition No. 32872 of 2017)

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

----O. VI, R. 17---Plaint, amendment of---Alternative plea---Scope---Question as to whether proposed amendment would change complexion of the suit---Plaintiffs filed suit seeking declaration against the defendants that the execution of certain wills were the outcome of coercion and undue influence exercised by the widow of the deceased 'Sujjada Nasheen' of a durbar---During the pendency of the suit, the plaintiffs moved application under O. VI, R. 17, C.P.C. seeking amendment in the plaint by adding the plea that the disputed wills were forged and did not bear the signatures of the deceased---Defendants contended that the proposed amendment would change the entire complexion of the suit as the plaintiffs in their plaint had taken the stance that the disputed wills were the result of coercion and undue influence, thereby impliedly admitting that the same were executed by the deceased, but by way of proposed amendment they were now denying the very execution of the wills on the basis of forgery, which amounted to introducing an altogether new plea that was contradictory to the original pleas; held, that execution of the disputed wills was challenged basically on the ground that the deceased on account of his mental and physical health was not in a position to voluntarily execute such wills in a proper frame of mind---Only when the claim of the defendants surfaced on the basis of the disputed wills, the plea of undue influence and coercion was taken keeping in view his bad state of health but it could also give rise to the belief that even in a bad state of health (which was to be proved in evidence) the deceased may not have executed the wills himself and hence could be the result of forgery---By way of proposed amendment, all that the plaintiffs were seeking was verification of the signatures of the deceased on the disputed wills, therefore, it could not be considered to be a case of contradictory or mutually destructive pleas, which was being introduced through the proposed amendment---At best, it could be a plea in the alternative that could legitimately be taken in the circumstances of the case---Application of the plaintiffs for seeking amendment in the plaint was allowed---Appeal was allowed accordingly.

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

----O. VI, R. 17---Plaint, amendment of---Scope---Alternative plea---When a plea in the alternative could naturally arise and could co-exist with the main plea, which was not taken in the plaint at the time of filing of the suit then such a plea could be introduced by seeking amendment in the pleadings.

Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005 SC 787 ref.

Ms. Ayesha Hamid, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Qazi Zia Zahid, Advocate Supreme Court for Respondents Nos.1 - 5.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No. 2.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent No. 3.

2018 S C M R 87

[Supreme Court of Pakistan]

Present: Ejz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

NAWAB ALI WASSAN---Appellant

Versus

Syed GHOUS ALI SHAH and others---Respondents

Civil Appeal No. 1613 of 2014, decided on 7th June, 2017.

(Against the judgment dated 06.12.2014 of the Election Tribunal at Karachi, passed in Election Petition No. 10 of 2013)

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

----Ss. 68(1)(d), 69, 78(2) & 81(1)(a)(b)---Ground for declaring a person other than returned candidate elected---Corrupt or illegal practices and undue influence during election---Proof---Evidence of witnesses, reliance upon---Scope---Appellant and the respondent contested election for a National Assembly seat in the general election, and as per results announced, the appellant was declared the returned candidate from the constituency, and the respondent stood as the runner-up---Respondent challenged the election results through an election petition, which was allowed and the election of the appellant was declared void under S. 68(d) of the Representation of the People Act, 1976, and the respondent, being the runner-up, was declared elected under S. 69 of said Act; held, that evidence of witnesses who appeared on behalf of the respondent showed that none of them even incidentally referred to any of the polling stations regarding which respondent's petition contained allegations of corrupt practices and undue influence---Certain incident of violence as alleged by two of respondent's witnesses pertained to a polling station, which was not mentioned in any part of the election petition filed by the respondent---Moreover neither the doctor who purportedly issued the injury/medical certificate for the injured witnesses was produced nor was the photographer who took photographs of the injured---Oral evidence of respondent's witnesses could not be accepted at face value, unless the same was vouched and supported by unimpeachable documentary and/or circumstantial evidence---Evidence recorded on behalf of respondent did not at all prove that the appellant indulged in any corrupt practice or resorted to any undue influence to procure his success in the election---No case was made out for declaring the appellant's election void and or declaring the respondent as elected in terms of S. 69 of the Representation of the People Act, 1976---Impugned order of Election Tribunal was set-aside accordingly.

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

----S. 68(1)(d)---Ground for declaring election of returned candidate void---Corrupt practices during election---Proof---Standard of---Charge of corrupt practices was in the nature of a criminal charge and had to be proved beyond any shadow of doubt---Standard of proof required for establishing such charge was the same as was applicable to a criminal charge---Evidence should be absolutely credible by the standards of the appreciation applicable to criminal cases and should be able to stand the test of strict and scrupulous scrutiny.

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

----S. 55(1)(b)---Election petition, contents of---Scope---Allegation of corrupt practices during election---Party seeking to challenge the validity of an election should essentially specify in the election petition the incident(s) of corrupt practice with as much precision as was possible and with all necessary details and particulars---No fresh charge or incident could be introduced during the trial---Evidence in proof of the alleged corrupt practices was to be restricted to the instances as set out in the petition, and in order to succeed, the petitioner had to prove such ingredient of the corrupt practice alleged, affirmatively---Statement of allegations contained in the petition should, therefore, be precise and should clearly contain all the necessary details as required in terms of S. 55 of the Representation of the People Act, 1976.

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

----Ss. 68(1)(d) & 69---Ground for declaring a person other than returned candidate elected---Corrupt or illegal practices during election---Forensic analysis of thumb impressions appended to counterfoils of ballot papers---Said analysis showed that only in respect of 229 counterfoils the fingerprints failed authentication---Fingerprints which could not be deciphered due to use of poor quality/inappropriate ink were 99752, however such counterfoils did bear valid Computerized National Identity Card (CNIC) numbers of the voters---In view of the fact that the difference of votes between returned-candidate and runner-up candidate was 25328 votes, the forensic analysis report did not adversely affect the success of the returned-candidate in the election---No case was made out for declaring the returned-candidate's election void and or declaring the runner-up candidate as elected---Appeal was allowed accordingly.

Farooq H. Naek, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

2018 S C M R 95

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

HAQ NAWAZ and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 69-L of 2015 and Criminal Petition No. 502-L of 2017, decided on 23rd October, 2017.

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 19.03.2014 passed in Criminal Appeal No. 63 of 1997 and Order dated 06.03.2017 passed by the Lahore High Court, Multan Bench in Criminal Misc. No. 393-M of 2016)

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Prosecution case depended on the statement of a witness who claimed to have not only heard the conspiracy to murder the deceased but also allegedly saw the accused and co-accused strangle the deceased to death---Fact that the accused and co-accused allowed the witness to hear out the alleged conspiracy of committing murder and be a witness against them did not appeal to a prudent mind---Even if it was admitted that the witness was allowed to hear out the conspiracy being hatched, then as per the witness's own stance, she slept between 8 pm - 9 pm, therefore it was not understandable how she came to know of the alleged conspiracy being hatched by the accused and co-accused between 9.00 p.m. to 12.00 midnight when she was already sleeping---Witness in question claimed that she witnessed the murder by peeping over a wall, but it was hard to believe why the accused and co-accused would let the witness go when she not only heard out the conspiracy but also witnessed the crime---After the occurrence witness remained at her parent's house for a period of 14 days but she did not tell anybody about the occurrence, and no explanation was given for such non-disclosure---Witness admitted before the Trial Court that her statement was recorded by the police after about two months of the occurrence---Witness in question admitted in her cross-examination that the relations between her family and that of the accused were not cordial---In such backdrop, the testimony of the witness did not inspire confidence---Prosecution was unable to prove its case against the accused and co-accused beyond reasonable doubt---Accused and co-accused were acquitted of the charge of murder in such circumstances.

Mushtaq Ahmad Mohal, Advocate Supreme Court for Appellants (in Crl. A. No. 69 of 2015).

Rai M. Tufail Khan Kharal, Advocate Supreme Court for Petitioners (in Crl. P. No. 502 of 2017).

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

2018 S C M R 139

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

FAREED and others---Appellants

Versus

MUHAMMAD TUFAIL and another---Respondents

Civil Appeal No. 410-L of 2009, decided on 21st November, 2017.

(On appeal from the judgment/order dated 27.4.2009 of the Lahore High Court, Multan Bench, Multan passed in C.R. No.682-D/95)

(a) Gift---

----Proof---Exclusion of legal heir---Effect---Donee claiming under a gift that excluded an heir, was required by law to establish the original transaction of gift irrespective of whether such transaction was evidenced by a registered deed--- Gift deed must justify the disinheritance of an heir from the gift.

Kulsoom Bibi v. Muhammad Arif 2005 SCMR 135; Ghulam Haider v. Ghulam Rasool 2003 SCMR 1829 and Barkat Ali v. Muhammad Ismail 2002 SCMR 1938 ref.

(b) Gift---

----Possession---Mere transfer of possession to donee was not sufficient to constitute a valid gift under the law.

M.A. Ghaffar-ul-Haq, Advocate Supreme Court for Appellants.

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

Ex parte for Respondent No. 2.

2018 S C M R 141

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

MUHAMMAD AJMAL and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 765 of 2016, decided on 2nd November, 2017.

(On appeal from the judgment dated 19.5.2016 passed by the Lahore High Court, Bahawalpur Bench in Crl. Misc. No. 15-Q of 2015-BWP)

Criminal Procedure Code (V of 1898)---

----S. 193---Qanun-e-Shahadat (10 of 1984), Arts. 132, 133 & 161---Penal Code (XLV of 1860), S. 302---Transfer of case by Magistrate to Court of Session--- Evidence, recording of---Procedure---Accused persons were alleged to have inflicted injuries on the deceased---Deceased remained under treatment and died almost one year after the occurrence---Judicial Magistrate before commencement of trial and recording prosecution evidence, recorded the statement of the medical expert, whose name was mentioned in the challan---Examination-in-chief of said medical expert was recorded, wherein he opined that keeping in view the operation notes of the neuro-surgeon, X-ray and CT-scan, the injuries caused to the deceased were sufficient to cause his death in ordinary course of life---No right of cross-examination of medical expert was given to the accused persons and the Magistrate came to the conclusion that prima facie offence under S. 302, P.P.C. was attracted and being exclusively triable by the Court of Session, the case file was forwarded to the Sessions Court under S. 193, Cr.P.C.---Legality---Mode and manner adopted by the Magistrate in examining the medical officer on the point of cause of death of the deceased, was completely alien to the law of evidence and Criminal Procedure Code, 1898---After commencement of trial the Magistrate could not record the statement of medical expert in the manner he had adopted---Under Art. 161 of the Qanun-e-Shahadat, 1984 the Court had unlimited powers to put questions in order to discover or to obtain proper proof of relevant facts however, such power was directed only to achieve that object alone enabling the court to reach at a just conclusion---Such power exclusively related to the phase when the trial had already commenced and the witness(es) were examined by the party calling it, and cross-examined by the adverse party---In the present case, however, the Magistrate wrongfully assumed such jurisdiction at a pre-trial stage and only recorded examination-in-chief of the medical expert and then questions were put to him by the Court without adopting the procedure as essentially required by Arts. 132 & 133 of the Qanun-e-Shahadat, 1984---Impugned order of the Magistrate was set aside and the case was remanded to the trial Magistrate to hold trial in accordance with law.

Muhammad Sharif Bhatti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Complainant in person.

M. Jaffar, DPG, Punjab for the State.

2018 S C M R 149

[Supreme Court of Pakistan]

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

NADEEM RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 101 of 2015, decided on 14th November, 2017.

(Against the judgment dated 19.02.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 85-J of 2010 and Murder Reference No. 206 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Site-plan of the place of occurrence showed that the incident in issue had taken place inside the house of the complainant party in a thickly populated area---Occurrence took place in broad daylight and FIR in respect of the same had been lodged with sufficient promptitude wherein the accused was nominated as the sole perpetrator of the alleged murder---Ocular account of the incident had been furnished before the Trial Court by two eye-witnesses who were the husband and a brother-in-law of the deceased who resided in the same house with the deceased---Said eye-witnesses were inmates of the house wherein the occurrence had taken place and, thus, were nothing but natural witnesses---Accused was also closely related to the said eye-witnesses as well as to the deceased and, thus, the present case could not be a case of a mistaken identity---Consistent ocular account furnished by the eye-witnesses had received full support from the medical evidence inasmuch the date and time of occurrence, the weapon used and the locale of the injuries stated by the eyewitnesses had all been confirmed by the medical evidence---Accused had been rightly convicted under S. 302(b), P.P.C---Appeal to the extent of conviction of accused under S. 302(b), P.P.C. was dismissed accordingly.

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

---S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Mitigating circumstances---Motive not proved---Motive set up by the prosecution was that the accused killed the deceased as he suspected her to have caste magic on his sister because of which she became mentally ill---Said motive had not been established by the prosecution---Even the investigating officer of the case had failed to collect any material in support of the asserted motive---Lady who had statedly fallen mentally ill because of application of magic on her by the deceased had not even been examined by the investigating agency nor any investigation had been conducted in such regard---Motive asserted by the prosecution had, thus, remained far from being proved---During the investigation a dagger had allegedly been recovered from the custody of the accused but it was admitted that the recovered dagger was not stained with blood and, hence, the same did not stand connected with the alleged murder---In the absence of proof of the asserted motive the real cause of occurrence had remained shrouded in mystery and thus caution was to be excercised in the matter of the sentence of death awarded to accused---Sentence of death awarded to accused was reduced to imprisonment for life in circumstances---Appeal was disposed of accordingly.

(c) Criminal trial---

----Cross-examination---Principles---Principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases---Criminal case was to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him.

S. Mahmood Alam Shah v. The State PLD 1987 SC 250 ref.

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

----S. 302(b)---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive---Where the prosecution asserted a motive but failed to prove the same then such failure on the part of the prosecution may react against sentence of death passed against convict on a capital charge.

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; 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.

Ms. Aisha Tasneem, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

2018 S C M R 153

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

NADEEM alias KALA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 132-L of 2015, decided on 25th October, 2017.

(On appeal from the judgment of the learned Lahore High Court, Lahore dated 28.03.2008 passed in Crl. Appeal No. 107 of 2004 and Crl. Appeal No. 107-J of 2004 and Crl. Revision No. 51 of 2004)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Case was lodged about three days after the occurrence despite the fact that distance between the place of occurrence and the police station was just one kilometer whereas the hospital where the deceased was treated was about 1-1/2 kilometers from the spot---Inordinate delay of three days in setting the machinery of law in motion was not explained---Chances of deliberations and consultations on the part of the complainant for false implication of the accused could not be ruled out---Presence of both the witnesses of ocular account at the place of occurrence was also not free from doubts---During cross-examination the complainant stated that deceased in injured condition was shifted to hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle---Complainant also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the police---Both the witnesses of ocular account contradicted each other regarding arrival of the police at the place of occurrence---Medical evidence was not in line with the ocular account---Recovery of pistol at the instance of the accused was inconsequential because report of Forensic Science Laboratory was not put to him while examining him under S. 342, Cr.P.C.---Motive behind the occurrence was rightly disbelieved by the Trial Court and the High Court---Accused was acquitted of the charge of murder in circumstances---Appeal was allowed accordingly.

Nemo for Appellant.

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

Ch. Muhammad Rafiq Jathol, Advocate Supreme Court for Respondent No. 2.

2018 S C M R 157

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

ABDUL GHAFOOR and others---Petitioner/Applicant(s)

Versus

The PRESIDENT NATIONAL BANK OF PAKISTAN and others---Respondents

Civil Petition No. 3724 of 2015 and C.M.As. Nos. 7903 of 2016, 3473 and 4154 of 2017, decided on 8th November, 2017.

(Against judgment dated 26.10.2015 of the Balochistan High Court, Quetta passed in C.P. No. 201 of 2012)

Employer and employee---

----'Contract employee'---Regularization in service as 'permanent employees'--- "Contractor"--- Scope--- Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contracts executed directly between them and the bank for different spans of 11 months, from time to time---Services rendered and work performed by the petitioners was of a permanent nature---Like any other employee or worker, the petitioners were rendering manual services for the Bank---Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors"---Bank could not be allowed to exploit its workers and defeat the spirit and purpose of law by calling such workers as "contractors" instead of "contract employees" and "contract employment"---Since the petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/ compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank---Supreme Court directed the bank to regularize the services of the petitioners as permanent employees---Appeal was allowed accordingly.

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance), Telephone Industries of Pakistan and others 2015 SCMR 1257 and Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100 ref.

Shoaib Shaheen, Advocate Supreme Court and Nazir Ahmed Bhutta, Advocate Supreme Court for Petitioner/Applicant(s) (in C.M.A. No. 3473 of 2017).

M. Rashid Qamar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

2018 S C M R 162

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

Raja IVIZ MEHMOOD and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary M/o Information Technology and Telecommunication and others---Respondents

Civil Petition No. 931 of 2017, Civil Petition No. 1657 of 2017 and Civil Petition No. 1659 of 2017, decided on 7th November, 2017.

(On appeal against the order dated 28.02.2017 passed by the Islamabad High Court, Islamabad in I.C.As. Nos. 363, 323 and 324 of 2014)

(a) Pakistan Telecommunication (Re-organization) Act (XVI of 1996)---

----S. 36(2)---Master-servant, relationship of---Scope---Termination from service---Petitioners, who were employees of Telegraph and Telephone Department (T&T Department), were transferred to Pakistan Telecommunication Company Limited ("Company")---Company gave petitioners the option to tender their resignation as "transferred employees" and opt for a "Key Talent" package which offered much higher salaries and benefits---Petitioners tendered their resignations, executed fresh "employment contracts" under the "Key Talent" package and accepted the "new terms and conditions"---Company, after two years, terminated the employment of the petitioners in terms of their employment contracts---Petitioners argued that the terms and conditions of their service were protected by S. 36 of the Pakistan Telecommunication (Re-organization) Act, 1996, and that they could not have opted out of a protection provided to them by law, even if, they wanted to; that the share purchase agreement for the sale of the Company to a foreign buyer provided that the employees of the Company were entitled to protection of their terms and conditions of service and that the same could not be altered or modified to their detriment; held, that the petitioners opted for the "Key Talent" package, voluntarily tendered their resignations, signed fresh employment contracts and were granted employment under the "new terms and conditions"---Admittedly, petitioners received enhanced pecuniary benefits and rendered services in their respective capacities for more than two years---From the time of acceptance of the "new terms and conditions" and till termination of their respective contracts, none of the petitioners lodged any protest or raised any objection that they had been forced to tender their resignations or execute fresh contracts and accept "new terms and conditions" of contract---Petitioners performed their services under the new scheme without protest or demur---Petitioners had consciously and with full awareness and application of mind executed fresh contracts of service and accepted all its terms and conditions including severing their earlier relationship with the Company---Such conscious decision was made in consideration of a much higher salary among other benefits which was admittedly much better than the one they were receiving at that time---By their acts and deeds both the parties clearly and categorically expressed their understanding and intention that the earlier relationship of employer and employee stood terminated, and that the petitioners were in a new contractual relationship with the Company---Once the petitioners opted to tender their resignations for opting the new package their existing status as transferred employees and the protection and safeguards available to such employees (except the safeguard of pension) came to an end---New employment contracts represented a fresh arrangement based upon the principle of 'Master and Servant' and their service was governed by the terms and conditions of their fresh contract---Protection under S. 36(2) of the Pakistan Telecommunication (Re-organization) Act, 1996 as well as the sale agreement between the Company and its foreign buyer could not therefore be extended to the petitioners because now their relationship with their employer was governed by the principle of 'Master and Servant' on the basis of the terms and conditions of their new contract---Even otherwise, having voluntarily accepted an offer made by the employer-Company and the same having been acted upon by both the sides, the petitioners were estopped from resiling from the same---Services of petitioners were terminated in terms of their new employment contracts with the Company---Petition for leave to appeal was dismissed accordingly.

(b) Master/servant---

----Termination from service---Discrimination---Proof---Right and discretion of the employer regarding the quality and quantity of the employees that it wished to retain or rehire could not lightly be interfered with in the absence of clear proof of mala fides and a systematic and conscious effort to discriminate.

Petitioner in person (in C.P. 931 of 2017).

Muhammad Afzal Kharral, Petitioner in person (in C.Ps. Nos.1657 and 1659 of 2017).

Zulfiqar Khalid Maluka, Advocate Supreme Court for PTCL.

2018 S C M R 169

[Supreme Court of Pakistan]

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

TAHIR MEHMOOD @ ACHOO---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 87 of 2015, decided on 13th November, 2017.

(On appeal from the judgments dated 21.11.2014 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 136 of 2013)

Penal Code (XLV of 1860)---

----Ss. 302(b), 353 & 186---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, act of terrorism---Reappraisal of evidence---Sentence, reduction in---Suppression of facts by prosecution and defence---Accused was alleged to have murdered a police constable in order to avoid arrest---'Moharar' of the relevant police station deposed that in the daily diary of the police station, deceased police constable was assigned the duty of watch and guard of the police lock up and was not initially shown on patrol duty as was claimed by another police official in the 'Murasla' report---Inquest report, recovery memo and the site plan of the crime scene showed that no service rifle had been shown with the dead body of the deceased constable nor was it secured from the spot or elsewhere---Logical conclusion that could be drawn in such circumstances was that the deceased constable after slipping away from his place of duty inside the police station, around or after midnight visited the area not in performance of his official duty but it was for undesirable or detestable purpose---Each and every circumstance of the present case, led to an inference that the deceased was killed when he was found in the house of the accused and when he made his exit there-from, he was chased and fired upon at the crime spot---Accused had not revealed the true story probably due to family honour---Arrest of the accused by private persons also raised serious doubts because it was not understandable as to how he managed his escape while encircled by a well armed police contingent---Injured prosecution witness, who was a passer-by, and got caught up in the firing, did not not charge the accused for causing him firearm injury and squarely stated that he did not see as to who fired at him because of fog and pitch darkness---Section 7, Anti-Terrorism Act, 1997, in circumstances, was not attracted at all---No question arose that the deceased constable was prevented from discharging his official duty, therefore, the conviction of the accused under Ss. 353 & 186, P.P.C. was equally not tenable under the law---Convictions and sentences awarded to the accused under S. 7, Anti-Terrorism Act, 1997 and under Ss. 353 & 136, P.P.C. were set aside and he was acquitted of said charges---Sentence of death awarded to accused under S. 302(b), P.P.C was reduced to imprisonment for life in view of the fact that both parties had supressed material facts from the court---Appeal was partly allowed accordingly.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

M. Jaffar, D.P.-G., Punjab for the State.

2018 S C M R 325

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Maqbool Baqar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, DG KHAN and another---Petitioners

Versus

MUHAMMAD ALTAF and others---Respondents

Civil Petition No. 4299 of 2017, decided on 30th November, 2017.

(Against judgment dated 22.9.2017 of the Lahore High Court, Multan Bench passed in I.C.A. No. 332/2017)

Civil service---

----Daily wage employees---Regularization in service---Respondents had been employed by the petitioner-Education Board on daily wages for a considerable period of time---Employment contracts of respondents were terminated after every 89 days and were resumed a day thereafter---All the respondents had served the petitioner-Board for not less than nine months, however with artificial breaks, to break the continuity of their service with mala fide intent to avoid their regularization---Despite the fact that services of respondents had matured and they were under the law required to be regularized, the petitioner-Board contemplated to make fresh appointments through advertisement---High Court had rightly regulairzed the services of the respondents with the petitioner-Board---Petition for leave to appeal was dismissed accordingly.

Mehboob Azhar Sh., Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2018 S C M R 326

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

ZAFAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 244-L of 2009, decided on 26th May, 2017.

(On appeal from the judgment of the Lahore High Court, Lahore dated 17.06.2009 passed in Crl. A. No. 202-J of 2004 and Crl. Revision No. 264 of 2002)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Matter was reported to the police after five hours and thirty minutes of the occurrence, whereas the postmortem on the dead body of deceased was conducted after 11 hours of the occurrence---Distance between the place of occurrence and the police station was only nine miles---No explanation whatsoever has been given by the complainant and alleged eye-witness in the FIR or while appearing before the Trial Court qua the delay in lodging the FIR and the belated postmortem of the deceased---Conduct of the witnesses of ocular account was against normal human conduct because they allegedly witnessed the murder of their father but did not make even an abortive attempt to catch hold of the accused and his co-accused particularly when the accused fled away---Had they been present at the relevant time, they would not have waited for the murder of their father and would have raised alarm the moment they saw the accused and his co-accused standing near their father---Besides, the co-accused was acquitted by the Trial Court on the same set of evidence which had been believed qua the role of the accused---Neither the complainant nor the State preferred any appeal against the acquittal of co-accused, and in such circumstances, when the injuries on the person of deceased qua acquitted co-accused had been disbelieved by the Trial Court and the prosecution felt content with his acquittal, question was as to how role of the accused in absence of any strong and independent corroboration could be believed---Complainant had alleged a specific motive that his deceased father employed the accused and gave him some advance money but he ran away, whereafter, his father forcibly brought him back and insulted him--- On account of such grudge, the accused along with his co-accused committed the murder of the deceased---Complainant, in his cross-examination, stated that the advance amount was not given in his presence nor any written document was executed in such regard---Moreover both the witnesses had not mentioned in their statements before the Trial Court the names of those persons before whom the deceased had insulted the accused nor any one from the village had been produced by the prosecution to substantiate such allegation---Accused was arrested after more than one year and eight months of the occurrence and the weapon recovered at the instance of accused was bloodstained and rusty by then, therefore, such evidence was of no help to the prosecution---When the presence of the eyewitnesses at the place of occurrence at the relevant time was doubtful, no reliance could be placed on the supportive/corroborative pieces of evidence to convict the accused on a capital charge---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Accused was acquitted of the charge in circumstances.

Ch. Abdul Ghaffar, Advocate Supreme Court for Appellant.

Ghulam Farid Sanotra, Advocate Supreme Court for the Complainant.

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

2018 S C M R 332

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

TIKKA KHAN and others---Petitioners

Versus

Syed MUZAFFAR HUSSAIN SHAH and others---Respondents

Civil Petitions Nos. 3577 to 3583 and 3889 to 3895 of 2016, decided on 19th April, 2017.

(On appeal against the judgment dated 20.10.2016 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 1778(R)CS/2015 to 1783(R)CS/2015 and 2095(R)CS/2015)

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

----Rr. 4 & 4-A---Seniority on transfer from one office to another---Civil servants transferred from one Ministry to another after abolishment of the former---Numerous Ministries were abolished and reorganized in the wake of a Constitutional amendment and the respondents being the employees of an abolished Ministry were transferred to a re-organized Ministry---Case of the respondents was, thus, not one of appointment by transfer or absorption or appointment on deputation in the re-organized Ministry---Transfer of the respondents to the re-organized Ministry, therefore, could not be seen through the prism of R. 4 of the Civil Servants' (Seniority) Rules, 1993---Respondents' case was more akin to R. 4A of the Civil Servants' (Seniority) Rules, 1993 and was fully covered by Serial No.33(6) of Estacode, Vol-I, Edition 2007---No cannons of interpretation would scratch or strike off past service of the respondents when they on abolition of the Ministry, were compulsorily transferred to the re-organized Ministry---Past service of the respondents had to be respected and recognized for determining their seniority, and it would, thus, be unfair and unjust to treat the respondents junior to the junior most civil servants in the re-organized Ministry---Petition for leave to appeal was dismissed accordingly.

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sh., Advocate-on-Record (Absent) for Petitioners (in C.Ps. 3577-3583 of 2016).

Syed Nayyab Hassan Gardezi, Standing Council and Faiz-ur-Rehman, Advocate-on-Record (Absent) for Petitioners (in C.Ps. 3889-3895 of 2016).

Nemo for Respondents.

2018 S C M R 335

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

TARIQ IQBAL and others---Petitioners

Versus

DG MILITARY LAND AND CANTOMENTS DEPARTMENT MINISTRY OF DEFENCE and others---Respondents

Civil Petitions Nos. 382-K to 385-K of 2017, decided on 14th December, 2017.

(Against the consolidated Order dated 1.6.2017 passed by the High Court of Sindh in C.Ps. Nos. D-5661/14, 4531/14, 4532/14, 5468/14, 4790/13 and 7751/15)

Pakistan Cantonments Servants Rules, 1954---

----R. 5(i)---Employees of Cantonment Board---Transferable posts---Director General of Military Lands issued a letter in terms of R. 5(1) of the Pakistan Cantonment Servants Rules, 1954, declaring that the employees of Cantonments Boards in BS-5 and above who were presently in non-transferable categories be placed in the transferable categories and could be transferred throughout the country---Pakistan Cantonment Servants Rules, 1954 were duly published in accordance with law and no change in the said rules had been questioned nor it had been brought to the notice of the court---Transferred employees/petitioners also never challenged the vires of R. 5 of the Pakistan Cantonment Servants Rules, 1954---Petition for leave to appeal was dismissed accordingly.

M. Shafi Muhammadi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners (in C.Ps. 384 and 385 of 2017).

Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners (in C.P. 383 of 2017).

Petitioner in person (in C.P. 382 of 2017).

Muhammad Umer Riaz, Advocate Supreme Court and Sohail H.K. Rana, Advocate Supreme Court for Respondent No.3 (in C.P. 382 and 383 of 2017).

Muhammad Iqbal Ch., Advocate-on-Record for Respondent No.3 (in C.P. 384 of 2017).

2018 S C M R 344

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Manzoor Ahmed Malik, JJ

IMTIAZ alias TAJ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 88-L of 2009, decided on 26th December, 2017.

(Against the judgment dated 13.11.2008 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1581 of 2005 and Murder Reference No. 582 of 2005)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Benefit of doubt---Four co-accused of the accused attributed effective firing at and specific injuries to the deceased had been acquitted by the Trial Court---No independent corroboration to the ocular account furnished by two prosecution eye-witnesses was forthcoming---Place of occurrence was an open field in an uninhabited area, and according to the FIR the occurrence had taken place at about 05.30 a.m. whereas the medical evidence did not rule out the possibility that actually the occurrence had taken place around midnight---Both the eye-witnesses produced by the prosecution, were not only real brothers of deceased but they were also chance witnesses who had failed to explain and establish the reason for their presence with the deceased at the time of occurrence---After sustaining firearm injuries the deceased allegedly reached the health center on his own, which was situated about 17 kilometers away from the scene of the crime---Medico-legal Certificate did not disclose that the eye-witnesses were accompanying the deceased when he had presented himself before the concerned doctor after the occurrence---One of the firearm injuries received by the deceased was on his buttock which had also made an exit wound from the deceased's waist and with such firearm injury it was almost impossible for the deceased to walk for a distance of about 17 kilometers so as to present himself for medical examination---Furthermore according to the prosecution a firearm had been recovered from the custody of accused during the investigation but a positive report statedly received from the Forensic Science Laboratory in respect of the said firearm had not been put to the accused at the time of recording of his statement under S. 342, Cr.P.C.---Motive alleged by the prosecution had been discarded and disbelieved by the Trial Court and the High Court had failed to record any reason for observing that the motive asserted by the prosecution had been established by it---Cases which, according to the prosecution, were being pursued by the deceased against the accused party did not show the accused to be directly connected with the said cases and, thus, the said motive could not to be considered against the accused for the purpose of providing corroboration to the ocular account---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside and he was acquitted of the charge of murder by extending the benefit of doubt to him---Appeal was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Eye-witnesses, evidence of---Corroboration---When the eye-witnesses had been disbelieved against some accused persons attributed effective roles then the same eye-witnesses could not be believed against the co-accused attributed a similar role unless such eyewitnesses received independent corroboration qua the co-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 and Akhtar Ali v. The State 2008 SCMR 6 ref.

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

----S. 342---Examination of accused by the court---Scope---Piece of evidence or a circumstance not put to an accused person at the time of recording his statement under S. 342, Cr.P.C. could not be considered against him.

(d) Criminal trial---

----Acquittal--- Effect upon non-appealing co-convict--- Benefit of acquittal of a convict could be extended to a non-appealing co-convict if the circumstances of the case so warranted.

Shabbir Ahmed v. The State 2011 SCMR 1142 ref.

Shahid Azeem, Advocate Supreme Court for Appellant.

M. Shafique Bhandara, Advocate Supreme Court for the Complainant.

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

2018 S C M R 349

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

SECRETARY, AGRICULTURE GOVERNMENT OF THE PUNJAB, LAHORE and others---Petitioners

Versus

MUHAMMAD AKRAM---Respondent

Civil Petition No. 3244-L of 2016, decided on 13th April, 2017.

(Against the order dated 06.09.2016 of the Lahore High Court, Bahawalpur Bench passed in W.P. No. 1508/2015 BWP)

Civil service---

----Pensionary benefits, entitlement to---Legitimate expectancy, doctrine of---Scope---Illegal adjustment of a civil servant in a post---Fault of senior appointing authority---Whilst the respondent was working as a senior clerk in a Market Committee, the Director General Agriculture, through an order created a post of Accountant (BS-11), in the office of Market Committee to adjust the respondent---Post of senior clerk held by the respondent was abolished, and the respondent commenced his work as an accountant---Creation of the post specifically for the benefit of, and to "adjust" the respondent was illegal, and at the relevant time respondent had not attained promotion to be able to hold the post of an accountant; however, the fact remained that the respondent had, in pursuance of the (unlawful) order, served as an accountant for about 18 years, and his name also found place in the list of accountants---No allegation was made against the respondent that he manoeuvred his way up, or was in any manner instrumental in his being posted as an accountant---Since his posting as Accountant till the date of his retirement, it was never alleged that during such period of almost 18 years he had failed to discharge his duties as an Accountant to the satisfaction of his superiors or there was any complaint regarding his conduct and performance---Employment and retirement benefits were neither a bounty nor largess, but the same had to be earned by performing the assigned job, and discharging the prescribed duties, which criteria the respondent had fully met to the satisfaction of his superiors/employers---As there was no fault of the respondent in being appointed as an Accountant, it would therefore be wholly unjust and unfair if he was made to suffer for the follies and indolence of his superiors, after a lapse of more than 18 years---Respondent having been notified as an Accountant and having served as such for more than 18 long years, could not now be denied his perks and privileges as such---Payment of such perks, privileges and benefits was also protected under the doctrine of legitimate expectancy, as in the circumstances the respondent was wholly justified in expecting such payments---Petition for leave to appeal was dismissed accordingly.

Ms. Aasma Hamid, Additional A.-G. Punjab for Petitioners.

Nemo for Respondent.

2018 S C M R 354

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Maqbool Baqar, JJ

ALI BUX and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 16-K of 2016, decided on 6th December, 2017.

(Against the judgment dated 11.05.2016 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 166 of 2015 and Confirmation Case No. 04 of 2015)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Occurrence in the case had taken place in broad daylight and at a place whereat the same could have been seen by many persons available around the place of occurrence---Information about the said occurrence had been provided to the police on telephone within fifteen minutes of the occurrence---Present accused persons had been nominated in the FIR and specific roles had been attributed to them therein---Ocular account of the incident had been furnished before the trial court by three eye-witnesses who had made consistent statements and had pointed their fingers towards the present accused persons as the main perpetrators of the murder---Said eye-witnesses had no reason to falsely implicate the accused persons in a case of present nature and the medical evidence had provided sufficient support to the ocular account furnished by them--- Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the accused persons having been established to the hilt---Conviction of accused under Ss. 302(b) & 34, P.P.C. was maintained accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Death sentence reduced to imprisonment for life---Mitigating circumstances---Motive unproved---Motive set up by the prosecution was quite weak and it had not even been proved---According to the prosecution about 6/7 years prior to the present occurrence the accused party had suspected that deceased had murdered one of their relatives and despite taking of an oath by deceased on the Holy Quran maintaining his innocence in the matter the accused party did not feel satisfied---During the ensuing 6/7 years no untoward incident had taken place between the parties---Alleged motive was only based upon a suspicion which too stood removed through an oath on the Holy Quran taken by the deceased---No independent evidence was available on the record that the grudge against the deceased still continued unabated---Furthermore nothing had been recovered from the custody of accused and although a firearm had allegedly been recovered from the custody of co-accused during the investigation yet the record of the case showed that the crime-empties secured from the place of occurrence had been sent to the Forensic Science Laboratory after the arrest of co-accused which factor denuded the alleged recovery of its evidentiary worth---According to the prosecution four accused persons including the present accused had effectively fired at the deceased on different parts of his body and the statement made by the concerned doctor showed that no particular injury sustained by the deceased had been declared by the doctor to be fatal---Question as to which of the culprits had caused the fatal injury to the deceased remained unclear---Sentences of death passed against the accused persons were reduced to imprisonment for life in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Motive--- Sentence, reduction in---Mitigating circumstances---Where the prosecution asserted a motive but failed to prove the same then such failure on part of the prosecution may react against sentence of death passed against a convict on a capital charge.

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 @ 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.

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

----S. 302(b)--- Qatl-i-amd--- Sentence, reduction in--- Mitigating circumstances---Fatal injury, cause of---Sentence of death may ordinarily be withheld where it was not clear from the record as to which of the culprits had caused the fatal injury to the deceased.

Muhammad Latif and another v. The State 1984 SCMR 284; Saee and others v. The State 1984 SCMR 1069; Allah Dad and another v. The State 1995 SCMR 142; Muhammad Younis v. Ashiq Hussain and others PLD 2007 SC 217; Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 ref.

Mehmood A. Qureshi, Advocate Supreme Court for Appellants.

Mrs. Dr. Raana Khan, Advocate-on-Record for the Complainant.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

2018 S C M R 359

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

IQBAL PERVAIZ and others---Appellants

Versus

HARSAN and others---Respondents

Civil Appeals Nos. 45-K to 58-K of 2017, decided on 11th December, 2017.

(On appeal against the judgment dated 25.4.2016 passed by the High Court of Sindh, Circuit Court, Hyderabad in Civil Revision Applications Nos. 79 to 92/2010)

(a) Review---

----Scope---Once a case was finally decided, the court became functus officio---Only provision which allowed changes in the final order was the provision of review, scope of which was limited to correcting an error that was floating on the face of the record---To have a second opinion of the findings reached in the final order by the same court was not permissible while exercising power of review---Such power laid solely with the higher forum.

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

----S. 8--- Suit for possession--- Purported allotment/grant of Government land---Failure to establish essentials of a grant---Plaintiffs/appellants claimed that the disputed survey number, along with other survey numbers, were allotted by Barrage Department to their predecessor-in-interest and in this regard transfer order was issued; that mutation of the disputed survey number was also affected in the revenue record, and that in such manner the title of the disputed survey number now stood in the names of the plaintiffs---Respondents, who were all part of a community, denied that disputed survey number was ever granted to the predecessor-in-interest of the plaintiffs and contended that Form-A did not contain such a grant and the mutation entries were bogus, and that over a century ago their forefathers established a village on the disputed survey number which now comprised of several houses of their community as well as a place of worship; held, that plaintiffs' own witness, categorically admitted that the disputed survey number was not mentioned in Form-A, which was the principal document which established grant of land by the government---When the original Form-A admittedly did not contain disputed survey number and some other Form-A was attempted to be introduced by the plaintiffs to establish their claim to the disputed survey number, the Member Board of Revenue considered it to be an unauthentic document---Even the original Transfer Order Form was not produced before him---Plaintiffs, therefore, failed to establish grant of the disputed survey number by the Barrage Department in favour of their predecessor-in-interest---While acknowledging the occupation of the disputed survey number by the respondents, the plaintiffs did not even take the plea as to when or at what point of time they were dispossessed---Further it was also not claimed that disputed survey number was ever brought under cultivation considering the fact that grants were meant for agricultural purposes only---Preponderance of probabilities led to the conclusion that the survey number in dispute was Government land, which was never granted to the predecessor-in-interest of the plaintiffs---Plaintiffs were therefore not entitled to seek the reliefs sought in their suits.

Mushtaq A. Memon, Advocate Supreme Court for Appellants.

Shahenshah Hussain, Senior Advocate Supreme Court for Respondents.

Sibtain Mehmood, A.A.-G. on Courts Notice.

2018 S C M R 365

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Ijaz ul Ahsan, JJ

PREMIER BATTERY INDUSTRIES PRIVATE LIMITED---Petitioner

Versus

KARACHI WATER AND SEWERAGE BOARD and others---Respondents

Civil Petition No. 481-K of 2017, decided on 7th December, 2017.

(Against order dated 12.08.2017 of High Court of Sindh at Karachi, passed in Constitution Petition No. 1802 of 2017)

(a) Sindh Public Procurement Act (IV of 2009)---

----Preamble---Sindh Public Procurement Rules 2010, Rr. 15-A & 17---Public notice inviting Expression of Interest (EOI) for development of a project---Contents of notice---Question was as to "whether the notice met the requirements of Sindh Public Procurement Act, 2009 and Sindh Public Procurement Rules 2010"---Impugned notice was admittedly published in various newspapers of wide circulation and had also been uploaded on the website of the concerned Government department---Said notice not only gave details of the project for which expression of interest (EOI) had been invited but also gave sufficient details about the places from where EOI documents could be obtained---Notice clearly specified that only those parties which demonstrated experience of power plant projects (construction and management), were financially sound and had annual turnover of amounts in excess of Rupees 1000 million would be eligible---Prequalification process was to be conducted and only those who were pre-qualified would be entitled to receive Request for Proposal (RFP) documents on the basis of which they would be able to participate in the bidding process for the project---Last date for submission of EOI was clearly provided and it was clearly stated that documents received after the deadline shall not be entertained---Contents of the EOI notice clearly showed that it did not prima facie violate the requirements of Sindh Public Procurement Act, 2009, and Sindh Public Procurement Rules, 2010---Petitioner-company neither fulfilled the technical nor the financing criteria provided in the notice, and it also had no experience of power generation, transmission or investment in power projects---Memorandum of association of the petitioner-company showed that power generation or investment in power generation projects was not one of the stated objects of the company---No evidence was submitted on record that may give any indication about the paid-up capital, actual business, financial resources or financial health of the petitioner-company---Case record also showed that the petitioner did not submit EOI documents on or before the deadline for submission of such documents---As a matter of fact the petitioner did not even apply for such documents, let alone submit the same after payment of necessary fee---Petitioner waited for about a month after the last date for submission of documents to approach the High Court in its constitutional jurisdiction---Constitutional petition filed by the petitioner-company before the High Court challenging the impugned notice had been rightly dismissed---Petition for leave to appeal was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional jurisdiction of superior courts---Scope---Such jurisdiction was required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that blocked or suspended the performance of executive functions by the Government.

(c) Constitution of Pakistan---

----Arts. 184(3) & 199--- Public interest litigation--- Scope--- Public interest litigation undertaken by a citizen must in the first place transparently demonstrate its complete bona fides; and further that such litigation was not being undertaken to serve a private or vested interest and was demonstrably aimed at serving public interest, good or welfare.

Muhammad Shafique Khan Sawati v. Federation of Pakistan 2015 SCMR 851; ECHO West International (Pvt.) Ltd. v. Government of Punjab PLD 2009 SC 406; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 and Javed Ibrahim Paracha v. Federation of Pakistan PLD 2004 SC 482 ref.

Haider Waheed, Advocate Supreme Court for Petitioner.

Dr. Farogh Naseem, Advocate Supreme Court for Respondent No.1.

Sibtain Mehmood, AAG Sindh for Respondent No.2.

2018 S C M R 372

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Maqbool Baqar, JJ

ATTA-UR-REHMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 25-K and 26-K of 2013, decided on 5th December, 2017.

(Against the judgment dated 05.03.2013 passed by the High Court of Sindh, Karachi in Special Anti-Terrorism Jail Appeals Nos. 08 and 09 of 2006 and Confirmation Case No. 03 of 2006)

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

----Ss. 302(b), 34, 337-F(iii), 337-F(v) & 337-F(vi)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Reappraisal of evidence---Occurrence was an incident of terrorism in which firing had been resorted to and hand grenades had been hurled at a Rangers party resulting in two deaths and five persons getting injured---Proceedings of the test identification parade showed that the present accused persons had been picked up by the eye-witnesses with reference to the roles played by them during the occurrence---Even during the trial the eye-witnesses produced by the prosecution had pointed towards the present accused persons amongst the culprits who had actively participated in the main incident---Ocular account of the occurrence had been furnished before the Trial Court by as many as six witnesses out of whom two had the stamp of injuries on their bodies vouchsafing their presence at the scene of the crime at the relevant time---Consistent ocular account furnished by the said eye-witnesses had received sufficient support from the medical evidence---Guilt of the accused persons had been established beyond reasonable doubt---Appeal to the extent of conviction of accused persons was dismissed accordingly.

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

----Ss. 302(b), 34, 337-F(iii), 337-F(v) & 337-F(vi)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Most of the formalities required by the law vis-a-vis holding of a test identification parade had been duly compiled with yet the dummies had remained unchanged while all the accused persons were put to identification---Such irregularity did not vitiate the parade itself but had putting the court to caution in the matter of death sentence of accused persons---Furthermore the allegations leveled against the accused persons were joint and common and no specific injury had been attributed to any particular accused person, thus, it was not clear as to which one of the accused persons, was actually responsible for causing the fatal injuries to the deceased---Sentences of death passed against the accused persons were reduced to imprisonment for life.

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

----Ss. 302(b) & 34---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Sentence of death was withheld when it was not clear as to whether a particular accused was actually responsible for causing death or not.

Muhammad Ilyas Khan, Advocate Supreme Court for Appellant (in Cr. A. 25-K of 2013).

Mehmood A. Qureshi, Advocate Supreme Court for Appellant (in Cr. A. 26-K of 2013).

Abdullah Rajpoot, Deputy Prosecutor-General, Sindh for the State (in both cases).

2018 S C M R 376

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

KHALID MEHMOOD---Appellant

Versus

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

Civil Appeal No. 729 of 2013, decided on 12th December, 2017.

(Against judgment dated 11.1.2012 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 471 of 2008)

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

----Sched., S.O 12(3)--- Permanent employee---Dismissal without assigning reasons---Back benefits, entitlement to---Appellant's services were terminated without assigning any reason whatsoever, which termination was found illegal by the Labour Court as well as by the Labour Appellate Tribunal---In terms of Standing Order 12(3) of the Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the services of a permanent employee could be terminated only by giving explicit reasons---Supreme Court ordered payment of back benefits to the appellant for the intervening period between his date of termination and date of his reinstatement in service.

Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159 and Pakistan v. Public at Large PLD 1987 SC 304 ref.

(b) Industrial dispute---

----Reinstatement in service---Back benefits---Employer obtaining consent from employee to forgo back benefits as a condition for reinstatement---Practice of obtaining such consent from employee was deprecated by the Supreme Court.

Ikram Bari and 52 others v. NBP 2005 SCMR 100 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellant.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2018 S C M R 380

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. Umar Ata Bandial and Ijaz ul Ahsan, JJ

WAPDA through Chairman and others---Petitioners

Versus

ABDUL GHAFFAR and others---Respondents

Civil Petitions 1035-L to 1061-L of 2017, decided on 21st December, 2017.

(Against judgment dated 01.02.2017 of Federal Service Tribunal, Lahore, passed in Appeals Nos. 225 to 235, 247 to 250(L)CS of 2015 and Appeals Nos. 367 to 378(L)CS of 2016)

Civil service---

----Promotion---Similarly placed employees---Entitlement to the same relief---Point of law relating to terms of service of civil servant decided by the Service Tribunal or the Supreme Court---Where such point of law covered not only the case of the civil servants who litigated, but also of other civil servants, who may have not taken any legal proceedings, the dictates of justice and rule of good governance demanded that the benefit of the point of law be extended to other civil servants, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 and Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030 ref.

Mian Ghulam Hussain, Advocate Supreme Court for Petitioners.

Mian Mehmood Hussain, Advocate Supreme Court, Faiz-ur-Rehman, Advocate-on-Record for Respondents (in C.Ps. 1035-L to 1049-L of 2017).

M. Ikram Sheikh, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondents (in C.Ps. 1050-L to 1061-L of 2017).

2018 S C M R 384

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Maqbool Baqar, JJ

RUSTAM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 752 of 2006, decided on 4th December, 2017.

(Against the judgment dated 12.04.2005 passed by the High Court of Sindh, Karachi in Special A.T.As. Nos. 4, 5, 8 and 11 of 2004)

Penal Code (XLV of 1860)---

----Ss. 344 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, act of terrorism---Reappraisal of evidence---Notice issued by the Supreme Court to accused persons against their acquittal by the High Court, discharge of---Record showed that accused persons were not the ones who had abducted the alleged abductee---Alleged abductee had not been recovered from the custody of accused persons---According to the prosecution the accused persons were merely present outside a car at a public place with others at the time the payment of ransom was made---Statement of witness produced by the prosecution regarding payment of ransom was discarded by the High Court for cogent reasons---Alleged recovery of some cash from one of the accused was legally inconsequential because the recovered cash never stood connected with the alleged offences---Present case originated in the year 2003 and accused persons were acquitted by the High Court in the year 2005---No appeal against their acquittal had been filed before the Supreme Court either by the State or by the complainant party---About twelve (12) years had already passed since the acquittal of accused persons--- Evidence brought on the record by the prosecution against the accused persons was deficient and, thus, no useful purpose was likely to be served by persisting with the notice issued by the Supreme Court against their acquittal---Supreme Court discharged the notice issued by it to the accused persons vis-a-vis their acquittal and the bail bonds and sureties furnished by them were also discharged---Appeal was disposed of accordingly.

Nemo for Appellants.

Noor Muhammad Dayo, Advocate Supreme Court, Mehmood A. Qureshi, Advocate Supreme Court with Acquitted convicts in person on Court's Notice.

Mansoor Javed for the Complainant and Complainant in person.

Shahadat Awan, Prosecutor-General, Sindh for the State.

M. Latif, S.I.

2018 S C M R 387

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

SAADAT ALI KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 394-L to 441-L of 2017, decided on 29th December, 2017.

(Against the judgment dated 29.6.2016 of the Lahore High Court, Lahore passed in Cr. Rs. Nos. 156, 154 and 155 of 2010)

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

----S. 37-A(3)---Tax fraud---Offences and penalties---Fine, quantum of---Exercise of discretion by Trial Court---Scope---Trial Court should exercise its discretion of imposing a fine in a fair, transparent and structured manner---Court should impose a fine which was commensurate with the amount of loss that the accused had caused to the exchequer through tax fraud---Expression, "may extend" used in S. 37-A(3) of the Sales Tax Act, 1990 did not mean that the court had an unbridled and unrestricted discretion to impose as much or as little fine, as it may deem fit---Discretion had to be exercised keeping in view the facts and circumstances of the case.

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

----S. 37-A(3)---Tax fraud---Offences and penalties---Fine, quantum of---Exercise of discretion by Trial Court---Scope---On the basis of voluntary confessional statements of the accused persons, the Trial Court convicted them, however, the sentence awarded was the period they had already spent in jail which was treated as sentence already undergone---Further, a fine/penalty in the sum of Rs.3000/- was imposed in each case---High Court maintained the punishment of sentence undergone but enhanced the amount of fine imposed by the Trial Court to the amount equal to loss of tax fraud committed; held, that the question of discretion in imposing fine had become totally irrelevant on account of the 'clear and unequivocal admission/ confession made by the accused persons that they had committed the offence and defrauded the exchequer of an amount of Rs.2,04,60,105/----After having allowed the imprisonment as that already undergone, the amount of fine imposed should have been equivalent to the loss caused to the exchequer---No justification or reason had been recorded by the Trial Court for the exercise of discretion in favour of the accused persons by imposing a paltry sum of Rs.3000/- as fine in a mechanical manner---High Court validly and for appropriate reasons, enhanced the amount of fine---Appeal was dismissed accordingly.

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

----S. 37-A(3)--- Tax fraud--- Offences and penalties--- Erroneous application of law in imposing fine---Fine imposed by Trial Court enhanced by the High Court under an incorrect provision of law---No prejudice caused to accused---High Court may have relied upon a wrong provisions of law (in the Sales Tax Act, 1990], and enhanced the amount of fine imposed by the Trial Court, but the same power was also available to the High Court under S. 37-A(3) of the said Act, therefore, no prejudice had been caused to the accused persons on account of erroneous application of the relevant provision of the Sales Tax Act, 1990 by the High Court---Appeal was dismissed accordingly.

Ahmed Awais, Advocate Supreme Court for Appellants (in all cases).

Khalid Chaudhry, Advocate Supreme Court, Mrs. Tasneem Amin, Advocate-on-Record and M. Imran, Deputy Commissioner, Customs for Respondent (in all cases).

2018 S C M R 391

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Maqbool Baqar, JJ

ORANGZAIB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 5-K of 2012, decided on 4th December, 2017.

(Against the judgment dated 29.03.2010 passed by the High Court of Sindh, Karachi in Special ATA Appeal No. 13 of 2006)

Penal Code (XLV of 1860)---

----Ss. 365-A, 383 & 384---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, extortion, act of terrorism---Reappraisal of evidence---Admittedly there was no evidence led by the prosecution showing that the accused was involved in the act of abduction of the alleged abductee---No evidence had been brought by the prosecution on the record establishing that the accused had demanded ransom for release of the alleged abductee---Some evidence brought by the prosecution on the record regarding making of telephone calls about ransom had been discarded by the High Court after recording cogent reasons---Alleged abductee or his deadbody had not been recovered at the instance of the accused---Only evidence brought on the record against the accused was that when the accused party had received the amount of ransom on that occasion the accused was driving the motorcar wherein the alleged abductee was kept in confinement on the rear seat by the co-accused---Even if the said allegation were to be accepted in its entirety the same would attract the provisions of S. 383, P.P.C. pertaining to extortion entailing a maximum sentence of three years' imprisonment as provided under S. 384, P.P.C.---Accused had already suffered incarceration for a period of about 12 years whereas the maximum sentence which could have been awarded to him for the offence of extortion was three years' imprisonment---Conviction and sentence of the accused recorded by the High Court under S. 365-A, P.P.C. and S. 7(e) of Anti-Terrorism Act, 1997 were set aside and instead the accused was convicted for an offence under S. 383, P.P.C. read with S. 384, P.P.C. and sentenced to rigorous imprisonment for three years which sentence he had already passed---Supreme Court directed that as the accused had spent more period of imprisonment than was due, therefore, he was not burdened with any fine, and that he shall be released from the jail forthwith if not required to be detained in connection with any other case---Appeal was partly allowed accordingly.

Mehmood A. Qureshi, Advocate Supreme Court for Appellant.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh and Khan Nawaz, S.-I. for the State.

2018 S C M R 394

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

WAPDA through Chairman and others---Appellants

Versus

Raja IFTIKHAR AHMED and others---Respondents

Civil Petitions Nos. 3451 to 3464 of 2017 and Civil Petitions Nos. 3473 to 3651 of 2017, decided on 15th December, 2017.

(Against order dated 17.07.2017 of Federal Service Tribunal, Islamabad, passed in Miscellaneous Petitions Nos. 2630 to 2715 of 2016, etc.)

Civil service---

----Special allowance, grant of---Non-implementation of judgments of the Service Tribunal and the Supreme Court---Abuse of process of the court---Special costs imposed on the Chairman of the department---All points raised by the petitioner-department had repeatedly been considered, addressed and rejected by the Service Tribunal as well as the Supreme Court---Same points could not be re-agitated and reopened for the umpteenth time and the attempt on part of the petitioners to do so reeked of mala fide---Such conduct constituted denial of the fruits of justice and gross abuse of the process of the Supreme Court---Supreme Court deprecated the conduct of the petitioner-department and imposed special costs of Rs.50,000/ on the Chairman of the department in his personal capacity, and directed that said amount shall be paid by the Chairman out of his own pocket and deposited with a trust foundation, and that the department shall forthwith implement the orders of the Service Tribunal and submit a report within seven (7) days of date of receipt of present order with the Registrar of the Supreme Court---Petition for leave to appeal was dismissed accordingly.

Umar Aslam Khan, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record and Ahmed Bakhsh Tarar, DG (Law), Wapda for Petitioners.

Nemo for Respondents.

2018 S C M R 397

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Manzoor Ahmed Malik, JJ

MUHAMMAD ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 115-L of 2009, decided on 28th December, 2017.

(Against the judgment dated 25.04.2006 passed by the Lahore High Court, Lahore in Criminal Appeal No. 07 of 1998 and Murder Reference No. 04-T of 1998)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd and terrorism---Accused was convicted by Trial Court and sentenced to death on six counts, which was affirmed by High Court---Validity---Leave to appeal was granted by Supreme Court in order to reappraise the evidence.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd and terrorism--- Mitigating circumstances--- Common intention---Quantum of sentence---Trial Court convicted accused and sentenced him to death on six counts, and the same was affirmed by High Court---Plea raised by accused was that there were mitigating circumstances available towards reduction of sentence---Validity---No eye-witness had deposed that accused had actually fired at any of the deceased or caused any injury to any person---Extra-judicial confession attributed to co-accused confirmed such aspect of the matter as according to the same, accused merely accompanied his co-accused to the place of occurrence and remained present with motorcycle at the spot and had not caused any injury to any person during the incident in issue---Although a firearm was allegedly recovered from custody of the accused during investigation yet the firearm never stood connected with alleged offence---Accused was arrested way back in year 1997, and he remained behind the bars ever since---In terms of role attributed to accused, he did not deserve maximum sentence provided for the offence in question---Supreme Court altered sentence of death on six counts to imprisonment for life on six counts and also reduced amount of fine and compensations awarded to accused.

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

----Ss. 63, 65 & 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), S. 544-A---Qatl-i-amd and terrorism---Fine and compensation---Quantum---Imprisonment in lieu of fine and compensation---Scope---Fine and compensation to legal heirs of deceased persons were also imposed upon the accused and in case of non-payment he was to undergo imprisonment---Validity---Fines imposed upon accused on each of the relevant counts were excessive and even sentences of imprisonment to be undergone in default of payment of fine were on the higher side---Order passed by Trial Court regarding payment of compensation by accused to heirs of each deceased was inappropriate and warranted interference---Supreme Court reduced amounts of fine and compensation each to Rs.50000/- on six counts or in default of payment thereof to undergo simple imprisonment for six months---Appeal was allowed accordingly.

Qazi Misbah-ul-Hassan, Advocate Supreme Court for Appellant.

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

2018 S C M R 401

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

CDA and another---Appellants

Versus

HASHWANI HOTELS LTD.---Applicant/Respondent

Civil Miscellaneous Applications Nos.2593 and 2812 of 2008 in Civil Appeal No.1268 of 2008, decided on 25th September, 2017.

(a) Supreme Court Rules, 1980---

----O. XII, R.4--- Appeal filed before the Supreme Court---Commencement of limitation period---Limitation for filing appeal would commence from the date of preparation of the decree and the time, elapsed between the announcement of the judgment and signing of the decree shall be included in the time requisite for obtaining the copy of the judgment and decree.

Government of Sindh through Land Acquisiition Officer and others v. Muhammad Jumman and another 2009 SCMR 1407 and Government of West Pakistan through Chief Secretary, Lahore and others v. Niaz Muhammad PLD 1967 SC 271 ref.

(b) Supreme Court Rules, 1980---

----O. XII, R.4--- Appeal filed before the Supreme Court---Commencement of limitation period---Preparation of decree---Report from High Court, in the present case did not mention the specific date on which the decree sheet had been prepared---No material was available on record about the movement of file indicatig as to when, after the judgment had been signed by the Bench of the High Court, the file was sent to the office for the preparation of the decree, how much time was consumed in such respect and what was the exact date when the decree-sheet was prepared and completed in all respects---Record of the Trial Court when sent by the High Court also did not accompany the decree-sheet, rather it was only the impugned judgment that was sent---Office (of Supreme Court) had entertained the appeal against the impugned judgment alone and never required the appellants to also file the decree-sheet till such date when a notice in this regard was issued but before that the appellants had already filed an application for obtaining the copy of the decree-sheet---Decree-sheet was not prepared and was not in existence on the date of the pronouncement of the impugned judgment (of the High Court), rather it was subsequently prepared and, the date in such regard was absolutely obscure--- In view of all said circumstances, no sure date could be ascertained as to when the decree was prepared by the High Court, therefore, the appellants' appeal could not be with surety held to be barred by time---Even if it was barred by time, then in view of the facts of the circumstances of the present case, the delay of 44 days in filing the appeal (with the decree sheet) was condoned.

Syed Najamul Hassan Kazmi, Senior Advocate Supreme Court, Mian Muhammad Hanif, Advocate Suprteme Court and Raja Abdul Ghafoor, Advocte-on-Record for Appellant.

Naeem Bukhari, Advocate Supreme Court for Applicant/ Respondent.

2018 S C M R 407

[Supreme Court of Pakistan]

Present: Mushir Alam and Maqbool Baqar, JJ

SINDH RURAL SUPPORT ORGANIZATION (SRSO)---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No. 211-K of 2016, decided on 20th December, 2017.

(Against the judgment dated 24.11.2015 passed by High Court of Sindh, Karachi in C.P. No. D-4136 of 2012)

Constitution of Pakistan---

----Arts. 169(b) & 171(2)---Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance (XXIII of 2001), Ss. 8, 9 & 11---Non-profit body corporate [registered under the Companies Ordinance, 1984] engaged in initiating and supporting social and economic welfare programme in a Province---Funds provided to non-profit body by the Provincial Government---Whether such funds were subject to audit by the Auditor General of Pakistan (AGP)---Auditor General had jurisdiction in relation to the accounts of the Federation and of the Province and District or any authority or body established by the Federation or a Province---Petitioner/non-profit body, in the present case, was neither any authority nor a body established by or under the control of Federal or Provincial Government, but the test that needed to be run for the purposes of determining the authority of the Auditor General to carry out audit was in respect of the all sums of money either in the form of loan and or grants doled out of the consolidated funds of the Federation, Provinces or any District Governments and placed at the disposal of any authority or body for utilization and spending---In terms of Ss. 9 & 11 of the Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance, 2001, any body and or authority that was in receipt of amount not less than five million rupees and or where the amount of such grant or loan was not less than 51% (fifty one percent) of total expenditure out of Federal, Provincial consolidated funds or of any District, such authority or body was categorized as "substantially financed body and or authority" and fell within the audit realm of Auditor General of Pakistan---Admittedly the petitioner body was a Government funded initiative and its entire funding for the purpose of its activities was provided by the Provincial Government---Petitioner body was liable to audit of receipt and expenditure by the Auditor-General of Pakistan.

Raja Qasit Nawaz Khan, Advocate Supreme Court for Petitioner.

M. Aslam Butt, DAG, Syed Sibtain Mehmood, Assistant A.-G. Sindh, Ghulam Rasool Mangi, Advocate-on-Record, Sajid Imran Khanzada, Audit Officer, Sindh, Fateh Muhammad Qureshi, Dir. DG Audit, Baqar Abbas Naqvi, Secy. Health Deptt. Sindh, Aijaz Meheesar, Spl. Secy. Health, Sindh and Muhammad Younas, SO Health Deptt. Sindh for Respondents.

2018 S C M R 414

[Supreme Court of Pakistan]

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

JAHANZAIB MALIK---Petitioner

Versus

BALOCHISTAN PUBLIC PROCUREMENT REGULATORY AUTHORITY through Chairman Board of Directors and others---Respondents

Civil Petition No.216-Q of 2017, decided on 4th January, 2018.

(On appeal against the judgment dated 08.11.2017 passed by the High Court of Balochistan, Quetta in Constitution Petition No. 721 of 2015)

(a) Civil service---

----Advertised post---Academic qualification for candidates---Degree issued after last date for submitting application for the post---At the time of submitting his application for the post in question, appellant had not received his degree on basis of which he applied for the post---Appellant completed his degree in January, 2014 (i.e. before the last date for submission of application for the post), however, the degree was formally issued in March, 2015 for reasons beyond his control---Degree itself showed that the appellant had successfully completed the requisite course work and examination in the academic year 2014---Transcript issued by the concerned institute also verified the fact that the appellant had completed his degree in January, 2014---Fact that the degree was formally issued in year 2015 was not, in the facts and circumstances of the present case of much significance---Furthermore appellant was at the top of the list (of candidates) on the basis of his performance in the test and interview---Impugned judgment of the High Court whereby appellant was held to be not qualified to hold the post in question was set-aside---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199--- Suo motu powers of the High Court--- Scope---Constitutional petition becoming infructuous---Constitutional petition as originally filed challenged the appointment of respondent to an advertised post only on basis of his alleged lack of education qualification---Once the respondent's tenure expired, he was granted an extension of two (2) years, vide an office order---Said office order was not challenged by the petitioner either through amendment in the Constitutional petition or by filing a fresh petition---When the petitioner was held to be academically qualified for appointment to the post, then the Constitutional petition as originally filed was rendered infructuous---By taking suo motu notice of such extension, the High Court appeared to have exceeded its jurisdiction for reasons which were not legally sustainable---Impugned judgment of High Court was set aside in circumstances.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioiner.

Ayaz Swati, Addl. A.G. for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

2018 S C M R 418

[Supreme Court of Pakistan]

Present: Mushir Alam and Dost Muhammad Khan, JJ

RAHIB ALI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.169 of 2017, decided on 30th October, 2017.

(Against the judgment dated 14-10-2016 passed by Sindh High Court, Hyderabad Circuit, in Crl. Misc. Application No.D-430 of 2015).

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

----Ss. 397 & 561-A---Concurrent running of sentences awarded in separate trials---Power of trial/ appellate/ revisional court to order life sentences awarded in two separate trials to run concurrently---Section 397, Cr.P.C. enabled and empowered the Trial, and or Appellate/Revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from---In case earlier conviction was not brought to the notice of the court at the time of handing down the subsequent conviction and sentence, the Trial or Appellate/Revisional Court could exercise such jurisdiction, even after the sentence of imprisonment in subsequent trial was announced, in exercise of its inherent jurisdiction under S. 561-A read with S. 397, Cr.P.C, unless, the trial, or superior courts of appeal had specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively.

Ammavasai v. Inspector of Police, 2000(9) SCC 759 SC India; Mst. Zubaida v. Falak Sher and others 2007 SCMR 548; Shahista Bibi and another v. Superintendent, Central Jail, MACH and 2 others PLD 2015 SC 15 and Sajjad Ikrram and others v. Sikandar Hayat and others 2016 SCMR 467 ref.

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

----Ss. 35, 397 & 561-A---Concurrent running of sentences awarded in separate trials---Power of High Court/Supreme Court to order sentences awarded in two separate trials to run concurrently---High Coiurt and the Supreme Court had jurisdiction under S. 561-A read with S. 35 or S. 397, Cr.P.C. as the case may be, to order multiple sentences awarded in same trial or in separate or subsequent trials to run concurrently.

Amjad Ali Sahito, Advocate Supreme Court and Ghulam Rasood Mangi, Advocate-on-Record for Petitioner.

Abdullah Rajput, Addl. A.G. for the State.

2018 S C M R 427

[Supreme Court of Pakistan]

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

MIRJAM ABERRAS LEHDEAHO---Petitioner

Versus

SHO, POLICE STATION CHUNG, LAHORE and others---Respondents

Criminal Petition No. 1011 of 2017, decided on 24th January, 2018.

(Against order dated 16.08.2017 of Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 47853-H of 2017)

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

----S. 7---Guardianship certificate---Father as guardian of person and property of minors---Scope---No bar or restriction was placed on the father/natural guardian against obtaining a guardianship certificate from the court, however the circumstances and bona fides of father in obtaining such declaration/certificate needed to be examined keeping in view the peculiar facts of a case.

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

----S. 7--- Guardianship certificate issued in favour of father of minors---Deceitful conduct and lack of bona fides on part of the father---Effect---Mother and minors were sent to a foreign country and obtained citizenship there on the desire of the father---On account of professional reasons, the father did not seek citizenship of foreign country but got permanent resident status which allowed him to enter and exit the foreign country at his convenience---Family had an understanding that either the father would visit the family in the foreign country as and when he could or in the alternative, the mother along with the children would visit Pakistan during holidays---Said arrangement continued for about seven years when the father appeared to have changed his mind and decided to bring the family back to Pakistan, however, by such time, the mother had taken up employment in the foreign country and the children had started attending schools/colleges at various levels in the foreign country---Mother and children were well settled and had assimilated in the environment of the foreign country---In order to force his minor sons to come back to Pakistan, the father used devious and deceitful methods---On the promise that they would only be visiting their father for a short holiday and would be allowed to return to the foreign country, the children came to Pakistan in good faith with the blessings of their mother---Father approached the Guardian Court without disclosing the exact facts, took pains to conceal the correct address of the mother, did not inform the Court that their daughter was already an adult and also withheld the fact that he had granted permission, in writing, to the children to return to the foreign country---Purchase of some property in the joint names of the father and sons was also a device to create grounds of appointment of father as guardian of property of the minors and thus postponement of age of majority from 18 to 21 years---Father got ex parte orders from the Guardian Court in his favour without contest and behind the back of the mother---Initially, the mother was shown as residing at the house of the father and at a belated stage her foreign address was placed on record---Notice sent to the mother did not contain the requisite information which would have enabled her to get information about the matter pending before the Guardian Court and to instruct a lawyer to contest the matter on her behalf---All the said factors pointed towards manipulation, deceit and lack of bona fides on the part of the father---Application for appointment of guardian of the person and property of the minors was used for improper purposes in order to provide legal cover to the wishes and designs of the father---Furthermore the minors, who appeared to be mature enough to make an informed choice, stated before the Supreme Court in no uncertain terms stated that they were finding it hard to adjust in Pakistan and would like to return to the foreign country to continue their education; that they had been admitted to a school in Pakistan but had been unable to make friends, adjust to the new system and get into the flow of things socially or academically, and that they would be happy to return to Pakistan during their holidays and also spend time with their father if and when he came to the foreign country---Ex parte order/judgment of the Guardian Court was not sustainable in such circumstances---Supreme Court set aside ex parte judgment of the Guardian Court and directed that the guardian petition shall be deemed to be pending before the court, which will grant reasonable time and opportunity to the mother to file her written statement, and that as an interim measure, the custody of the minors shall be handed over to their real mother---Appeal was allowed accordingly.

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

----Ss. 491 & 561-A---Guardians and Wards Act (VII of 1890), S. 7---Habeas corpus petition for recovery of children---Parental jurisdiction of the Supreme Court---Scope---Restoring custody to the mother as an interim measure---Where the mother of the children was residing abroad and bona fidely believed that the children had been removed from her custody by exercise of deception and trickery on part of the father, and thereafter forced to stay in Pakistan against their will, she could not be precluded from approaching the High Court, which was not denuded of its jurisdiction under Ss. 491 & 561-A, Cr.P.C. to provide relief to the mother---In appropriate cases where there was a real and imminent danger of physical, emotional or any other harm coming to a minor, the Supreme Court would not be shy of exercising powers in its parental jurisdiction coupled with its Constitutional mandate to do complete justice to safeguard and secure the interests of the minors.

Nadia Parveen v. Almas Noreen PLD 2012 SC 758; Abdul Rehman Khakwani v. Abdul Majid Khakwani 1997 SCMR 1480 and Naziha Ghazali v. The State 2001 SCMR 1782 distinguished.

Shaukat Masih v. Farhat Parkash 2015 SCMR 731 and Khalida Perveen v. Muhammad Sultan Mehmood PLD 2004 SC 1 ref.

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

----Ss. 491 & 561-A---Guardians and Wards Act (VII of 1890), S. 7---Habeas corpus petition filed before the High Court for recovery of children during pendency of proceedings before the Guardian Court---Maintainability---Guardian Court was the final arbiter for adjudicating the question of custody of children, however, where a parent holding custody of a minor lawfully had been deprived of such custody, such parent could not be deprived of a remedy to regain the custody while the matter was sub judice before a Guardian Court---In exceptional cases, where the High Court found that the best interest and welfare of the minor demanded that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court was not denuded of jurisdiction to pass appropriate orders under S. 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court.

Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Shaukat Masih v. Mst. Farhat Parkash and others 2015 SCMR 731; Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633; Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758; Abdul Rehman Khakwani v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 and Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 ref.

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

----Ss. 491 & 561-A---Guardians and Wards Act (VII of 1890), S. 7---Habeas corpus petition filed before the High Court for recovery of children during pendency of proceedings before the Guardian Court---Factors to be considered by the High Court before restoring custody to mother as an interim measure---Scope---Tender age of the minor was always a material consideration but it was not the only consideration to be kept in mind by the High Court---Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffered owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor were equally important and also needed to be kept in mind while granting or refusing an order to restore interim custody by the High Court.

Ms. Asma Jehangir, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ch. Ishtiaq Ahmed, Advocate Supreme Court along with Ghulam Qasim Dogar and Ghulam Jaffer Dogar (Minors) for Respondent No. 2.

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

2018 S C M R 443

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Appellant

Versus

SAMI-UR-REHMAN and others---Respondents

Civil Appeal No. 78-K of 2017, decided on 28th November, 2017.

(Against the judgment dated 3.1.2017 passed by the High Court of Sindh in C.P. No. S-464 of 2003)

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

----S. 15(2)(iii)(a)---Ejectment of tenant---Grounds---'Handing over of possession' of rented premises to some other person without consent of landlord---Scope---Contention of landlord was that tenant was liable for ejectment for "handing over of possession to some other person " as according to the landlord the tenant without the written consent of the landlord converted his sole proprietary concern into a private limited company and handed over the possession of the said premises to the limited company which was a juristic person and a separate entity and therefore, had sublet the premises and rendered himself liable to ejectment; held, that the tenant had converted his sole proprietary concern into a private limited company and at present the said private limited company was conducting business in the subject premises---Rented premises had been handed over by a natural person i.e. tenant to a juristic person i.e. private limited company---Distinct legal entity independent and separate from its Directors had come into exclusive possession of the rented premises which was running business therein, paying taxes in its own name, depositing rent with the Rent Controller from its own accounts and such change had been brought without the consent or even the knowledge of the landlord which exposed the tenant to the consequences as provided under S. 15(2) of the Sindh Rented Premises Ordinance, 1979---'Handing over of possession" of the rented premises to some other person under S. 15(2)(iii)(a) of the Ordinance exposed a tenant to eviction---Supreme Court directed the tenant to hand over the vacant peaceful possession of the premises in question to the landlord within 30 days--- Appeal was allowed accordingly.

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

----S. 15(2)(iii)(a)---Ejectment of tenant---Grounds---'Handing over of possession' of rented premises to some other person without consent of landlord---General principles---Tenant converting his sole proprietary concern into a private limited company---Where the tenant was holding a tenancy right in his personal name and subsequently formed a company for the expedience of business and parted with possession by allowing the company to undertake the business in that premises, then notwithstanding the fact that the company was conducting the same business and the original tenant had become its Director or share holder would not save the tenant from the consequences of ejectment on grounds of "handing over of possession"--- Where, however, the land¬lord recognized status of a company as its tenant then on change of Directors ejectment proceedings on account of "handing over of possession" would not be sustained as the status of a company was totally different and independent of its Directors---Any change of Directors by way of their addition or removal would not affect the status of the tenant-company and, therefore, would not provide a cause for ejectment on grounds of "handing over of possession".

Messrs Premier Mercantile Service and another v. S.M. Younus and another PLD 1982 SC 79; Muhammad Subhan and others v. Bilquees Begum through Legal Heirs 1994 SCMR 1507 and Messrs Uzma Construction Company v. Navid H. Malik 2015 SCMR 642 ref.

(c) Waiver---

----Waiver by conduct---Proof---To prove a waiver of right by conduct there should be some clear and decisive act or conduct and it must be shown that the person entitled to the right had knowledge of its breach and that he had acquiesced or failed to enforce the same notwithstanding such knowledge.

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

----S. 15(2)(ii)---Ejectment of tenant---Grounds---Default in payment of rent---Person other than the tenant depositing rent with the Rent Controller---Tenant who ran a business in the rented premises as a sole proprietary concern converted the same into a private limited company---Pay orders for rent which were previously sent in the name of the tenant were now sent in the name of the company---Landlord refused to accept such pay orders, where after the company started depositing the rent with the Rent Controller; held, that admittedly the tenant had failed to pay the rent and it was the company which offered the rent to the landlord and on refusal deposited the same with the Rent Controller---Since the company admittedly was not the tenant of the landlord, therefore, the landlord was right in declining to receive the rent and such deposit with the Rent Controller could not save the tenant from the consequences of default in payment of rent in terms of S. 15(2) of the Sindh Rented Premises Ordinance, 1979---Supreme Court directed the tenant to hand over the vacant peaceful possession of the premises in question to the landlord within 30 days---Appeal was allowed accordingly.

Sattar Muhammad Awan, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record and Nafees A. Siddiqui for Appellant.

Shaikh F.M. Javed, Advocate Supreme Court for Respondents Nos. 1 and 2.

Pro forma for Respondents Nos. 3 and 4.

2018 S C M R 495

[Supreme Court of Pakistan]

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

INTEKHAB AHMAD ABBASI and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 218 of 2015 and Jail Petitions Nos. 249 and 454 of 2015, decided on 30th November, 2017.

(On appeal from the judgment dated 27.1.2015 passed by the Lahore High Court, Rawalpindi Bench in Crl. Appeal No. 706-T of 2010 and Crl. Appeal No. 707-T of 2010)

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

----Ss.120-B, 420, 468 & 471---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Possessing explosives to carry out terrorist activities---Re-appraisal of evidence---Benefit of doubt---Accused persons were alleged to have hatched a conspiracy to kill the Chief of Army Staff but before they could execute their plan they were arrested from a parking lot and upon the search of their vehicles explosive material was found therein---Arrest of the accused persons from the parking lot appeared to be doubtful---Large contingent of police raided the parking lot, surrounded it from all four corners and during the arrest, recovery and seizure proceedings not a single public witness was associated---Even the owner of the car park, caretaker/manager and particularly the watchman, who was deputed for looking after parked vehicles was not available as witness---Police contingent remained on the crime scene for many hours but none of them was available as witness---Register maintained for the entries about the parked vehicles and its particulars was not taken into possession rather it was arranged after many days---Said register contained lose sheets, blank pages and some sheets were half filled---Courts below had rightly discarded said primary piece of evidence---Accused persons suffered many injuries during their custody which raised the inference that they were tortured---Potassium chloride recovered from the accused persons became a high intensity explosive substance only after being mixed with certain other substances, therefore, question was as to whether potassium chloride on its own could be termed as a high intensity explosive substance---Within no time after the arrest of the accused persons 'murasla report' was sent for registration of the case and S. 120-B, P.P.C. was also inserted therein, when by then, the accused were neither interrogated nor they had disclosed about the place, time where they hatched the conspiracy---Offence under S. 120-B, P.P.C., thus, remained unestablished---Question as to how the accused persons knew about the layout plan and about the location of the office of the Chief of Army Staff when no map or guideline materials were recovered from them, was another lacuna in the prosecution case---Accused persons allegedly made confessions before the Special Magistrate, however before such confessions the accused remained in the custody of the investigating agency for weeks---Magistrate gave the accused persons only half an hour time to re-think and re-compose about the making of confession---Fair inference could be drawn that the accused persons were coerced and pressurized to make confessions after remaining in the custody of a Joint Investigation Team for many weeks at unknown places---Confessions thus procured by the Special Magistrate besides being irregular, had lost judicial efficacy and legal worth---Admittedly some of the accused were illiterate or not well educated and spoke a language that the Magistrate could not understand---No translator/interpreter was appointed to record their statements in the words exactly spoken by them---Further the report of concerned Authority about the forged identity cards allegedly recovered from the accused persons was not brought on record at the trial to prove the charge of forgery---Evidence furnished by the prosecution was full of factual and legal defects and was bereft of legal worth/judicial efficacy, therefore, no reliance could be placed on the same---Accused persons were acquitted of all the charges levelled against them by extending them the benefit of doubt---Appeals were allowed accordingly.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Possessing explosives to carry out terrorist activities---Suggestions and recommendations given by the Supreme Court for effective investigation of terrorism cases and for prevention of such crimes recorded.

Basharatullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Crl. A. No.218/15).

Nemo for Petitioners (in both cases).

Muhammad Jaffar, DPG, Punjab for the State.

2018 S C M R 506

[Supreme Court of Pakistan]

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

G. M. NIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 393 of 2015, decided on 9th January, 2018.

(Against the judgment dated 17.04.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No. 69-J of 2008 and Murder Reference No. 196 of 2009)

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Occurrence had taken place at a tea stall but admittedly the owner or the staff of the said tea stall had not been produced by the prosecution before the Trial Court---Ocular account of the incident had been furnished before the Trial Court by two witnesses who were the brother and a paternal cousin of the deceased respectively---Said eye-witnesses were not only very closely related to the deceased but they were also chance witnesses who had failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time---Record of the case showed that deceased was taken to the hospital in an injured condition by a police constable and not by the closely related eye-witnesses and such fact completely belied the claim of the eye-witnesses regarding their presence with the deceased at the relevant time---First Information Report in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the eye-witnesses with the deceased at the time of occurrence---Post-mortem examination of the deadbody of deceased was conducted belatedly after two days of his death---Further deceased received three blunt weapon injuries which had not been explained by the eye-witnesses---Blood-stained clothes of the deceased had not been brought on the record of case---High Court had categorically found that the motive set up by the prosecution had not been proved by it---Alleged recovery of a firearm from the accused's custody during the 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 murder---No blood-stained earth had been secured from the tea stall whereat the occurrence had statedly taken place--- 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 of murder by extending the benefit of doubt to him.

Hasnat Ahmed Khan, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

2018 S C M R 510

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

MUMTAZ-UL-HAQ---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Civil Petition No. 609-K of 2017, decided on 20th December, 2017.

(Against the order dated 14.09.2017, passed by High Court of Sindh, Karachi in C.P. No. D-259 of 2017)

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Criminal Procedure Code (V of 1898), S. 265-K---Corruption and corrupt practices---Power of court to acquit accused at any stage---Scope---Allegation against the accused-petitioner was that in his capacity as Additional Director of a Development Authority he issued illegal allotment orders of plots despite the fact that original allottees did not appear before him and attorney holders held only notarized General Power of Attorneys which were not duly registered---During pendency of his trial before the Accountability Court accused filed an application under S. 265-K, Cr.P.C., which was dismissed both by the Accountability Court and the High Court; held, that the fact that the accused had issued illegal allotment orders and that too not to the original allottees but to persons purporting to hold unregistered General Power of Attorneys itself needed proof by way of evidence---Allegation against the accused apparently was of substantial nature in that the alleged plots were amenity plots and it needed proper adjudication by the Court---High Court in the impugned order had dealt with the matter and assigned good reason for not accepting the plea of acquittal of the accused under S. 265-K, Cr.P.C.---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Saleem Mangrio, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2018 S C M R 511

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

SHAKEEL AHMAD SIDDIQUI---Appellant

Versus

MUHAMMAD NAUMAN SIDDIQUI and others---Respondents

Criminal Appeal No. 336-L of 2017, decided on 18th January, 2018.

(Appeal against the judgment dated 02.05.2017 passed by the Lahore High Court, Lahore in Crl. A. No. 745 of 2014)

Criminal Procedure Code (V of 1898)---

----Ss. 242 & 342---Penal Code (XLV of 1860), Ss. 302, 316 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, qatl-i-shibh-amd, kidnapping or abduction for extorting property, valuable security etc, act of terrorism---Remand of case to Trial Court for de novo trial---Propriety---Charge was framed against the accused and he pleaded guilty only to the extent of abduction of deceased but not his murder and claimed trial---Statements of eleven prosecution witnesses were recorded and after that the accused was examined under S. 342, Cr.P.C.---Accused even produced defence evidence and ultimately he was convicted and sentenced by the Trial Court---Since the Trial Court convicted and sentenced the accused after a full-fledged trial, the impugned order of High Court remanding the case to the Trial Court for de novo trial was not sustainable in the eyes of law---Counsel for accused was not able to point out any procedural lacuna in the judgment of the Trial Court under the relevant provisions of the Code of Criminal Procedure necessitating remand of case for de novo trial---Impugned order of the High Court was set-aside in circumstances---Supreme Court directed that criminal appeal filed by the accused before the High Court would be deemed to be pending and the same shall be decided after re-appraisal of entire evidence available on record.

Hasnat Ahmed Khan, Advocate Supreme Court for Appellant.

Syed Nisar Ali Shah, Advocate Supreme Court and Ms. Tasnim Ameen, Advocate-on-Record for Respondent No.1.

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

2018 S C M R 514

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Mushir Alam, Faisal Arab and Ijaz ul Ahsan, JJ

Syed SHABBAR RAZA RIZVI and others---Petitioners

Versus

FEDERATION OF PAKISTAN, MINISTRY OF LAW AND JUSTICE DIVISION through Secretary, Islamabad and others---Respondents

Constitutional Petitions Nos. 1, 2 and 10 of 2016, decided on 5th January, 2018.

(Petitions under Article 184(3) of the Constitution, 1973)

(a) Provisional Constitution Order [1 of 2007]---

----Art. 2(4)---Oath of Office (Judges) Order, 2007, Para. 3---Constitution of Pakistan, Art. 204---Contempt of Court Ordinance (IV of 2003), S. 3---Contempt of Court---Notices for contempt issued to former judges of the (Lahore) High Court for taking oath under the Oath of Office (Judges) Order, 2007 [made in pursuance of Provisional Constitution Order No. 1 of 2007 ("PCO 2007")]---Seven Member Bench of the Supreme Court, in the case of Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 25) passed an order, inter alia, restraining the Judges of the superior Courts from taking oath under the "PCO 2007" or any other unconstitutional instrument---Petitioners (former Judges of the Lahore High Court), having taken oath under the Oath of Office (Judges) Order, 2007 [made in pursuance of "PCO 2007"], continued to perform duties/act as Judges of the Lahore High Court---On account of the decision of the Supreme Court reported as Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), the petitioners, along with other Judges of the superior Courts who had taken oath under the Oath of Office (Judges) Order, 2007, were declared to have violated the restraint order passed in Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 25) and notices for contempt of Court under Art. 204 of the Constitution read with relevant provisions of the contempt of Court laws were issued to them---Questions were as to whether contempt of Court notices could have been issued to the petitioners, and whether petitioners could not be removed from office except under Art. 209 of the Constitution; held, that the said questions had already been dealt in detail by the Supreme Court in the cases of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483), Justice Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011 SC 680) and Proceedings Against: Justices (R) Iftikhar Hussain Chaudhry, etc. (PLD 2011 SC 197), therefore, petitioners were not entitled to be heard again on the said questions in the present petition---Said judgments were not per incuriam as none of the grounds for declaring a judgment as per curium were to be found therein---Notices for contempt of Court were issued to the petitioners as well as other Judges for violating the order of the Supreme Court whereby a specific direction was issued to the Judges of the High Court not to take oath under the "PCO 2007"or any other unconstitutional instrument---Sanctity had always been attached to a judicial order passed by the Supreme Court in a pending case and no one could be allowed to frustrate it, or refuse to accede to it or fail to follow a direction issued therein---Any person, who intentionally and deliberately violated any order of the Supreme Court, made himself liable to be proceeded against and punished for contempt of Court---On any count it could not be presumed that a Judge of the High Court was immune from the consequences of violation or willful defiance of an order of the Supreme Court---Petitions were dismissed accordingly.

Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Justice Hasnat Ahmed Khan v. Federation of Pakistan PLD 2011 SC 680 and Proceedings Against Justices (R) Iftikhar Hussain Chaudhry and others PLD 2011 SC 197 ref.

Mujibur Rahman Shami v. A Judge of the High Court PLD 1973 Lah. 805; K.L. Gaubaah v. The Hon'ble the Chief Justice and Judges of the High Court of Judicature at Lahore and another AIR 1942 FC 1; States of Rajasthan v. Prakash Chand and others AIR 1998 SC 1344; Rachapudi Subba Rao v. The Advocate General, Andhra Pradesh AIR 1981 SC 755 = 1991 Crl. Law J. 613 and Shri Harish Chandra Mishra and another v. The Hon'ble Mr. Justice S. Ali Ahmed AIR 1986 Pat. 65 distinguished.

(b) Provisional Constitution Order [1 of 2007]---

----Art. 2(4)---Oath of Office (Judges) Order, 2007, Para. 3---Constitution of Pakistan, Arts. 184(3) & 204---Contempt of Court Ordinance (IV of 2003), S. 3---Constitutional petitions before the Supreme Court challenging notices for contempt of Court issued to former judges of the (Lahore) High Court for taking oath under the Oath of Office (Judges) Order, 2007 [made in pursuance of Provisional Constitution Order No. 1 of 2007 ("PCO 2007")]---Maintainability---Questions and contentions raised by the petitioners (former judges of the Lahore High Court) in the present Constitutional petitions had already been agitated and decided against them by the Supreme Court in the cases of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483), Justice Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011 SC 680) and Proceedings Against Justices (R) Iftikhar Hussain Chaudhry, etc. (PLD 2011 SC 197)---By way of present Constitutional petitions petitioners were attempting to re-agitate all the points already raised in the said cases/judgments---In such a situation, the present Constitutional petitions under Art. 184(3) were absolutely incompetent and not maintainable.

(c) Constitution of Pakistan---

----Arts. 184(3), 185 & 188---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution---Scope---Where a person has/had the opportunity of filing a review or appeal against a judgment, and either filed a review/appeal and failed, or did not avail that opportunity, or failed to become a party in any pending review/appeal filed by another person against the same judgment, then he had no right to re-agitate the matter through a petition under Art. 184(3) of the Constitution---Article 184(3) was a constitutional provision which was meant for the purposes of enforcement of Fundamental Rights, where there was a question of public importance involved; it could not be exercised as a parallel review jurisdiction by the court, especially when the remedy of review had already been availed or declined.

(d) Constitution of Pakistan---

----Art. 189---Judgment of the Supreme Court---Per incuriam---Any judgment of the Supreme Court could be considered to be per incuriam but it was for the Judges to revisit any such judgment, if and when pointed out by any person during the course of hearing of any other case---Such a finding would be premised on the Court finding the same judgment to be against any provision of the Constitution or the law, or the principle(s) already settled by a larger Bench of the Court.

Ali Sibtain Fazil, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for Petitioners and Petitioners in person (in Constitutional Petitions Nos. 1 and 2 of 2016).

Sh. Zamir Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitutional Petition No. 10 of 2016).

Nemo for Respondent (in all cases).

2018 S C M R 556

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sajjad Ali Shah, JJ

CONTEMPT PROCEEDINGS AGAINST SENATOR NEHAL HASHMI: In the matter of

Criminal Original Petition No. 154 of 2017 in Criminal Miscellaneous Application No. 985 of 2017 in Civil Miscellaneous Application No.2939 of 2017 in Constitutional Petition No. 29 of 2016 and others, decided on 1st February, 2018.

(Contempt proceedings against Senator Nehal Hashmi on the basis of the speech made by him on 28th May, 2017)

Per Asif Saeed Khan Khosa, J; Sajjad Ali Shah, J agreeing; Dost Muhammad Khan, J dissenting.

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

----Ss. 3, 5(2) & 18---Constitution of Pakistan, Art. 204(2)---Contempt of Supreme Court---Obstructing the process of law and justice---Bringing the authority of the court and administration of law into disrespect, disrepute or hatred---Unconditional apology submitted belatedly after contesting contempt proceedings---Effect---Accused-contemnor delivered a speech wherein he was alleged to have threatened Judges of the Supreme Court, their families and children and Members of a Joint Investigation Team and their families and children---Offending words uttered by the accused in the speech were nothing but an effort to obstruct, interfere with and prejudice the proceedings pending before the Supreme Court and before a Joint Investigation Team working under the direct command and supervision of the Supreme Court---Words uttered by the accused in public were meant to interfere with, obstruct and prejudice the process of law, justice and the Supreme Court and were also intended to bring the authority of Supreme Court and administration of law into disrespect, disrepute or hatred within the meanings of S. 3 of the Contempt of Court Ordinance, 2003 and Art. 204 of the Constitution---Manner in which the accused had acted on the occasion was surely prejudicial to the integrity and independence of the judiciary of the country as a whole as it had defamed and brought it into ridicule---Contempt committed by the accused was quite grave and was one which was substantially detrimental to the administration of justice besides tending to bring the Supreme Court and the Judges of the Supreme Court into disrespect and hatred---Initially the accused had contested the proceedings and his belated apology submitted after about seven months of commencement of the contempt proceedings and at the fag end of such proceedings when the evidence of the prosecution had already been completely recorded and closed spoke volumes about the apology being an afterthought---Conduct of the accused in such regard impinged upon bona fide of his apology and, thus, the same had not been found to be meriting acceptance---Supreme Court held the accused guilty of committing contempt of the Supreme Court. [Majority view]

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

----S. 5(2)---Contempt of Court---Unconditional apology---Acceptance by court---Bona fides of contemnor---Section 5(2) of the Contempt of Court Ordinance, 2003 dealing with submission of apology by a person accused of having committed Contempt of Court did not envisage an automatic acceptance of the apology by the court but made its acceptance subject to the court's satisfaction about its bona fide. [Majority view]

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

----Ss. 3 & 5(1)---Constitution of Pakistan, Arts. 63(1)(g) & 204(2)---Contempt of Supreme Court---Sentence---Mitigating circumstances---Disqualification from membership of Parliament---Offending words publically uttered by the accused-contemnor had received wide publicity nationally as well internationally, and they amounted to a grave contempt of the Supreme Court yet there were some mitigating circumstances available warranting withholding the maximum sentence provided for the offence by the law---Accused was about sixty years of age, he was an Advocate for the last about thirty years, he had submitted an unconditional apology though belatedly, he had thrown himself at the mercy of the Court and had decided not to contest these proceedings and upon his conviction for the offence of Contempt of Court he was to be visited with a disqualification under Art. 63(1)(g) of the Constitution---Accused was convicted for the offence under S. 3 of the Contempt of Court Ordinance, 2003, read with Art. 204(2) of the Constitution and was sentenced under S. 5(1) of the Ordinance to simple imprisonment for one month and a fine of Rs. 50,000/- (Rupees fifty thousand only) or in default of payment thereof to undergo simple imprisonment for a further period of fifteen days---Since the accused had been convicted and sentenced by the Supreme Court for acting in a manner prejudicial to the integrity and independence of the judiciary and for defaming and bringing the judiciary into ridicule, therefore, by virtue of Art. 63(1)(g) of the Constitution he ipso facto stood disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) for a period of five years from date of present judgment. [Majority view]

Muhammd Azhar Siddique and others v. Federation of Pakistan and others PLD 2012 SC 774 ref.

Ashtar Ausaf Ali, Attorney-General for Pakistan/Prosecutor for the Prosecution.

Kamran Murtaza, Advocate Supreme Court with the Respondent in person for Respondent.

2018 S C M R 566

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

Major (R) PERVAIZ IQBAL---Petitioner

Versus

MUNIR AHMAD and others---Respondents

Civil Petition No. 1598 of 2016, decided on 15th January, 2018.

(On appeal against the judgment dated 01.04.2016 passed by the Lahore High Court, Lahore in RSA No.15 of 2009)

Specific Relief Act (I of 1877)---

----S. 12--- Suit for specific performance of agreement to sell, filing of---Limitation period, commencement of---Doctrine of imputing intention---Scope---Original owners of subject property entered into an agreement with the petitioner to sell the property---While the transaction under the said agreement was yet to be completed, the petitioner on 10.07.1986 entered into an agreement-with buyers to sell a portion of the subject property that was yet to be transferred in the name of the petitioner---At the time of execution of said agreement, the buyers paid earnest money and the period for paying the remaining amount was extended upto 16.09.1986, by which time it was expected that the property under the earlier agreement would stand transferred in the name of the petitioner---Original owners, however, did not transfer the property to the petitioner on the basis of agreement with him, therefore the petitioner in turn could not transfer the same to the buyers---Petitioner filed a suit for specific performance of the agreement executed with the original owners, wherein the buyers were also arrayed as plaintiffs, however, during the pendency of the suit, the buyers were deleted from the array of the plaintiffs vide order dated 29.01.1991, and the buyers were directed to secure their rights under their agreement with the petitioner by filing a separate suit---Subsequently in the suit filed by the petitioner against the original owners a compromise settlement agreement was reached and a compromise decree was passed in favour of the petitioner on 21.12.1994---While execution of the compromise decree was yet to be carried out, the buyers filed a suit against the petitioner on 27.10.1996 seeking specific performance of their agreement with the petitioner---Petitioner on the basis of compromise decree passed in his suit eventually got the property transferred in his name on 02.03.2000---Suit filed by the buyers against the petitioner continued and was finally decreed---Petitioner challenged the decree in appeal on the ground that the suit filed by buyers on 27.10.1996 was barred by time, and that the limitation period of three years for filing the suit had to be reckoned from the date when the order dated 29.01.1991 in his suit was passed whereby the Court deleted the names of the buyers from the array of the plaintiffs by giving them the opportunity to seek remedy by bringing their own suit; held, the petitioner was only legally competent after 02-03-2000 to honour his commitment with the buyers---Petitioner and the buyers knew from the very inception that unless the original owners conveyed the property in question in the name of the petitioner the transaction could not be completed---In such circumstances, the fixation of the time under the agreement was subject to such conveyance---Real intention of the parties to an agreement had to be gathered from what they intended at the time of the execution of the agreement which in the present case was that upon transfer of the property by the original owners in the name of the petitioner, the petitioner would then transfer part of subject property to the buyers---Such intention had to be imputed to the petitioner and the buyer when they entered into their agreement on 10.07.1986---Order of the Court dated 29.01.1991 whereby the buyers were directed to file their own suit only acknowledged their right to file their own suit to seek specific performance of the agreement---Even when the buyers filed their suit in 1996, the petitioner had not gained the title to the property in question hence their claim was still premature---Cause of action could have only arisen to the buyers when the petitioner had come in the position to complete the transaction with them and that accrued on 02.03.2000 when the property in question was conveyed in the name of the petitioner therefore no decree prior to said date could have been passed in favour of the buyers compelling the petitioner to convey part of subject property to the buyers---Cause of action, therefore, accrued to the petitioner on 02.03.2000 and at that time suit for specific performance filed by the buyer was already pending, therefore, question that it was barred by time did not arise at all---Petition which was converted into appeal was partly allowed accordingly.

Lakshminarayana v. Singaravelu AIR 1963 Madras 24 and Inam Naqshaband v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314 ref.

Shahzada Mazhar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mehmood Ahmed Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (1 (b), (c)).

2018 S C M R 574

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz Ul Ahsan, JJ

SUO MOTU ACTION TAKEN UP IN COURT: In the matter of

Suo Motu action, decided on 1st February, 2018.

Constitution of Pakistan---

----Art. 184(3)---Suo motu action by the Supreme Court in relation to bank accounts maintained by citizens of Pakistan in foreign countries without disclosing the same to competent authorities in Pakistan or paying taxes on the same---Supreme Court observed that prima facie, it appeared that such money was siphoned off without the payment of taxes through illegal channels and represented either ill-gotten gains or kickbacks from public contracts; that such money created gross disproportion, inequality and disparity in the society, which warped economic activity and growth, and constituted plunder and theft of national wealth; that the society and economy of the country was being adversely affected by illegal and surreptitious theft of national wealth, which was stashed in foreign countries; that the same could otherwise be utilized for the welfare of the people in projects such as education, health and public welfare, and that such delinquency constituted violation of the Fundamental Rights of the citizens and was a matter of great public importance---Supreme Court directed that the State Bank of Pakistan shall before the next date of hearing submit a comprehensive report regarding steps which had been taken under the International agreements/treaties/protocols to identify the citizens who held accounts in foreign jurisdictions and tax havens; that the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the Ministry of Finance shall submit a report about the steps taken, in collaboration with other State institutions, for retrieval of the said money; that the Federal Board of Revenue shall also submit a report providing details of the steps taken on the basis of information available, inter alia, through certain leaked documents that provided details of financial information of thousands of offshore entities, and the action taken against citizens holding properties and bank accounts in foreign countries; that all intelligence agencies of the State and the Federal Investigation Agency shall share all requisite information available with them with the Supreme Court, and that the State Bank of Pakistan, the Federal Board of Revenue, the Ministry of Finance and Ministry of Foreign Affairs shall collaborate with each other, collect and share information and approach the foreign jurisdictions to obtain such/other further information, as may be necessary, through legal and diplomatic channels--- Order accordingly.

2018 S C M R 577

[Supreme Court of Pakistan]

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

KAMAL DIN alias KAMALA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 195-L of 2009, decided on 13th October, 2017.

(Against the judgment dated 08.04.2009 passed by the Lahore High Court, Lahore in Criminal Appeal No.108 of 2007 and Capital Sentence Reference No. 9-T of 2007)

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

----Ss. 302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Re-appraisal of evidence---Benefit of doubt---In the FIR the culprits had not been nominated and they were mentioned as unknown---No description of the culprits had been recorded in the FIR---Accused had been arrested in connection with the present case at a time when he was already under arrest in connection with some other criminal case---According to the FIR itself the firing resorted to at the spot had been made from behind some trees, and, thus, at best the injured eye-witnesses under assault could only have a fleeting glance at the assailants while the witnesses were taking shelter and were running for their lives---Investigating officer had clearly stated that he could not deny that the accused had been shown to the eye-witnesses before holding of the test identification parade---One of the injured eye-witnesses, had acknowledged before the Trial Court that the accused persons had been shown to him at the police station before holding of the test identification parade---Proceedings of the test identification parade clearly showed that the accused had not been picked up by the eye-witnesses with reference to any role played by him during the occurrence---Apart from that the test identification parade was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go, which was the improper procedure for holding such a parade---Safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the Trial Court through production of any witness concerned with such custody and transmission---Two of the eyewitnesses had been declared hostile as they had refused to support the case of the prosecution---One of the co-accused had been acquitted of the charge and his acquittal had not been challenged by the State or the complainant party before the High Court---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Convictions and sentences of the accused recorded and upheld by the courts below were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

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

----Art. 22---Test identification parade---Identification of an accused person without reference to the role allegedly played by him during the occurrence was shorn of any evidentiary value.

Azhar Mehmood and others v. The State 2017 SCMR 135; Muhammad Fayyaz v. The State 2012 SCMR 522; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 ref.

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

----Art. 22---Test identification parade---Identification of many accused persons in one go was not proper besides being unsafe.

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; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Gulfam and another v. The State 2017 SCMR 1189 ref.

Muhammad Iqbal Bhatti, Advocate Supreme Court and Shahid Azeem, Advocate-on-Record for Appellant.

Muhammad Usman Mirza, Deputy Prosecutor-General, Punjab for the State.

2018 S C M R 581

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another---Appellants

Versus

Messrs BRITISH HEAD AND FOOTWEAR STORES and others---Respondents

Civil Appeals Nos. 100-K and 101-K of 2015, decided on 28th November, 2017.

(Against the Order 26.5.2015 passed by the High Court of Sindh in C.P. 382 of 2005)

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

----S. 8(1)---Fair rent, fixation of---Four factors listed under S. 8 of the Sindh Rented Premises Ordinance, 1979 for determining fair rent---Scope---Landlord did not have to prove a hike in respect of all said factors, therefore, it was not necessary that all four factors mentioned in S. 8(1) of the Ordinance must co-exist in each and every case for fixation of fair rent---Prime factor had always been the prevalent market rent of similar premises situated in similar circumstances in the same or adjoining locality.

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

----S. 8(1)---Fair rent, fixation of---Agreement for payment of rent on monthly lump sum basis---Landlord seeking calculation of rent on per square feet basis---Landlord produced evidence in respect of prevalent per square feet rent of similar premises situated in similar circumstances, in the same or adjoining locality but the courts below ignored such evidence on the grounds that the similar building was relatively a new one and secondly, that the parties had agreed for a lump sum rent instead of per square feet and therefore, increase claimed in rent on the basis of per square feet could not be allowed; held, that restraint exercised by the Court below from fixing fair rent on per square feet basis for the reason that the parties had agreed to a rent on lump sum basis appeared to be misplaced---Even where there was an agreement between the landlord and tenant for payment of monthly lump sum rent, such an agreement could not be a clog on the powers of the Rent Controller to fix fair rent on square feet basis in accordance with the prevailing norms and to ensure that the fair rent so determined was in consonance with the quantum of rent of similar premises situated in similar circumstances in the same or adjoining locality---Courts below failed to take into consideration the fact that rent for premises situated in similar circumstances in the same locality on the ground floor facing main road was being charged at per square feet and not in lump sum---Consequently, the yardstick for fixation of rent should have been the rent on per square feet basis as was being charged by the landlord from his other tenants of the same locality and not on lump sum basis---Average rate of rent which the landlord was charging from his other tenants of the same locality was around Rs.22/- per sq. ft. per month---Supreme Court keeping in view the location of the subject premises, fixed the fair rent of the subject premises at Rs. 22/-per square feet per month for the ground floor and Rs.18/- per square feet per month for the mezzanine floor---Appeal filed by the landlord was allowed accordingly.

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

----S. 8(1)--- Fair rent, fixation of---Rent Controller, powers of---Scope --Determination of fair rent was the sole domain of the Rent Controller and even an agreement between the parties barring each other from approaching the Rent Controller for getting fixation of fair rent could not operate as a bar to the jurisdiction of the Rent Controller of fixing fair rent.

Tariq Ali Baqar v. New Goodwill Computers 2011 SCMR 554 ref.

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

----S. 9---Fair rent, fixation of---High Court ordering increase of 25% in rent after every three years---Question as to whether such increase was justified---Landlord had applied for fixation of fair rent in the year 1992 and such application remained pending with the Rent Controller for almost 13 years and thereafter before the High Court for almost 10 years---Increase of 25% after every three years allowed by the High Court after taking into consideration subsequent events and prevailing circumstances and to avoid multiplicity of the litigation and for doing complete justice between the parties did not call for any interference---Appeal filed by the tenant was dismissed accordingly.

Volkart (Pakistan) Ltd. v. Interavia Pakistan Limited, Karachi 2001 SCMR 671 ref.

Mian Mushtaq Ahmed, Advocate Supreme Court for Appellants (in C.A. No. 100-K of 2015).

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A. No. 101-K of 2015).

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Respondent No.1 (in C.A. No. 100-K of 2015).

Mian Mushtaq Ahmed, Advocate Supreme Court for Respondent No.1 (in C.A. No. 101-K of 2015)

Respondents Nos. 2 and 3 Pro forma (in both cases).

2018 S C M R 590

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab and Ijaz Ul Ahsan, JJ

NASIR RAZA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHELUM and another---Respondents

Civil Petition No. 2393 of 2017, decided on 3rd January, 2018.

(Against judgment dated 19.05.2017 of Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No. 1746 of 2014)

Guardians and Wards Act (VII of 1890)---

----Ss. 7 & 25---Custody and guardianship of minor children after death of their mother---Father as the natural guardian of minors in comparison to maternal grandmother---Petitioner/father was the natural guardian of the children after their mother's death---On account of their respective ages, the right of Hizanat of the minors (in the present case) no longer vested in their maternal grandmother---Father of the children was ready and willing to look after them and had the financial resources to fulfil their material needs and educational requirements---Father had neither returned to his job abroad nor remarried keeping in view the welfare and best interest of his children---Children could not be deprived of the company, love and affection of their real father---Paternal grandmother of the children was also available in the father's house to help him look after and raise the children---Father did not suffer from any legal disability that may deprive him from his legal right to have custody of his children---Prima facie, the best interest and welfare of the minors laid in handing over their custody to their real father---Supreme Court directed that the custody of the minors shall be handed over to their father within one week, and that the father shall ensure that the minors spent week-ends with their maternal grandmother for a specified time period.

Basharat Ullah Khan, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioner.

Saeed Yusuf Khan, Advocate Supreme Court along with Respondent No.2 and Minor for Respondents.

2018 S C M R 593

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

DILAWAR MEHMOOD alias DULLI and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 135, Criminal Petition No. 318-L of 2014 and Criminal M.A. No. 75-L of 2017 in Jail Petition No. 135 of 2014, decided on 15th January, 2018.

(On appeal from the judgment of the Lahore High Court Lahore dated 11.02.2014 passed in CSR No. 75-T of 2010 and Crl. Appeal No.2830 of 2010)

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

----S. 7---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---"Terrorism"---Scope---Occurrence took place at cattle market---Prosecution alleged that the accused along with his co-accused armed with Kalashnikovs came at the spot and made straight firing at the deceased, as a result whereof the latter succumbed to the injuries---Motive behind the occurrence as stated in the FIR was previous enmity---Keeping in view the time of occurrence, place of occurrence, the mode and manner of the occurrence and the alleged motive between the parties coupled with other circumstances, the provisions of Anti-Terrorism Act, 1997 were not attracted in the present case---Conviction/sentence of the accused under S. 7(a) of the Anti-Terrorism Act, 1997 was set aside in circumstances.

Malik Mateeullah, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for Petitioners (in Crl. M.A. No. 75-L of 2017and J.P. No.135 of 2014).

Nemo for Petitioner (in Crl. P. No. 318-L of 2014).

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

2018 S C M R 598

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sardar Tariq Masood and Faisal Arab, JJ

MUHAMMAD RAFIULLAH and others---Petitioners

Versus

ZARAI TARAQIATI BANK LIMITED (ZTBL) through President, Islamabad and another---Respondents

Civil Petitions Nos. 3078 to 3130, 3163 to 3180, 3184 to 3203, 3244 to 3258, 3263, 3285 and 3286 of 2016 and Civil Misc. Applications Nos.6624 to 6626 of 2016 and 5569 of 2017, decided on 22nd November, 2017.

(Against the judgment dated 29.06.2016 of the Islamabad High Court, Islamabad, passed in I.C.As. Nos. 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 170 of 2014, 994, 998 of 2013 and 181 of 2018)

(a) Civil service---

----Terms and conditions of service, alteration in--- Terms and conditions of service could not be unilaterally altered by the employer to the disadvantage of the employees.

(b) Civil service---

----Service benefits---Where an employee voluntarily accepted and received benefits under some arrangement with the employer out of his own free will then he could not turn around and seek benefits that were ordinarily applicable to other employees.

Zarai Taraqiati Bank Limited v. Said Rehman and others 2013 SCMR 642 ref.

(c) Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981---

----Preamble---Zarai Taraqiati Bank Limited (Staff Regulations), 2005, Preamble---Constitution of Pakistan, Art. 25---Plea of discrimination---Reasonable classification between two sets of employees---Employees of Agricultural Development Bank of Pakistan received their pensionary benefits computed on basis of pension factor of 2.33%---Before Agricultural Development Bank of Pakistan was converted into Zarai Taraqiati Bank Limited, the bank issued a circular which reduced the pension factor to 1.15%---Said circular was applicable to those employees who opted for the Golden Handshake Scheme or were covered under the Zarai Taraqiati Bank Limited (Staff Regulations), 2005 ("first set of employees")---Employees of the Bank, who had neither opted under the Golden Handshake Scheme nor under Zarai Taraqiati Bank Limited (Staff Regulations), 2005 ("second set of employees"), upon their retirement were also given pensionary benefits on the basis of the revised pension factor of 1.15%, however on the orders of the High Court their pension factor was restored to 2.33%---First set of employees contended that their pension factor should also be restored to 2.33% as their terms and conditions of service could not be changed by the Bank unilaterally, and that they were being discriminated against in reference to the second set of employees; held, that the first set of employees received all benefits including pensionary benefits as provided in the scheme under which they exercised their option---Said employees on account of their own voluntary act considered the most beneficial option, which disentitled them from claiming pensionary benefits under Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981---Said employees could be categorized distinctly from the second set of employees who had not opted either under the Golden Handshake Scheme of 2002 or under Zarai Taraqiati Bank Limited (Staff Regulations), 2005---Plea of discrimination was, therefore, not available to the first set of employees being of distinct class---Petition for leave to appeal was dismissed accordingly.

National Bank of Pakistan v. Nasim Arif Abbasi 2011 SCMR 446 and State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280 ref.

Abdur Rehman Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3078, 3079, 3083, 3085 to 3091, 3093 and 3123 to 3130 of 2016).

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3094 to 3121 of 2016).

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3092, 3080 to 3082, 3084, 3122, 3163 to 3180, 3184 to 3190 of 2016).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3191 to 3203, 3244 to 3258, 3263, 3285 and 3286 of 2016).

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Applicants (in C.M.As. Nos. 6624 to 6626 of 2016).

Ch. Imtiaz Ahmed, Advocate Supreme Court for Applicants (in C.M.A. No. 5569 of 2017).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3078 to 3130, 3163 to 3180, 3184 to 3190 of 2016).

2018 S C M R 662

[Supreme Court of Pakistan]

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

GERRY'S INTERNATIONAL (PVT.) LTD.---Appellant

Versus

AEROFLOT RUSSIAN INTERNATIONAL AIRLINES---Respondent

Civil Appeals Nos. 539 of 2003 and 1773 of 2016, decided on 1st January, 2018.

(On appeal against the judgments dated 19.03.2003 and 08.04.2016 of the High Court of Sindh, Karachi passed in J.M.A. 22-A/99 and H.C.A. 239/1999)

(a) Arbitration Act (X of 1940)---

----Ss. 30 & 33---Grounds for setting aside arbitration award---Scope---Patent illegality---Error apparent on the face of the award---Award of the arbitrator who was chosen as judge of facts and of law, between the parties, could not be set aside unless the error was apparent on the face of the award or from the award it could be inferred that the arbitrator had misconducted himself under Ss. 30 & 33 of the Arbitration Act, 1940---While making an award the Rule of the Court, in case parties had not filed objections, the Court was not supposed to act in a mechanical manner, like the post office and put its seal on it but had to look into the award and if it found patent illegality on the face of the award, it could remit the award or any of the matter(s) referred to arbitrator for reconsideration or set aside the same---While doing so, the Court, however, would not try to find out patent irregularity, and only if any patent irregularities could be seen on the face of award/arbitration proceedings like the award was beyond the scope of the reference or the agreement of arbitration was a void agreement, or the arbitrator awarded damages on black market price, which was prohibited by law, or the award was given after superseding of the arbitration, etc., could the same be set aside.

(b) Arbitration Act (X of 1940)---

----Ss. 26-A & 30---Arbitrator, powers of---Scope---Grounds for setting aside arbitration award---Principles stated.

Following are the general principles with regard to powers of an arbitrator and the grounds upon which an arbitration award could be set aside:

(i) When a claim or matters in dispute were referred to an arbitrator, he was the sole and final Judge of all questions, both of law and of fact;

(ii) The arbitrator alone was the judge of the quality as well as the quantity of evidence;

(iii) The very incorporation of section 26-A of the Arbitration Act, 1940 requiring the arbitrator to furnish reasons for his finding was to enable the Court to examine that the reasons were not inconsistent and contradictory to the material on the record. Although mere brevity of reasons shall not be ground for interference in the award by the Court;

(iv) A dispute, the determination of which turned on the true construction of the contract, would be a dispute, under or arising out of or concerning the contract. Such dispute would fall within the arbitration clause. The test was whether recourse to the contract, by which the parties were bound, was necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract was necessary, then the matter must come within the scope of the arbitrator's jurisdiction;

(v) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract;

(vi) The authority of an arbitrator was derived from the contract and was governed by the Arbitration Act, 1940. A deliberate departure or conscious disregard of the contract not only manifested a disregard of his authority or misconduct on his part but it may tantamount to mala fide action and vitiate the award;

(vii) If no specific question of law was referred, the decision of the arbitrator on that question was not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally;

(viii) To find out whether the arbitrator had travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. An arbitrator acting beyond his jurisdiction was a different ground from an error apparent on the face of the award;

(ix) The Court could not review the award, nor entertain any question as to whether the arbitrators decided properly or not in point of law or otherwise;

(x) It was not open to the Court to re-examine and reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator was wrong;

(xi) Where two views were possible, the Court could not interfere with the award by adopting its own interpretation;

(xii) Reasonableness of an award was not a matter for the Court to consider unless the award was preposterous or absurd;

(xiii) An award was not invalid if by a process of reasoning it may be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion. The only exceptions to the said rule were those cases where the award was the result of corruption or fraud, and where the question of law necessarily arose on the face of the award, which one could say was erroneous;

(xiv) It was not open to the Court to speculate, where no reasons were given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion;

(xv) It was not open to the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it was not disclosed by the terms of his award;

(xvi) The Court did not sit in appeal over the award and should not try to fish or dig out the latent errors in the proceedings or the award. It could set aside the award only if it was apparent from the award that there was no evidence to support the conclusions or if the award was based upon any legal proposition which was incorrect;

(xvii) The Court could set aside the award if there was any error, factual or legal, which floated on the surface of the award or the record;

(xviii) The arbitrator was not a conciliator and could not ignore the law or misapply it in order to do what he thought was just and reasonable. The arbitrator was a tribunal selected by the parties to decide their disputes according to law and so was bound to follow and apply the law, and if he did not do so he could be set right by the Court provided the error committed by him appeared on the face of the award;

(xix) There were two different and distinct grounds (for setting aside an award); one was the error apparent on the face of the award, and the other was that the arbitrator exceeded his jurisdiction. In the latter case, the Courts could look into the arbitration agreement but in the former, it could not, unless the agreement was incorporated or recited in the award;

(xx) An error in law on the face of the award meant that one could find in the award some legal proposition which was the basis of the award and which could then be said to be erroneous;

(xxi) Even in the absence of objections, the Award may be set aside and not made a Rule of the Court if it was a nullity or was prima facie illegal or for any other reason, not fit to be maintained; or suffered from an invalidity which was self-evident or apparent on the face of the record. The adjudicatory process is limited to said extent only;

(xxii) While making an award rule of the Court, in case parties had not filed objections, the Court was not supposed to act in a mechanical manner, like a post office but must subject the award to its judicial scrutiny;

(xxiii) Though it was not possible to give an exhaustive definition as to what may amount to misconduct, it was not misconduct on the part of the arbitrator to come to an erroneous decision, whether his error was one of fact or law and whether or not his findings of fact were supported by evidence;

(xxiv) Misconduct was of two types: "legal misconduct" and "moral misconduct". Legal misconduct meant misconduct in the judicial sense of the word, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which were cast on an arbitrator; and any irregularity of action which was not consistent with general principles of equity and good conscience. Regarding moral misconduct; it was essential that there must be lack of good faith, and the arbitrator must be shown to be neither disinterested nor impartial, and proved to have acted without scrupulous regard for the ends of justice;

(xxv) Misconduct was not akin to fraud, but it meant neglect of duties and responsibilities of the Arbitrator;

(xxvi) Some of the examples of the term "misconduct" were, if the arbitrator or umpire failed to decide all the matters which were referred to him; if by his award the arbitrator or umpire purported to decide matters which had not in fact been included in the agreement or reference; if the award was inconsistent, or was uncertain or ambiguous; if there had been irregularity in the proceedings, and if there was some mistake of fact, although in that case the mistake must be either admitted or at least clear beyond any reasonable doubt;

(xxvii) The arbitrator was said to have misconducted himself in not deciding a specific objection raised by a party regarding the legality of extra claim of the other party.

(c) Arbitration Act (X of 1940)---

----S. 30---Grounds for setting aside arbitration award---Scope---Plea of fraud, misrepresentation and concealment of facts---Respondent (airline company) entered into a General Sales Agreement ("the GSA agreement") with the appellant-company for sale of its tickets---Clause of the GSA agreement ("the Clause") provided that unless otherwise agreed between the parties, the respondent shall not appoint any third party to carry out on its behalf service similar to those described in the GSA agreement in the territory in which the appellant-company had undertaken the service--- Respondent subsequently ended the agreement---Appellant-company filed a suit challenging such termination and sought enforcement of the GSA agreement---Dispute was referred to arbitration and an award was made in favour of the respondent which was made Rule of the Court---Appellant-company challenged the decree of the court making the award Rule of the Court on the ground that it was vitiated because the GSA agreement had been procured by the respondent through fraud, misrepresentation and concealment of facts as the 'Clause 'of the GSA agreement unequivocally mentioned that the appellant-company would be the exclusive general sales agent for inter alia the sale of the tickets on behalf of the respondent but it was not disclosed that an earlier bilateral agreement was executed between the respondent and another airline for the same purpose which had not been terminated; held, that from the language of the 'Clause' in question it was abundantly clear that the respondent had bound itself not to appoint any other person as its agent to carry out the same functions as were being done by the appellant, which commitment must be for the 'future' and this was evident from the word "shall" used therein---At the time of entering into the agreement, it was the duty of the appellant-company to enquire and ensure that no other person had been granted such authority---Appellant-company took the stance that the GSA agreement was a result of fraud and misrepresentation, as such, the award was vitiated, however, the appellant-company itself filed a suit for specific performance not only relying upon the GSA agreement but also for its specific performance and recovery of certain amounts thereunder---Appellant-company could not be allowed to blow hot and cold in the same breath---Appeal was disposed of accordingly.

(d) Arbitration Act (X of 1940)---

----S. 8---Dispute over appointment of arbitrator---'General' and 'specific' provisions in agreement---Special/specific provision in the agreement between parties dealing with the appointment of arbitrator shall take effect to the exclusion of a general provision which dealt with the interpretation of the agreement as a whole.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Khalid A. Rehman, Advocate Supreme Court for Respondent.

2018 S C M R 691

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary Capital Administration and Development Division, Islamabad and others---Appellants

Versus

NUSRAT TAHIR and others---Respondents

Civil Appeals Nos. 1631 to 2112 of 2017, Civil Appeal No. 216 of 2016 and Civil Appeals Nos. 806 to 811 of 2016, decided on 17th January, 2018.

(On appeal from the judgments dated 18.7.2017, 11.1.2016, 05.10.2015 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 565 to 573, 757 to 793, 894-918-A, 919-943, 998-1005, 1005-A, 1006-1045, 1108-1179, 1224-1243, 1265-1325, 2327-2350, 2352-2368-A, 2369, 2370, 2372-2443, 2446-2449, 2453, 2451, 2452, 2450, 2454, 2484, 2487-2501, 2508-2520(R)CS/2016, 867-872(R)CS/13, 224(R)CS/15 etc.)

Career Structure for Health Personnel Scheme Ordinance (VI of 2011)---

----S. 2(b) & Sched. I---Employees of different institutions functioning under the Directorate General of Special Education---Entitlement to payment of health allowance---Health allowance was allowed to said employees vide certain Office Memoranda ("the Memorandums")---Plea of Federal Government that health allowance was only for employees of a health organization, whereas the employees in question were engaged in the process of education, training and rehabilitation of disabled children and therefore did not fall within the ambit of a health organization; held, that education, training and rehabilitation of disabled persons were services provided in the health sector---Said services fell within the terms of Schedule-I to the Career Structure for Health Personnel Scheme Ordinance, 2011 and therefore the providers thereof qualified as health personnel---Memorandums issued by the Finance Division, Government of Pakistan still held the field in their original terms---Grant of the health allowance and the terms of eligibility to receive the same were determined by the competent authority, i.e. Ministry of Finance in accordance with Rules of Business of the Federal Government---Memorandums were acted upon for a certain period of time before the Finance Division stopped the payment of allowance to the employees in question---Payment of the health allowance to the employees had conferred a vested right upon them, thus, in such circumstances, the Executive was barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients---Appeals were dismissed by the Supreme Court and the entitlement of employees of the Directorate General of Special Education, allied institutions/centers, National Council for Rehabilitation of Disabled Persons ("NCRDP") and National Trust for the Disabled ("NTD") to receive the health allowance was affirmed.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and The Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

Sajid Ilyas Bhatti, DAG, Syed Rifaqat Hussain Shah, Advocate-on-Record, Ms. Saadia Kanwal, S.O. Fin. Abid Hussain Channa, S.O. Fin. Sajid Javed, Assistant, Legal Fin. and Abdul Razzaq, AAO MEG Rawalpindi for Appellants (in all cases).

Respondents in person.

Muhammad Ilyas Lodhi, Advocate Supreme Court and Malik Itaat Hussain Awan, Advocate Supreme Court for Respondents (in C.A. No. 216 of 2016).

Muhammad Makhdoom Ali Khan, Senior Advocate Supreme Court and Sikandar Bashir Mohmand, Advocate Supreme Court for Amicus Curiae.

2018 S C M R 698

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

FAYYAZ HUSSAIN and others---Appellants

Versus

Haji JAN MUHAMMAD and others---Respondents

Civil Appeals Nos. 834 to 845, 1062 to 107 of 2005 and Civil Miscellaneous Applications Nos. 3244 to 3246, 5008, 3661, 3663 of 2005, 1914 to 1916 of 2006, 698 to 706, 514 to 525, 686 to 697 of 2007 and 1949 to 1951 of 2011, decided on 30th January, 2018.

(Against judgment dated 17.05.2005 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in C.R. 133/1990, C.R. 527 to 529, 550 to 552/1989, C.R. 134 to 135/1990, C.R. 527-D to 528-D, 550-D to 552-D/1989, C.R. 134-D and 135-D/1990)

Custom---

----Inheritance---Property held by widow as limited owner under custom---Where a female recorded in special Jamabandi as a limited owner under custom migrated to Pakistan and filed a claim for allotment on basis of her ownership in India, the property allotted to her in lieu of the limited estate abandoned in India would on her death devolve on the heirs of the last male owner of the property left in India and not on her own heirs---Mutation entries, in the present case, clearly showed that the widow did not acquire the subject property in India as full owner, and her status throughout had been of limited owner under custom---When the widow filed the claim in Pakistan in lieu of the property of her deceased husband, the last male owner, the property allotted to her conferred on her a right as a limited owner and in case of her death or termination of the limited ownership, the property was to devolve on the heirs of the last male owner namely her deceased-husband and not on her heirs as full owner---Appeal was dismissed accordingly.

Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 applied.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Appellants (in C.As. Nos.834 to 842 of 2005).

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court for Appellants (in C.As. Nos.834 to 845 of 2005).

M. Munir Paracha, Advocate Supreme Court for Appellants (in C.As. Nos.1052 to 1070 of 2005).

Nemo for Applicants (in C.M.A. No.5008 of 2005).

Mrs. Anjum Naz Malik, Advocate Supreme Court for Applicants (in C.M.As. Nos.514 to 525 and 686 to 706 of 2007).

Mansoor Hussain for Applicant and Applicant in person (in C.M.A. No. 1915 of 2006).

Ch. Munir Sadiq, Advocate Supreme Court for Applicants (in C.M.A. No. 1914 of 2006).

Nemo for Respondents (in C.As. Nos.836 to 845 and 1062 to 1070 of 2005).

M. Munir Paracha, Advocate Supreme Court and Umar Aslam, Advocate Supreme Court for Respondents (in C.A. No.834 of 2005).

2018 S C M R 705

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

CIVIL APPEALS NOS. 2215 TO 2222 OF 2006

(On appeal from the judgment dated 2.12.2003 of the High Court of Sindh, Karachi passed in Const. Ps. Nos. D-680 of 1989, 8-D of 1991, D-452 of 1991 and D-2474 of 1995)

AND

CRL. ORIGINAL PETITION NO. 31 OF 2008

(Contempt matter/disobedience of the Court order)

YOUNUS HABIB and others---Appellants

Versus

IMRANUR RASHID and others---Respondents

Civil Appeals Nos. 2215 to 2222 of 2006 and Criminal Original Petition No. 31 of 2008, decided on 16th February, 2018.

(a) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) [as amended by Act XXXI of 1951] [since repealed]---

----Ss. 2(2)(d) & 12(3)(b)---Land Acquisition Act (1 of 1894), Ss. 4 & 16---Pakistan Administration of Evacuee Property Act (XII of 1957), S. 4(d) [since repealed]---Dispute regarding proprietary title of land---Disputed land was originally owned by a registered Association---Appellants on the one hand claimed that disputed land was evacuee land and they had purchased the same from the 'haaris' of the said land to whom certain leasehold rights had been granted by the Evacuee Trust Property Board (ETPB), whereas the respondents, who were allottees of a Housing Society claimed that the land had been acquired by the Federal Government and transferred to the Housing Society by the concerned Development Authority; held, that after independence, the Association became an evacuee and as such its properties also became evacuee property---Perusal of Paragraph 1 of Schedule appended with Martial Law Regulation No.57 showed that the property of the Association was mentioned as property belonging to the defunct Association and its supervision vested the Evacuee Trust Property Board---In terms of S. 12(3)(b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, an exemption was granted to the Federal Government for the acquiring of evacuee land and hence the acquisition of part of the disputed land by the Federal Government was in accordance with the law and hence the acquisition proceedings were validly initiated---Possession of part of disputed property was taken over by the Federal Government in terms of S. 16 of the Land Acquisition Act, 1894, and once the land so acquired vested absolutely in the Federal Government, it was competent to transfer the same to the concerned Development Authority as there was no prohibition in the Land Acquisition Act, 1894 in such regard---Amount of compensation to be awarded had been calculated according to the Award made by the Deputy Commissioner and payment made by the concerned Development Authority in such regard---With respect to the remaining portion of the disputed property the Evacuee Trust Property Board under S. 4(d) of the Pakistan Administration of Evacuee Property Act, 1957, was authorized to sell or transfer the evacuee trust property provided that prior approval of the Federal Government was obtained in such regard---Remaining portion of disputed land fell within the boundaries of housing scheme, as such its possession was taken over by the concerned Development Authority after full payment to the Evacuee Trust Property Board---Regarding the contention of appellants that the disputed land was transferred to them by 'haaris', who had leasehold rights for the same, suffice to say that bulk of the members of the Managing Committee of the Association had left the country after independence and the remaining members were insufficient in number to complete the quorum, and further the annual general meetings of the Association could not be held over a long period of time, as such the Association had become defunct and ceased to function---In such a situation, it was not conceivable that the occupation of the land of the Association by the 'haaris', even if it was on lease obtained from the then Management Committee, when it was functional, could by any stretch of imagination be considered to be valid when the said Committee had become defunct---Disputed land had been validly transferred to the concerned Development Authority, hence, the claim of the appellants could not succeed---Appeal was dismissed accordingly.

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

----S. 4--- Land acquisition by the Federal Government---"Public purpose"---Scope---Acquisition of land for a housing society was recognized as a "public purpose".

Pakistan v. Muhammad Ali PLD 1960 SC 60 and Muhammad Ishaq v. Government of Punjab 2002 SCMR 1652 ref.

Khalid Anwar, Senior Advocate Supreme Court, M. Afzal Siddique, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record assisted by Yousaf Nasim, Advocate, Hamid Ahmed, Advocate and Raja Ikramullah, Advocate for Appellants (in C.As. Nos. 2215 to 2218 of 2006).

A.I. Chundrigar, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record and Shehzad Sarwar, Manager Litigation, HBL for Appellants (in C.As. Nos. 2215 to 2218 of 2006).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record assisted by Sheikh Rizwan Nawaz, Advocate for Appellants (in C.As. Nos. 2219 to 2222 of 2006).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Syed Feisal Hussain Naqvi, Advocate Supreme Court assisted by Ms. Zonaira Fayyaz, Advocate for Appellants (in Cr. O.P. No. 31 of 2008).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court, Syed Feisal Hussain Naqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (for Private Respondents i.e. Members of WCHS).

I.H. Zaidi, Advocate Supreme Court for WCHS.

Syed Jamil Ahmed, Advocate Supreme Court for KDA.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for ETPB.

Imran-ul-Haq Khan, Special Prosecutor NAB for NAB.

Shehryar Qazi, Additional A.-G. for the Government of Sindh.

Aamir Rehman, Additional A.G.P. for Federal Government.

Ex parte for other Respondents in CAs.

2018 S C M R 727

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab and Sajjad Ali Shah, JJ

ARMY WELFARE SUGAR MILLS and others---Appellants

Versus

GOVERNMENT OF SINDH through Secretary Agricultural and others---Respondents

Civil Appeals Nos. 334 to 344 of 2004, decided on 5th March, 2018.

(On appeal against the Judgment dated 27.03.2003 passed by the High Court of Sindh, Karachi in Constitution Petitions Nos. D-1364 to D-1369/1998, D-1385 to D-1389/1998, D-1421/1998, D-1266 and D-1267/1999)

Sugar Factories Control Act (XXII of 1950)---

----S. 16(v) [as inserted by the Province of Sindh]---Sucrose content---Payment of 'quality premium' to sugarcane growers---Vires of---Quantity of sugar produced from sugarcane depended upon its sucrose content, therefore, a base sucrose recovery level in the climatic conditions of the Province in question was determined to be 8.7% which was the main component of the sugarcane price fixation formula---Joint efforts and labour of the sugarcane growers and the sugar mill contributed towards achieving a sucrose recovery level which at times reached well beyond the base recovery level of 8.7%---In addition to the minimum procurement price fixed under Clauses (i) & (ii) of S. 16 of the Sugar Factories Control Act, 1950, growers were paid an additional price described as 'quality premium' at a certain rate per maund for each 0.1% of excess recovery of sucrose achieved by a sugar mill over and above the base recovery level of 8.7%---Payment of such 'quality premium' was given statutory footing by inserting clause (v) to S. 16 of the Sugar Factories Control Act, 1950---Plea of appellant-sugar mills that every notification for payment of quality premium issued in terms of clause (v) of S. 16 of the Act took the base recovery level to be 8.7% which should not remain constant; held, that the reason to fix the base recovery level at 8.7% for the purposes of determining the rate of quality premium was that 8.7% was also taken as base level for fixing the sugarcane procurement price under the sugarcane price fixation formula---Obviously then the quality premium became payable for each 0.1% of excess recovery of sucrose achieved by a sugar mill over and above the base recovery level of 8.7%---Said base level therefore had to remain the same as a constant factor and became the starting point in the determination of the excess decimal points and this was exactly the mandate of the law itself---Payment of quality premium on sucrose recovery level which was over and above the base level of 8.7% was not something which could be said to be some kind of benevolence or was bereft of any consideration---Right to pay quality premium created under clause (v) of S. 16 of the Act was based upon intelligible criteria and, therefore, could not be regarded as confiscatory so as to question its vires---Grant of quality premium being just and fair and based on statutory provision was legally enforceable---Only situation when an increase in the rate of 'quality premium' could conceivably be called in question was when it could be demonstrated that revision in the rate of quality premium did not commensurate with the revision in the minimum procurement price of sugarcane---Only in such situation a case of erratic increase without any discernible link to the sugarcane procurement price could be made out---In the present case, as the revision of rate of quality premium was only 1.38% of the sugarcane price for each decimal point increase, there appeared to be no logical reason in denying the sugarcane growers their due share in facilitating the mills in achieving higher than the base sucrose recovery level which invariably resulted in higher sugar production---Supreme Court directed that in future notification as per past practice for payment of 'quality premium' should be issued along with the notification of fixation of the minimum procurement price of sugarcane and the same shall be paid to the growers not later than two months after the crushing season comes to an end---Appeals were dismissed accordingly.

Khalid Anwar, Senior Advocate Supreme Court for Appellants (in C.As. Nos. 334-338/2004 and 344/2004).

Nemo for Appellants (in C.As. Nos. 339-342/2004).

Muhammad Shaiq Usmani, Senior Advocate Supreme Court for Appellants (in C.A. No.343/2004).

N.C. Motiani, Advocate-on-Record for Applicant (in C.M.A. No. 1304/2004).

Zamir Hussain Ghumro, A.G., Sindh, Aslam Butt, DAG, Agha Zaheer-ud-Din, Cane Commissioner, Sindh, Abdul Aziz Channa, Deputy Secretary Agriculture Department, Sindh for Respondents.

2018 S C M R 733

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sajjad Ali Shah, JJ

STATE through Prosecutor-General, Punjab---Appellant

Versus

JAHANGIR AKHTAR and others---Respondents

Criminal Appeals Nos. 430 to 432, 442, 446, 447 and 495 of 2017, decided on 17th January, 2018.

(Against the orders dated 26.01.2016, 29.01.2016 and 03.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos. 523, 438, 439, 494, 520, 440 and 437 of 2015)

Constitution of Pakistan---

----Art. 13(a)--- Criminal Procedure Code (V of 1898), S. 403---Simultaneous disciplinary and criminal proceedings---Permissibility---Employment in police obtained on basis of fake and forged documents---As a disciplinary measure the respondents (police officials) were compulsorily retired from service but criminal proceedings against them were stopped on the basis that in view of their compulsory retirement it would amount to double jeopardy; held, that disciplinary action taken by a department and criminal prosecution were quite distinct from each other and could proceed simultaneously or one after the other and such separate actions did not attract the principle of double jeopardy---Disciplinary proceedings were meant solely for maintaining and ensuring purity of service whereas criminal prosecution was meant to punish a person for the offence committed by him---Supreme Court restored status of respondents as accused persons in the relevant criminal cases and the Trial Court was directed to proceed with their trials in accordance with law.

[Case-law referred]

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for Appellant (in all cases).

Tanvir Iqbal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in all cases).

2018 S C M R 736

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SUO MOTU ACTION REGARDING NON-PAYMENT OF RETIREMENT BENEFITS BY THE RELEVANT DEPARTMENTS AND OTHERS: In the matter of

Suo Motu Case No. 20 of 2016 and Human Rights Cases No.7094-P, 26591-P, 15518-P/2015, 25917-S and 26252-S/2016 and 3910-K, 3911-S, 3912-P, 3913-G and 3914-P/2018 and Constitutional Petitions No.45/2016 and C.M. Appeal No.203/2016 in Constitutional Petition No. NIL/2016 and Civil Misc. Applications Nos.7394 and 7484/2016 and 141, 288, 3772, 3374, 892, 1496, 2076, 2655, 2656, 3797, 3912, 3913, 4252, 4253, 4254, 4291, 8234, 9172, 9312, 9313 and 9314/2017 and 57, 45, 301, 381, 454, 577, 511, 592, 593, 652, 653, 654, 727, 728, 735, 777, 778, 779, 813, 780 and 883/2018, decided on 13th February, 2018.

Civil service---

----Master and Servant---Minimum pensionary benefits---Retired employees of privatized Banks---Suo motu case concerning minimum pension paid to the retired employees of privatized Banks---Subjecting a pensioner to a life of penury and impoverishment, was a clear violation of his Fundamental Rights to life and dignity as enshrined in Arts. 9 & 14 of the Constitution respectively---Pension given to pensioners must be of a level which allowed them to keep body and soul together---Supreme Court directed that with immediate effect the minimum pension paid to any pensioner (including their widows, where applicable) of the concerned privatized Banks (UBL, HBL and ABL) would be Rs. 8,000 per month; that such payments would be prospective, i.e, from the date of present judgment; that there would be an annual increase of 5% in the said pension, effective on the 1st of January every year; that the said pension would be paid to all three categories of pensioners, i.e. the "original retirees", those whose pensions were linked to basic pay "frozen" in past years, and in the case of one of the Banks (UBL) to retrenched employees including those who had served the Bank for more than ten years on the date of retrenchment; that employees who were receiving pension sums in excess of Rs.8,000/- shall continue to do so, and those whose pension would fall below the minimum pension (after 5% annual increase, effective on the 1st of January) they shall be paid the minimum pension with 5% annual increase, however, those who had availed the benefit of VSS (Voluntary Separation Scheme) or Golden Handshake Scheme would not be benefited by present judgment---Suo motu case was disposed of accordingly.

Muhammad Waqar Rana, Addl. A.G.P., Rashid Hafiz, DAG, Mian Abdul Rauf, A.G. Islamabad, Shehryar Qazi, Addl. A.G. Sindh, Ayaz Swati, Addl. A.G. Balochistan, Farid Dogar, AAG, Balochistan and Zahid Yousaf Qureshi, Addl. AG Khyber Pakhtunkhwa in attendance.

Tariq Waheed, Dy. Accounts Officer for D.C. Rawalpindi.

Nasir Mehmood, LO Finance Dept. Pb., Syed Afzal Hassan, Accounts Officer AGPR, Saqib Javed Abbasi, AAO AGPR, Aziz Ahmed, Director CGA Islamabad, Sohail Ijaz, AAO, Syed Imtiaz Hussain, AAO CGA, Fayad Durrani, Accountant General, Peshawar, Abid Hussain Channa, SO M/o Finance and M. Ikram Abbasi, Law Officer, Education Department, Punjab.

M. Naseem Butt, Accounts Officer Legal for Accountant General Punjab.

Abdul Razzaq, Asstt. Accountant Officer, MAG RWP.

Rehan Akhtar, AO for AG Balochistan.

Bakhtiarullah, AO for AG Khyber Pakhtunkhwa.

Rana Amanullah, Dir. (Finance) Local Board Punjab, Rana Tariq Shaukat, Dy. Dir. Colleges, Punjab and Tariq Hameed, Dy. Secy. HE Dept. Punjab.

Shahid Anwar Bajwa, Advocate Supreme Court (for HBL and ABL).

Sikandar Bashir Mohmand, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (For UBL).

Hashmat Ali Habib, Advocate Supreme Court (in C.M.A. No.288/2017).

Farrokh Niaz, in person (in C.M.A. No. 8404/2016).

Abdul Raheem Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.As. Nos.1496/2017 and 558/2018).

Ms. Ayesha Hamid, Advocate Supreme Court and Raja Muhammad Sarfraz, in person (for retired UBL employees).

Syed Ali Zafar, Advocate Supreme Court and Mr. Zahid Nawaz Cheema, Advocate Supreme Court (for HBL).

Salman Aslam Butt, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (for UBL/Resp.4 in Const.P.45/2016)

Babar A. Khilji, Advocate Supreme Court (in C.M.A. No.883/18)

Shoaib Shaheen, Advocate Supreme Court (in C.M.A. No.3797/17)

Javed Iqbal, Advocate Supreme Court (for PPCBL).

Umer Aslam Khan, Advocate Supreme Court (in C.M.A. No.7394/2016)

Rai M. Nawaz Khan Kharal, Advocate Supreme Court (in CMA No.9172/2017)

Tariq Mehmood Khokhar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (for Allied Bank employees in C.M.As. Nos.8234, 9312-9314/2017).

Raja M. Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.892/2017)

Ahmed Awais, Advocate Supreme Court, Tipu Salman Makhdoom, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (in Constitutional Petition No.45/2016).

Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.45/2018).

Raja Muhammad Sarfraz (UBL) and Nazar Abbas (UBL) (in C.M.A. No.2656/2017).

Muhammad Naseem Qazi (UBL) (in C.M.A. No.1459/2017).

Khan Muhammad (WAPDA) (in C.M. Appeal No.203/2016).

Sultan Mahmood (in C.M.A. No.141/2017).

Shafqat Hussain (in C.M.A. No.2655/2017).

Hazoorul Islam Abbasi (HBL) and Mehboob Ahmed Soomro (HBL).

Dildar Awan, Maqsood Hussain Kazmi and M. Rafique (ZTBL).

Muhammad Farooq (in C.M.A. No.8234/2017).

Mian Muhammad Aslam (in C.M.A. No.3772/2017).

Dr. Khawar Ubaid Alvi (in H.R.C. No.25917-S/2016).

Dr. Surraya Khawar (in H.R.C. No.25917-S/2016).

Syed Imtiaz Ali (in H.R.C. No.26252/2016).

Mian Muhammad Saleem (UET).

M. Ishaque, in-person (in H.R.C. No.26252/2016)

Makhdoom Ali Khan, Senior Advocate Supreme Court Amicus Curiae.

Ms. Seema Kamil, President UBL, Aamir Karachiwala, CFO UBL, Raymond H. Kotwal, President HBL, Jamal Nasir, Head HR, Tahir Hassan Qureshi, President ABL and Atif Izhar, SVP/Head of HR Deptt. ABL on Court's Notice.

2018 S C M R 756

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Qazi Faez Isa and Ijaz ul Ahsan, JJ

MUREED SULTAN and others---Applicants/Petitioners

Versus

The STATE through P.G., Punjab and another---Respondents

Criminal Miscellaneous Application No. 1379 of 2017 in Criminal Petition No. 1256 of 2016 (under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980) and Criminal Petition No. 1256 of 2016 and Criminal M.A. 508 of 2017 and Criminal Petition No. 1616-L of 2016, decided on 20th January, 2018.

(On appeal from the judgment of the Lahore High Court, Lahore dated 25-10-2016 passed in Criminal Appeals Nos. 786 and 773 of 2013 and M.R. 189 of 2013)

Per Ejaz Afzal Khan, J; Ijaz ul Ahsan, J, agreeing; Qazi Faez Isa, J disagreeing only to the extent of effect of "an application for compromise under section 345, Cr.P.C."

Criminal Procedure Code (V of 1898)---

----S. 345(6)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Compromise with the legal heirs of deceased accepted by the court---Effect on conviction and sentence of accused---[Per Ejaz Afzal Khan, J; (Majority view): Accused persons who were convicted under S. 302(b), P.P.C. and sentenced to death filed an application before the Supreme Court seeking their release on the ground that they had compromised the matter with legal heirs of the deceased persons---Sessions Judge confirmed the genuineness of the compromise---In view of the compromise Supreme Court set aside the conviction and sentence of the accused persons and "acquitted" them of the charge in terms of S. 345(6), Cr.P.C.]---[Per Qazi Faez Isa, J (Minority view): Offences prescribed in terms of S. 345, Cr.P.C. could be compounded, but the composition of such offences had to be in terms of subsection (6) of S.345 which stipulated that it "shall have the effect of an acquittal" and not that it would be an acquittal or that an acquittal ensued---"Effect of an acquittal" was different from an acquittal---If the legal heirs of the deceased compounded the offence it did not mean that the person who was convicted for murder was not guilty of it---Only the punishment (sentence) part of the judgment was brought to an end; neither subsection (6) of S. 345, Cr.P.C. stated, nor it could (mean), that the convict was "acquitted of the charge"---Verdict of guilt (the conviction part of the judgment) that the Trial Court had recorded could only have been undone by the High Court, failing which by the Supreme Court; it could not be undone by the legal heirs of the murdered persons---Convicted murderers could only be acquitted by a court of competent jurisdiction and after application of mind by judges---Acquittal could not be secured, or granted for that matter, whilst accepting an application under S. 345 of the Code].

Holy Quran Surah Al-Baqarah (2) verses 178-9; Holy Quran Surah Al-Maidah (5) verse 45; Holy Quran Surah Al-Isra (17) verse 33 and Holy Quran Surah Ash-Shura (42) verse 40 ref.

Shahid Azeem, Advocate Supreme Court for Petitioners (in C.M.As. Nos. 1379/17, 506/17 and Crl. P. 1256/16).

Nemo for Petitioners (in Crl. P. 1616-L of 2016).

Rana Abdul Majeed, Additional A.-G. Punjab for the State.

2018 S C M R 762

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Mazhar Alam Khan Miankhel, JJ

ZOHRA BIBI and another---Appellants

Versus

Haji SULTAN MAHMOOD and others---Respondents

Civil Appeal No. 288 of 2013, decided on 6th December, 2017.

(On appeal from the judgment dated 28.12.2012 passed by the High Court of Balochistan in C.M.A. No. 01/2011)

(a) Succession Act (XXXIX of 1925)---

----S. 383---Penal Code (XLV of 1860), S. 198---Succession certificate, revocation of---Succession certificate obtained fraudulently---After the demise of propositus of the parties, his son, respondent was successful in getting a succession certificate in his name by claiming himself to be the sole legal heir of the deceased propositus---Subsequently after culmination of the proceedings in his favour, respondent also submitted an undertaking in the court for submission of details of accounts and also held himself liable/responsible to satisfy the claim of any other legal heir of the deceased if any, in case someone came forward---On getting knowledge of the said fraudulent act of respondent 'propositus' daughters/appellants moved an application under S. 383 of the Succession Act, 1925 for revocation of succession certificate, which was allowed by the Trial Court---High Court set aside the order of revocation of succession certificate; held, that when status and relationship of the parties with the propositus was not denied then every legal heir was entitled to get/receive his/her Shari share to the extent of his/her entitlement in the property moveable/ immovable left by the propositus---Respondent alleged that every legal heir was paid his/her due share, thus, it was for the respondent to have proved his stance of payment of respective shares to all the legal heirs but he had miserably failed to do so---Record established that the original succession certificate was obtained by respondent by practicing fraud with the Court and the appellants---Appellants being poor illiterate ladies had no knowledge of the original succession certificate and after getting knowledge of the same filed application for revocation of the same---Trial Court had rightly revoked the succession certificate issued in favour of the respondent---Respondent had verified a false statement, rather concealed the true facts before the Court regarding actual legal heirs of the deceased propositus and thus apparently had committed fraud with the Court and the parties, therefore, Supreme Court directed the Trial Court to proceed against the respondent under S. 198, P.P.C. as required by S. 372(2) of the Succession Act, 1925---Appeal was allowed accordingly with costs to be borne by the respondent for the entire litigation.

(b) Succession Act (XXXIX of 1925)---

----S. 372---Succession certificate---Scope---Inheritance of a person opened the moment he died and all the legal heirs became owners to the extent of their respective shares there and then---Sanction of inheritance mutation, issuance of succession certificate etc. were procedural matters regulated by the procedural laws just to make the records in order and also for fiscal purposes.

(c) Administration of justice---

----Technicalities---Technicalities should not hamper the administration and dispensation of justice---Whenever it was possible to grant relief under the law, then technicalities in the way of administration of justice should be avoided to the (maximum) possible extent by remaining within the domain of law.

(d) Succession Act (XXXIX of 1925)---

----Ss. 372 & 383---Succession certificate, grant/revocation of---Limitation period---No statutory period of limitation was provided for grant of any succession certificate under S. 372 or its revocation under S. 383 of the Succession Act, 1925, but even then it had to be availed within a reasonable time.

(e) Succession Act (XXXIX of 1925)---

----S. 372---Inheritance---Succession certificate, issuance of---Scope---Not necessary for each and every legal heir to be properly represented and appear before the Court to get a succession certificate---Court on receiving such application had to issue/grant succession certificate in favour of all the legal heirs by considering and determining their respective shares by complying with the procedural requirements of law in such regard. [p. 768] H

Raja Saif ur Rehman Advocate Supreme Court and Ahmad Nawaz Ch. Advocate-on-Record (Absent) for Appellants.

Shafqat Jan, Advocate Supreme Court (for Respondent No. 1) and Tariq Aziz, Advocate Supreme Court/Advocate-on-Record (for respondents Nos. 2 - 4).

Ex parte for Respondents Nos. 5 and 6.

2018 S C M R 769

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

SHAUKAT ULLAH KHAN BANGASH---Petitioner

Versus

ADIL TIWANA and others---Respondents

Civil Review Petition No. 543 of 2015 in Civil Appeal No. 786 of 2013, decided on 8th May, 2017.

(On review against the judgment dated 16.03.2015 passed by this Court in C.A. No. 786 of 2013)

Specific Relief Act (I of 1877)---

----S. 12--- Suit for specific performance--- Sum paid in part performance of a contract by the plaintiff---Sum deposited by plaintiff in court---Payment of interest on said sums after dismissal of suit---Scope---Amount of Rs.35,00,000/- paid by the plaintiff to the defendant in part performance of contract was utilized and enjoyed by the defendant for almost two decades--- Further an amount of Rs.1,65,00,000/- remained deposited with the High Court pursuant to the judgment allowing appeal of the plaintiff---If grains of equity could be poured in one scale of justice while declining specific performance of contract to the plaintiff , they could also be poured in the other scale of justice to compensate the plaintiff whose huge sum remained with the defendant for almost two decades and five times that amount remained deposited in the High Court for more than a year pursuant to the judgment of the High Court---Plaintiff, in no case, could be denied the bare minimum which he would have been given in the form of interest, had he deposited said sum in the bank---Supreme Court directed that the plaintiff would be entitled to an amount of Rs.50,00,000/- over and above the amount which had already been returned to him---Review petition was disposed of accordingly.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court for Petitioner.

Waseem Sajjad, Senior Advocate Supreme Court for Respondents.

2018 S C M R 772

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD MANSHA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 316 of 2017, decided on 7th February, 2018.

(Against the judgment dated 2.2.2016 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 415-J of 2013)

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

----Ss. 302(b), 302(c) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Dishonest improvements in statements of witnesses---Effect---Trial Court convicted the accused under Ss. 302(b) & 34, P.P.C. and sentenced him to imprisonment for life---High Court converted the conviction from Ss. 302(b) to 302(c), P.P.C. and reduced the sentence from life imprisonment to ten years rigorous imprisonment; held, that the trial Court acquitted three co-accused persons who, according to prosecution's own case, actively participated in the occurrence---High Court also acquitted a fourth co-accused person while declaring the prosecution evidence totally doubtful on account of dishonest improvements in the statements of the eye-witnesses, but on the same piece of evidence convicted the present accused---Witnesses, in the present case, had made dishonest improvement in order to bring the case in line with the medical evidence, thus, conviction of accused was not sustainable on the testimony of said witnesses without independent corroboration which was conspicuously lacking in the present case---According to the prosecution a weapon was allegedly recovered at the instance of accused---Although the report of Forensic Science Laboratory regarding working condition of the weapon was available on the record but in the report it was mentioned that said weapon was recovered from the place of occurrence and as such the same was inconsequential---In the absence of any corroborative piece of evidence the conviction of the accused was not sustainable on the same set of evidence which, according to the High Court, was full of doubts due to dishonest improvements in the statements of the eye-witnesses---Conviction and sentence awarded by the Trial Court and upheld by the High Court was set aside and accused was acquitted of the charge leveled against him---Appeal was allowed accordingly.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Sarfraz alias Sappi v. The State 2000 SCMR 1758; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Ali v. The State 2015 SCMR 137; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Shahbaz v. The State 2016 SCMR 1763 ref.

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

----S. 302---Qatl-i-amd---Dishonest improvements in statements of witnesses---Once the court came to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it was not safe to place reliance on their statements.

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

----S. 302---Qatl-i-amd---Dishonest improvements in statement of witness in order to bring the case in line with the medical evidence or to strengthen the prosecution case---Such testimony was not worthy of credence.

Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344; Amir Zaman v. Mahboob and others 1985 SCMR 685; Akhtar Ali and others v. The State 2008 SCMR 6; Khalid Javed and another v. The State 2003 SCMR 1419; Mohammad Shame 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.

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

----S. 302---Qatl-i-amd---Medical evidence---Scope---Medical evidence neither pin pointed the accused nor established his identity, and at the most it could depict the locale of injury, duration, weapon used etc.---Medical evidence could never be considered to be a corroborative piece of evidence and at the most could be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc.

Muhammad Sharif and another v. The State 1997 SCMR 866; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Dildar Hussain v. Muhammad Afzaal alias Chala and others PLD 2004 SC 663; Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

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

----S. 302---Qatl-i-amd---Recovery of weapon---Absence of report of Forensic Science Laboratory on record---Effect---Simple recovery of weapon could not be considered as corroborative piece of evidence until it was supported by the positive report of Forensic Science Laboratory.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Zahoor Ahmad v. The State 2017 SCMR 1662 ref.

(f) Criminal trial---

----Benefit of doubt---Scope---While giving the benefit of doubt to an accused it was not necessary that there should be many circumstances creating doubt---If there was a circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right.

Aftab Ahmad Khan, Advocate Supreme Court for Appellant.

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

2018 S C M R 779

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

AIR WEAPON COMPLEX through DG---Appellant

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Appeal No. 179 of 2017, decided on 9th February, 2018.

(Against judgment dated 30.11.2016 of Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in R.F.A. No. 294 of 2012)

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

----S. 18---Land acquired for 'defence purposes'---Dispute over quantum of compensation---Referee Court enhanced the rate of compensation determined by the Collector on the basis that land in question was situated next to a main highway road and its future potential had not been considered by the Collector---Apart from enhancement in compensation, the Referee Court also allowed compulsory acquisition charges to 15% and interest @ 8% from the date of possession till payment of compensation; held, that land in question was situated next to a main highway road, therefore, there was lawful justification for the Referee Court to utilize a different standard to determine its real value---Referee Court fixed the amount of compensation which was just and fair considering the current market value of the land, its future potentialities including current, future and reasonably anticipated developments in its vicinity.

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

----S. 23---Compensation for acquired land, assessment of---Factors to be taken into consideration by the court stated.

Following are the factors that had to be taken into consideration by the court in assessing compensation of acquired land:

(i) Its market value at the prevalent time and its potential;

(ii) One year average of sale (price) of similar land before publication of notification under section 4 of the Land Acquisition Act, 1894;

(iii) Likelihood of development and improvement of the land;

(iv) What a willing purchaser would pay to a willing buyer in an open market arm's length transaction entered into without any compulsion;

(v) Loss or injury occurred by severing of acquired land from other property of the land owner;

(vi) Loss or injury by change of residence or place of business and loss of profit;

(vii) Delay in the consummation of acquisition proceedings, and;

(viii) Peculiar facts and circumstances of each case.

Imran Ahmed Malik, Advocate Supreme Court for Appellant.

Tanvir Iqbal, Advocate Supreme Court for Respondents.

2018 S C M R 784

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Faisal Arab, JJ

MUHAMMAD YOUNIS---Petitioner

Versus

FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER, PAKISTAN RAILWAYS, LAHORE and others---Respondents

Civil Petition No. 264 of 2017, decided on 13th February, 2018.

(On appeal against the judgment dated 15.12.2016 passed by the Federal Service Tribunal, Islamabad in Appeal No.3272(R)CS/2012)

Civil service---

----Pensionary benefits---Different rates of increase in pension dependent on date of retirement---Plea of discrimination---Reasonable classification---In terms of impugned Office Memorandums, those employees who retired on or before 01-12-2001 were given 20% rise in pension whereas those who retired thereafter were given only 15% rise---Petitioner contended that there should not be two different rates of increase and all pensioners should be given the same percentage of increase in pension irrespective of their dates of retirement; held, that distinction between 'old pensioners' and 'new pensioners was necessary as the quantum of pension was determined keeping in view the difference of pay in different time periods---Argument of discrimination raised by the petitioner had to be rejected as bifurcation between pensioners was considered necessary in order to maintain a uniform rise in pension due to the different rate of salaries the ex-employees were drawing at the time of their retirement---Petition for leave to appeal was dismissed accordingly.

Federation of Pakistan v. I.A. Sherwani and others 2005 SCMR 292 ref.

Petitioner in person.

Hafiz Muhammad Saeed, Advocate Supreme Court and Manzoor Malik Moor, A.O. for Respondents.

2018 S C M R 787

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sajjad Ali Shah, JJ

NAZIR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 141 of 2016, decided on 7th February, 2018.

(Against the judgment dated 12.09.2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeals Nos. 271-J and 147 of 2008 and Murder Reference No. 37 of 2008)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Benefit of doubt---Accused was convicted under Ss. 302(b) & 34, P.P.C and sentenced to death for murdering his wife---High Court maintained conviction of accused but reduced his death sentence to imprisonment for life; held, that First Information Report (FIR) in respect of the incident in question had been lodged after about three hours and forty minutes and, thus, a possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration---Eye-witnesses produced by the prosecution were very closely related to the deceased inasmuch as the complainant was a brother of the deceased whereas the other eye-witness was a brother-in-law of the complainant---Both the said eyewitnesses were also chance witnesses and they had claimed to have been attracted to the place of occurrence upon hue and cry of the deceased---Site plan of the place showed that there was no house or shop of any person situated anywhere close to the house of occurrence and, thus, it was not readily believable that the eye-witnesses would be attracted to the place of occurrence upon hue and cry of the deceased---Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a long way in creating dents in the case of the prosecution---Post-mortem examination of the deadbody had been conducted after about 13 hours of the death of the deceased giving rise to an inference that time had been consumed by the complainant party and the local police in cooking up a story for the prosecution and in procuring and planting eye-witnesses---Time of death of the deceased stated by the eye-witnesses was materially different from that discernable from the medical evidence---Co-accused attributed an active role during the incident in issue, had been acquitted by the High Court which established that the eye-witnesses produced by the prosecution were capable of falsehood---Further the High Court had categorically concluded that no independent proof of the alleged motive had been adduced by the prosecution---Moreover a son of the deceased and also of the accused had appeared before the Trial Court and he had categorically stated that it was the complainant who had murdered his mother and that the said murder had not been committed by his accused-father---Son of the deceased and accused was a natural witness being a resident of the house wherein the occurrence had taken place and the time of occurrence was such that the son was likely to be present inside the house at the relevant time---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was therefore, allowed, and the conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

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

----S. 302(b)---Qatl-i-amd---Accused-husband alleged to have killed his wife in their matrimonial home---Burden of proof---Scope---In such a case some part of the onus shifted to the accused to explain the circumstances in which his wife had died an unnatural death in their house, however, shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself was not reliable and where the prosecution failed to produce any believable evidence---Initial onus of proof always laid upon the prosecution and if the prosecution failed to adduce reliable evidence in support of its own case then the accused person could not be convicted merely on the basis of lack of discharge of some part of the onus on him.

Saeed Ahmed v. The State 2015 SCMR 710; Arshad Mehmood v. The State 2005 SCMR 1524; Nasrullah alias Nasro v. The State 2017 SCMR 724 and Asad Khan v. The State PLD 2017 SC 681 ref.

Anis Muhammad Shahzad, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

2018 S C M R 791

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

AYESHA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Criminal Petition No. 100 of 2017, decided on 15th March, 2018.

(On appeal against the judgment dated 19.01.2017 passed by the Lahore High Court, Lahore in Criminal Revision No. 71 of 2017)

Criminal Procedure Code (V of 1898)---

----Ss. 250 & 265-K---Penal Code (XLV of 1860), Ss. 499 & 500---Defamation and malicious prosecution---Scope---Action for defamation on account of initiating criminal proceedings---Immunity, rule of---Scope and purpose---Petitioner initiated two criminal cases against the respondent with the allegation that he violated her modesty, assaulted her and tried to snatch her gold ornaments---Respondent filed a private complaint against the petitioner under S. 500, P.P.C. seeking the petitioner's conviction for defaming him on account of initiation of said two cases; held, that S. 499, P.P.C. allowed a person to bring a separate case against a person who intentionally made a defamatory statement to harm ones reputation, however, where a person was sued for defamation on account of giving a statement to the police on the basis of which a criminal investigation commenced or was given during the course of a criminal investigation, the claim for defamation would certainly undermine the rule of immunity which was devised as a public policy consideration for proper administration of justice and thus the claim of defamation had to be struck down as being abuse of the process of the court---Rule of immunity was attracted irrespective of the fact whether criminal action succeeded or not---However, at the end of the trial if the acquitted person demonstrated that the criminal action was tainted with malice i.e. the law was set in motion maliciously without a reasonable cause i.e. whatever the complainant had stated in the criminal proceedings was based on fabrication of evidence or a statement was attributed to someone which was not said or written by him then he could be sued for malicious prosecution, scope of which fell within the confines of S. 250, Cr.P.C., but nothing more as said section only dealt with frivolous or vexatious accusations made in the course of proceedings and not with an allegation of defamation---Section 250, Cr.P.C. thus could only be invoked when a case had been proved to be false on evidence---Said section could not be invoked in consideration of the fact that intention to lodge the criminal case was to ruin the reputation of the acquitted person---Action for defamation on account of initiating criminal proceedings was hit by the rule of immunity which was devised for proper administration of justice whereas the action for malicious prosecution as provided in S. 250, Cr.P.C. was not so hit by the said rule of immunity.

Taylor v. Director of the Serious Fraud Office [1999] 2 AC 177; Messrs Bapala and Co. v. AR Kristmaswami Aiyer 1941 AIR (Mad) 26; Bira Gareri v. Dulhin Somaria 1962 AIR (Patna) 229; Thekkittil Gopalankutty Nair v. Melepurath Sankunni Ezhuthaseah AIR 1971 Ker 280; Westcott v. Westcott [2008] EWCA Civ 818; National Society for the Prevention of Cruelty to Children v. D (Married Woman) [1979] 2 All ER 993; Lincoln v. Daniels [1962] 1 Q.B. 237 at 257 and Taylor v. Director of the Serious Fraud Office [1992] 2 AC 177 ref.

Petitioner in person.

Respondent No. 2 in person.

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

2018 S C M R 798

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ASAD IQBAL---Appellant

Versus

PAKISTAN RANGERS SINDH and others---Respondents

Civil Appeal No. 97-K of 2016, decided on 30th November, 2017.

(Against the order dated 9.4.2015 passed by the Federal Service Tribunal in Appeal No. 98/2011)

Constitution of Pakistan---

----Art. 212(3)---Employee of Pakistan Rangers---Misappropriation/ embezzlement---Recovery of embezzled amount and award of sentence of imprisonment---Appellant was appointed as a clerk (munshi) at a petrol station owned by the Pakistan Rangers---Accused was alleged to have misappropriated money from the petrol station, whereafter he was charge sheeted and ultimately awarded 89 days rigorous imprisonment along with a direction to deposit his share of the misappropriated money; held, that the appellant was provided full opportunity to defend himself---Deposit of portion of the embezzled amount made by the appellant appeared to be voluntary---Even otherwise, the charge of misappropriation/embezzlement, being a question of fact, had been scrutinized and proved before the three forums (below) concurrently and appeared to be in consonance with the record---Regarding a "No Demand Certificate" issued to the appellant after serving out his punishment, bare perusal of such certificate revealed that it was a "No Demand" by various branches of Rangers including officers mess, canteen, washer man, barber, tailor etc. a pre-requisite of transfer of every soldier from one unit to another and not a "No Demand Certificate" in respect of mis-appropriation as claimed by the appellant---No question of law of public importance had been pointed out by the appellant calling for interference by the Supreme Court while exercising powers under Art. 212(3) of the Constitution---Appeal was dismissed accordingly.

Salim Salam Ansari, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Sanaullah Noor Ghori, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record and Zafar Mehmood, Law Officer Pak. Rangers for Respondents.

2018 S C M R 802

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Mushir Alam and Sajjad Ali Shah, JJ

Messrs SUI SOUTHERN GAS COMPANY LTD. and others---Appellants/Petitiioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos.1583 to 1598 of 2014, 970 and 971 of 2013, 4, 5, 606 and 1152 of 2015 and Civil Petition No.2154-L of 2014 and Civil Misc. Application No.484-K of 2014 in Civil Appeal No.1598 of 2014.

(Against the judgments date 4-8-2014, 29-10-2010, 3-12-2014, 18-3-2015, 9-6-2015 and 17-4-2014 of the High Court of Sindh, Karachi/Islamabad High Court, Islamanbad/Peshawar High Court, Peshawar/Lahore High Court, Lahore passed in C.Ps. Nos.D-304/2012, D-3195/2010, D-1762/2012, D-658/2012, D-3530/2011, D-3196/2010, D-2948/2011, D-2947/29011, D-2701/2011, D-2269/ 2013, D-2188/2011, D-1642/2012, D-1410/2010, D-4184/2012, D-153/ 2012, D-1796/2010, D-2428/2010, W.P. No.4626/2014, 4628/2014, C.P. No.4514/2013, W.P. No.634/2015 and R.A. No.93/2012).

(a) Constitution of Pakistan---

----Art. 184(3)---Vires of statute---Legislative enactment, vires of---Judicial review---Scope---While considering the vires of a legislative enactment under its powers of judicial review, the Supreme Court could consider not only the substance of the law but also the competence of the legislature---Further no mala fide could be attributed to the legislature,however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute---Vires of a statute could also be determined on the ground that the legislation was colourable.

(b) Constitution of Pakistan---

----Art. 184(3)---Legislative enactment, constitutionality of---Judicial review---Scope---When a law was enacted by the Parliament, the presumption was that Parliament had competently enacted it (law), and if the vires of the same (law) were challenged, the burden always laid upon the person making such challenge to show that the same (law) was violative of any of the Fundamental Rights or the provisions of the Constitution ---Where two opinions with regard to the constitutionality of an enactment were possible, the one in favour of the validity of the enactment was to be adopted---Court should lean in favour of upholding the constitutionality of a legislation and it was thus incumbent upon the Court to be extremely reluctant to strike down laws as unconstitutional---Such power should be exercised only when absolutely necessary as injudicious exercise of such power might well result in grave and serious consequences.

[Case-law referred]

(c) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists, interpretation of---Principles stated.

Principles of interpretation with regard to Entries in the Legislative Lists were as follows:

(i) The entries in the Legislative Lists of the Constitution were not powers of legislation but only fields of legislative heads;

(ii) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words;

(iii) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;

(iv) Each general word in an entry should be considered to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in it;

(v) If there appeared to be an apparent overlapping in respect of the subject-matter of a legislation, an effort had to be made to reconcile the Entries to give proper and pertinent meaning to them;

(vi) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity;

(vii) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; and

(viii) After considering the legislation as a whole in pith and substance, it had to be seen that with respect to which topic orcategory of legislation in the various fields, it dealt substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.

[Case-law referred]

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

----S. 3 & Preamble---Constitution of Pakistan, Arts. 17, 97, 137, 141, 142 & Fourth Sched, Pt. I, Entries 58 & 59---Industrial Relations Act, 2012, vires of---Establishments/trade unions functioning at the Federal as well as trans-provincial level---Legislative domain of Federal and Provincial Legislature---Scope---Federal Legislature had extra-territorial authority to legislate,but no such extra-territorial authority had been invested with the Provincial Legislature---Provincial Legislature, therefore, had no legislative competence to legislate laws regulating the trade unions functioning at trans-provincial level---Constitution itself had provided a mechanism in form of Entries No.58 and 59 of Part I of the Federal Legislative List, whereby the Federal Legislature had been mandated to legislate in order to preserve and regulate a right, which in its exercise transcends provincial boundaries, especially one guaranteed under Art.17 of the Constitution---When a provincial legislature was not competent to legislate with regard to the workmen of trans-provincial establishments, obviously the Federation had to interfere in the matter with a Federal legislation (such as the Industrial Relations Act, 2012) to preserve and protect the Fundamental Rights of the said workmen ensured under Art.17 of the Constitution---Parliament in its wisdom had intentionally left it for a Province to make legislation concerning the establishments/trade unions functioning only within the limits of that Province, without transgressing the territorial limits of the said Province---Neither did the Industrial Relations Act, 2012 in any manner,defeat the object of the Eighteenth Amendment (to the Constitution) nor did it destroy or usurp the provincial autonomy or the principle on which the Federation was formed under the Constitution; rather it facilitated to regulate the right to form unions at trans-provincial level, which could not be attained through a provincial law --- Supreme Court declared that the Industrial Relations Act, 2012 had been validly enacted by the Parliament and was intra vires the Constitution; that workers of the establishments/industries functioning in the Islamabad Capital Territory or carrying on business in more than one provinces shall be governed by the Federal legislation i.e. Industrial Relations Act, 2012; whereas, the workers of establishments/industries functioning or carrying on business only within the territorial limits of a province shall be governed by the concerned provincial legislations.

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

----S. 3 & Preamble---Constitution of Pakistan, Fourth Sched, Pt. I, Entries Nos. 3 & 32 & Fourth Sched, Pt. II, Entries Nos.13 & 18---Industrial Relations Act, 2012, vires of---Establishments/trade unions functioning at the Federal as well as trans-provincial level---Question as to whether the Federal Legislature was competent to enact the Industrial Relations Act, 2012; held, that entry No.32 of Part I of the Federal Legislative List, brought within the legislative competence of the Federal Legislature the matters relating to the international treaties, conventions, etc.---Matters relating to trade unions and labour disputes, etc., have been dealt with and protected under the International Labour Organization's Conventions No.87 (Convention concerning Freedom of Association and Protection of the Right to Organise) and No.98 (Convention concerning the application of the Principles of the Right to Organise and to Bargain Collectively) which were covered under Entries Nos.3 and 32 of Part-I of the Federal Legislative List---Federal Legislature, thus, had legislative competence to legislate in such regard to discharge the obligations created under the International Treaties and Conventions---Entry No. 13 of Part II of the Federal Legislative List, which covered "Inter-provincial matters and co-ordination"also provided legislative authority to the Federal legislature to enact laws relating to inter-provincial matters/trade unions---Moreover Entry No. 18 of Part II of the said List enlarged the scope of Entry No. 13---Federal legislature had the competence to legislate in relation to establishments/trade unions functioning at the Federal as well as trans-provincial level---Industrial Relations Act, 2012 was, therefore, validly enacted by the Parliament.

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

----S. 35---National Industrial Relations Commission ("NIRC"), jurisdiction of---Scope---National Industrial Relations Commission (NIRC) formed under S. 35 of the Industrial Relations Act, 2012 had jurisdiction to decide the labour disputes, etc., relating to the employees/workers of companies/corporations/institutions/ establishments functioning in more than one Province.

(g) Interpretation of statutes ---

----Procedural law---Retrospective effect---Procedural law had retrospective effect unless contrary was provided expressly or impliedly.

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

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

----Preamble---Industrial Relations Act (IV of 2008), Preamble---Industrial Relations Act, 2012---Date of applicability---Industrial Relations Act, 2012, being a procedural law, would be applicable retrospectively w.e.f. 01-05-2010, when the Industrial Relations Act, 2008 ceased to exist.

Khalid Anwar, Senior Advocate Supreme Court, Nisar A. Mujahid, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos.970 and 971 of 2013)

Asim Iqbal, Advocate Supreme Court for Appellants (in C.A. No.1583 of 2014).

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Appellants (in C.As. Nos.1584, 1585, 1589, 1590, 1591, 1593, 1596, 1597 and 1598 of 2014).

Nemo for Appellants (in C.As. Nos. 1586, 1587, 1588, 1592, 1594 and 1595 of 2014).

Tariq Masood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.4 and 5 of 2015).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No.606 of 2015).

Mehmood Abdul Ghani, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Appellants (in C.A. No.1152 of 2015).

Khalid Ismail, Senior Advocate Supreme Court for Appellants (in C.P. No.2154-L of 2014).

M. Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents (in C.As. Nos.1583, 1585, 1586, 1590 to 1595 of 2014).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents (in C.A. Nos. 1584 and 1587 of 2014).

Khalid Ismail, Advocate Supreme Court for Respondents (in C.As. Nos. 4 and 5 of 2015, 970, 971 of 2013).

Nemo for Respondents (in C.A. No.970 of 2013).

Amir Javed, Advocate Supreme Court for Respondents (in C.A. No.1152 of 2015).

Salman Riaz Ch., Advocate Supreme Court for Respondents (in C.P. No.2154-L of 2014).

Muhammad Waqar Rana, Addl. A.G.P., Shehryar Qazi, Addl. A.G. Sindh, Ms. Asma Hamid, Addl. A.G. Punjab, Barriater Qasim Wadood, Addl. A.G.KPK, Ayaz Swati, Addl. A.G. Balochistan, M. Bilal Nadeem, Dy. Registrar, NIRC, Syed Farrukh Manayun, Joint Director Labour Department, Sindh, Raja Maqsood, LO Labour Deptt. Punjab and Mazhar Hussain, SO (Coordination) Ibd (on Court's Notice).

Saleem Khan, Advocate Supreme Court, Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Intervener.

2018 S C M R 894

[Supreme Court of Pakistan]

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

PAKISTAN STATE OIL LTD.---Appellant

Versus

COMMISSIONER OF INCOME TAX, KARACHI---Respondent

Civil Appeals Nos. 859 and 860 of 2007, decided on 3rd January, 2018.

(Against the judgment dated 17.11.2006 of the High Court of Sindh, Karachi, passed in ITAs Nos. 60 and 61 of 1999)

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

----S. 80C--- Presumptive tax/deemed income tax--- Oil products imported by the Federal Government through Pakistan State Oil ("PSO") as its Handling Agent---Commission on handling charges was paid to PSO for the assessment year in question and income tax was duly paid on the said amount by PSO---Assessing officer dealing with the case took a different view of the matter, and focused on the fact that all the documents in the case pertaining to the purchase and import of the cargo were in the name of PSO; that the Letters of Credit were opened by PSO in its own name and the oil was also cleared by it, and that Bills of Entry were also prepared in the name of PSO---Assessing officer concluded that PSO was the actual importer of the oil products hence it was liable to pay deemed income tax in terms of S. 80C of the Income Tax Ordinance, 1979; held, that oil was admittedly purchased by the Federal Government and it was also imported by the Government---Contract for the purchase of the oil was entered into directly by the Federal Government with the foreign seller---One of the clauses of the contract for import of oil products clearly provided that the title in the oil products would pass to the Federal Government on the happening of either one of two events, whichever was earlier; first, was upon receipt and acceptance by the Federal Government of the documentation of title and the second was "just prior to entry of the vessel into the territorial waters of Pakistan."---Since title passed to the Federal Government prior to the entry of the vessel into the territorial waters of Pakistan it necessarily followed that the import was made by the Federal Government---Pakistan State Oil ("PSO") had no role to play at such stage---Fact that the Bills of Entry and other import documents were subsequently executed by PSO was not really relevant---Furthermore on a commission (income) of Rs.45,643,000 the tax demand created on PSO under S. 80C of the Income Tax Act, 1979 was Rs.469,806,560, which was about ten times more than the actual income---Tax could be levied up to, or below, the total income, but if the levy, exceeded 100 percent of the income it prima facie amounted to a confiscation of the property of the assesse since he had to meet it from his other unrelated assets, if any---While some allowance could be made to deal with cases of tax evasion (and the present was obviously not such a case), it was on the face of it, unjustifiable to create a tax demand which was ten times more than the total income received as had been done in the present case---No tax was payable by PSO under S. 80C of the Income Tax Ordinance, 1979---Appeal was allowed accordingly.

Khalid Anwar, Senior Advocate Supreme Court for Appellant (in both cases).

Mrs. Misbah Gulnar Sharif, Advocate Supreme Court for Respondent (in both cases).

2018 S C M R 903

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

COMMANDANT, FRONTIER CONSTABILARY, KHYBER PAKHTUNKHWA, PESHAWAR and others---Petitioners

Versus

GUL RAQIB KHAN and others---Respondents

Civil Appeals Nos. 521 of 2015, 2387, 2388, 2552-2553 of 2016, Civil Petitions Nos. 3875 of 2016, 2418, 2879, 2937-2940 and 4287 of 2017, decided on 29th January, 2018.

(On appeal from the judgment/order of Peshawar High Court, Peshawar dated 28.05.2001 passed in W.P. No.597-P/2013 and judgment dated 02.12.2015 passed in W.Ps. No. 2256-P/2013, 604-P/2014 and judgment dated 09.06.2015 passed in W.Ps. 1736-P and 3016-P of 2013 and judgment dated 01.11.2016 passed in W.P.2808 of 2010 and judgment dated 11.05.2017 passed in W.P.1512 of 2016 and judgment dated 13.06.2017 passed in W.P. 1666 of 2014 and judgment dated 21.03.2017 passed in W.Ps. Nos.1477-P, 1611-P/2016, 118-P/2017 and judgment dated 28.09.2017 passed in W.P. 1746-P of 2016)

(a) Frontier Constabulary Act (XIII of 1915)---

----Ss. 3 & 3A---Frontier Constabulary Rules, 1958, Chap. II---Constitution of Pakistan, Arts. 240(a) & 260---Employees of Frontier Constabulary ("FC"), status of---Civil servants---Test for determining whether an employee was a civil servant---Matter of terms and conditions of service of the employees of the Frontier Constabulary, were in the first place regulated by the Frontier Constabulary Act, 1915, and elaborated pursuant thereto by the Frontier Constabulary Rules, 1958---Test laid down in Art. 240(a) of the Constitution for determining whether an employee was a civil servant required that the appointment to and the terms and conditions of service of posts in connection with the affairs of the Federation and of a service of Pakistan shall be determined "by or under an Act of" Parliament---Expression "by or under" in Art. 240(a) of the Constitution authorized the terms and conditions of service of a civil servant to be provided both by statute or by statutory rules---Provision made in the Frontier Constabulary Act, 1915, and the Frontier Constabulary Rules, 1958, therefore, satisfied the Art. 240(a) test---Second crucial test for determining whether a person qualified as a member of a service of Pakistan and therefore as a civil servant, was that the civil post he held must bear connection with the affairs of the Federation, including any such post connected with the Defence---Under S. 3 and S. 3A of the Frontier Constabulary Act, 1915, the employees of Frontier Constabulary, inter alia, performed functions for the better protection and administration of the frontiers of Pakistan---Performance of such duties and functions was clearly in connection with the affairs of the Federation of Pakistan because these were rendered to protect the solidarity, integrity and law and order in Pakistan---Employees of Frontier Constabulary were, thus, civil servants.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 and Federation of Pakistan v. Muhammad Nazir 1998 SCMR 1081 ref.

(b) Frontier Constabulary Act (XIII of 1915)---

----S. 3---Constitution of Pakistan, Arts. 212---Employees of Frontier Constabulary ("FC")---Matter relating to terms and conditions of service of employees of Frontier Constabulary---Such employees were civil servants, therefore, an appeal before the Federal Service Tribunal was available to them as exclusive remedy under the law.

Mian Shafaqat Jan, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants/Petitioners (in C.A.521/2015).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/ Petitioners (in all other cases).

Naveed Ahmed, Asstt. Dir. FC.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for the Respondents (in C.A. 521 of 2015).

Shaukat Ali Yousafzai, Advocate Supreme Court for Respondents (in C.As. 2387-2388/2016).

M. Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.As. 2552-2553/2016).

Respondent No. 22 in person (in C. A. 3875 of 2016).

C. P. 2418/2017 Not represented.

Muhammad Asif, Advocate Supreme Court for Respondents (in C.A. 2879 of 2017).

Dil Muhammad Khan Alizai, Advocate Supreme Court for Respondents (in C.Ps. 2937 and 2939 of 2017).

Nemo for Respondents (in C.Ps. 2938 and 2940 of 2017).

C.P. 4287 of 2017 Not represented.

2018 S C M R 911

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Syed Mansoor Ali Shah, JJ

Mst. NAZIA ANWAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 206 of 2016, decided on 13th February, 2018.

(Against the judgment dated 22.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.372 of 2011 and Murder Reference No. 69 of 2011)

Per Asif Saeed Khan Khosa, J; Syed Mansoor Ali Shah, J agreeing; Dost Muhammad Khan, J dissenting.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused-lady was alleged to have inflicted dagger injuries to the deceased and the complainant---Trial Court convicted the accused under S. 302(b), P.P.C. and sentenced her to death---High Court upheld the conviction and sentence recorded by the Trial Court; [Per Asif Saeed Khan Khosa, J (Majority view): Occurrence had taken place in broad daylight and inside the house of complainant---First Information Report in respect of the alleged occurrence had been lodged with reasonable promptitude wherein the accused was named as the sole perpetrator of the alleged murder---Complainant was a natural witness of the occurrence being an inmate of the house wherein the occurrence had taken place and the time of occurrence was such that the complainant was likely to be present in her house at that time---Complainant had absolutely no reason to falsely implicate the accused in the murder of the complainant's daughter who was also a friend of the accused---Record of the case showed, and it was so recorded in the FIR itself, that the accused had been apprehended at the spot inside the relevant house and was later on handed over to the local police---Blood-stained dagger had also been recovered from the place of occurrence---Medical evidence had provided full support to the ocular account furnished by the complainant---Prosecution had proved beyond reasonable doubt that accused was responsible for the murder of the deceased--- Appeal against conviction was dismissed accordingly]---[Per Dost Muhammad Khan, J (Minority view): First Information Report was lodged after more than two hours for which no plausible explanation was offered---Complainant waited for the arrival of the police and did not take any step to shift the dead body---Prosecution did not answer the question as to who informed the police about the crime and place of crime---Admittedly deceased and the accused were friends since long---No logic was offered as to for why the accused brought a four months' suckling baby with her when she allegedly had a clear intention to commit murder and the baby was placed within the reach of the complainant, putting his life at grave risk---Deceased was married but she frequently deserted her husband's house and stayed away with the mother (complainant) for no reason---Access of outsiders in the complainant's house raised the possibility of objectionable activities taking place in the complainant's house---Probability could not be ruled out that the husband of the deceased or some close blood relative after getting knowledge of such objectionable activities got annoyed and out of family honour acted so ruthlessly and caused multiple stab wounds to the deceased also slitting her throat, which under no circumstances could be the job of a young and fragile lady like the accused---Inescapable inference was that the accused was made a scapegoat to screen out the real culprit because of the highly objectionable family affairs of the complainant party---Furthermore the prosecution could not explain as to why the accused stayed for more than two hours in the crime house with blood-stained knife and her suckling baby after committing a heinous crime and fell into the hands of the police after its much delayed arrival---From the facts of the case it appeared that the accused was either arrested from her own house or being a fast and close friend of the deceased when she rushed to the crime house with the suckling baby and was present there, then with deliberate intention or otherwise suspicion she was randomly implicated for the murder---Sentence of death awarded to the accused was set aside in circumstances and she was acquitted of the charge of murder].

Per Asif Saeed Khan Khosa, J [Majority view]

(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---Motive not proved---Motive set up by the prosecution had remained far from being established---According to the FIR as well as the statement of the complainant the motive was based upon borrowing of a sum by the accused from the deceased and on the issue of repayment of that loan a heated exchange had taken place between the accused and the deceased---Complainant was the only witness produced by the prosecution regarding the alleged motive but in her deposition made before the Trial Court the complainant had admitted that the accused and the deceased were on very good and friendly terms---No date or time of borrowing of the relevant amount by the accused from the deceased had been specified by the complainant---Furthermore complainant was not present when the money had been borrowed by the accused---No date, time or place of the altercation between the accused and the deceased over repayment of the borrowed amount had been specified by the complainant and admittedly the complainant was not present when the said altercation had taken place---Moreover it was not explained as to why the accused had brought her four months old child to the spot and put the child on the floor and then started inflicting dagger blows on the deceased---Real cause of occurrence remained shrouded in mystery and was completely suppressed by both the parties to the case---Such circumstances required caution in the matter of the accused's sentence of death---Sentence of death awarded to the accused was reduced to imprisonment for life---Appeal was disposed of accordingly.

(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---Motive not proved---Where the prosecution asserted a motive but failed to prove the same then such failure on part of the prosecution may react against 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 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; 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.

Per Dost Muhammad Khan, J

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

----S. 302(b)---Qatl-i-amd---Acquittal---Scope---Benefit of doubt---Case of the prosecution open to multiple theories and possibilities---In such a situation benefit of doubt had to be extended to an accused to acquit him/her of capital charge, instead of reducing the sentence---Once doubts about the genuineness of the prosecution story lurked into the mind of a judge, the only permissible course would be to acquit the accused and not go for the alternative sentence of life imprisonment.

Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Zaman v. The State and others 2014 SCMR 749 and Hashim Qasim v. The State 2017 SCMR 986 ref.

Raja Ikram Ameen Minhas, Advocate Supreme Court, Mrs. Rubina Mahmood Khan, Advocate Supreme Court, S.A. Mehmood Khan Saddozai, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

2018 S C M R 939

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

PAKISTAN through Chairman FBR and others---Appellants

Versus

HAZRAT HUSSAIN and others---Respondents

Civil Appeals Nos. 633 to 637 of 2007, 130 to 145 of 2009, 68-70 of 2011, 1229 of 2013, 158 to 160, 983 to 999, 1025-1026 of 2015, 1337, 1353-1356 of 2016, 172-174 of 2017 and Civil Petitions Nos. 261-P to 265-P of 2011, 3697 and 3698 of 2016, decided on 14th December, 2017.

(On appeal from the judgments/orders dated 19.10.2006, 21.02.2002, 03.06.2002, 3-7-2002, 17-7-2003, 25.11.2004, 3-2-2005, 23-12-2005, 28-4-2006, 25-2-2003, 9-10-2003, 3-9-2003, 10-3-2004, 18-12-2009, 30.5.2013, 04.02.2016, 30.04.2015, 14.05.2015, 27.05.2015, 28.01.2016, 14.01.2016, 20.07.2016, 24.02.2011, 13.10.2016 of the Peshawar High Court, Peshawar passed in W.Ps. Nos.1669/2004, 53/2006, 154, 1846, 2023/2005, 988/2001, 226/2002, 594/2003, W.P.1443/2003, 1826, 453, 453/2004, 589/2005, 657/2002, 662/2002, 1148/2002, 118/2003, 872/2003, 796/2003, 1008/2003, 1824/2004, 1134/2004, 1191/2004, 1246/2004, 1506/2001, 157 and 158/2005, 854-P/2006, 1830-P /2014, 192-P,195-P, 194-P, 221-P/2015, 916-P to 917-P, 919-P, 920-P/2013, 1644-P/2014, 190-P/2015, 2195-P, 2196-P/2012, 1831-P/2014, 191-P/2015, 193-P, 222-P/2015, 3643-P/2012, 3644-P/12, 220-P/2016, 3525-P, 3526-P/2015, 5-P/2016, R.P.8/2016 in W.P. 3526-P/2015, 2751-P, 2752-P, 3776-P/2015, 1845/05, 2212/06, 2213/06, 535, 536/07, 2952-P and 2953-P/2016)

(a) Income Tax Ordinance (XLIX of 2001)---

----Ss. 148(1) & 148(5)---Constitution of Pakistan, Art. 247(3)---Provincially Administered Tribal Areas ("PATA")---Advance income tax on import of raw material/machinery meant for "PATA"---Non-applicability of Income Tax Ordinance, 2001---Constitution itself granted complete immunity for, and in relation to income tax in "PATA"---Tax department, thus, lacked the jurisdiction to collect advance income tax on goods meant and intended for "PATA" under S. 148 of the Income Tax Ordinance, 2001.

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

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

----Ss. 3(1)(b) & 6---Constitution of Pakistan, Art. 247(3)---Plant located in Provincially Administered Tribal Areas---Sales tax on import of raw material/machinery meant for "PATA"---Non-applicability of Sales Tax Act, 1990---Constitution itself granted complete immunity for, and in relation to sales tax in "PATA", therefore, provisions of the Sales Tax Act, 1990 did not justify the levy and collection of sales tax on goods meant and intended for "PATA".

Master Foam Pvt. Ltd. v. Government of Pakistan PLD 2008 SC 373 distinguished.

(c) Appeal---

----Government department---Appeals should not be filed as a matter of routine or because a decision has been rendered against the (Government) department---Decisions should be taken on a reasonable basis and it was not advisable for government departments to waste public time and money by filing appeals routinely.

(d) Interpretation of statutes---

----Provision of a statute in conflict with the Constitution---Such provision must yield to the superior mandate of the basic law (i.e. the Constitution) which conferred on Parliament the power to enact laws.

(e) Exemption---

----Discretion of Government to allow an exemption---Scope---Policies in relation to grant of exemptions should be applied on a uniform and a non-discriminatory basis---While the power of granting exemptions was discretionary, it was equally true that the said power could not be exercised in a discriminatory manner---Exemptions were to be granted and regulated in terms of consistent policies for sound reasons---Exemptions should not be granted or refused arbitrarily or on the ipse dixit of the concerned officials---Power to grant an exemption or to decline to grant an exemption, must be exercised in accordance with the general principles relating to good governance.

Abid Hassan v. PHC 2005 SCMR 25 ref.

Khalid Abbas Khan, Advocate Supreme Court for Appellant/Petitioners (in C.A. 633/07).

Hafiz Ahsan Ahmad Khokhar, Advocate Supreme Court for Appellants/Petitioners (in C.As. 633-637/07 and 130-136, 138-140/09).

Issac Ali Qazi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.As. 68-70/11 and 158-160/15)

Dr. Farhat Zafar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.As. 1229/13).

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/Petitioners (in C.As. 983-999/15, 1025, 1026/15, 1337/16, 1353-1356/16, C.Ps. 3697 and 3698/16).

Rehmanullah, Advocate Supreme Court for Appellants/ Petitioners (in C.As. 172-174/17).

Raja M. Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants/Petitioners (in C.As. 135, 136/09).

Shumail Butt, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants/Petitioner (in C.A. 137/09).

Ahmed Raza Kasuri, Senior Advocate Supreme Court for Appellants/Petitioners (in C.A. 141/09).

Nemo for Appellants/Petitioners (in C.Ps. 261-265/11).

Khalid Anwar, Senior Advocate Supreme Court for Respondents (in C.As. 983, 996/15).

Issac Ali Qazi, Advocate Supreme Court and Raja M. Iqbal, Advocate Supreme Court for Respondents (in C.As. 984-999/15, 1025-1026/15 and 1229/13) (also in C.A. 134/09).

Dr. Farhad Zafar, Advocate Supreme Court for Respondents (in C.Ps. 263-P, 265-P/11).

Shumail Butt, Advocate Supreme Court for Respondents (in C.Ps. 1353-1356/16).

Ghulam Shoaib Jally, Advocate Supreme Court, Raja M. Iqbal, Advocate Supreme Court, Farhat Nawaz Lodhi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.As. 158-160/15).

Raja M. Iqbal, Advocate Supreme Court for Respondents (in C.A. 137/09).

Nemo for Respondents (in C.As. 633, 634, 636, 637/07 and 130-133/09).

Shumail Butt, Advocate Supreme Court for Respondents (in C.As. 635/07 and 137/09).

Habib Qureshi, Advocate Supreme Court for Respondents (in C.As. 68-70/2011).

M. Waqar Rana, Additional, A.-G.P. on Court's Notice.

2018 S C M R 960

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Federal Board of Revenue, Islamabad and others---Appellants

Versus

Messrs HORIZON INTERNATIONAL, KARACHI and others---Respondents

Civil Appeals Nos. 1577 to 1579 of 2017, decided on 6th February, 2018.

(On appeal from the judgment/order 18.09.2017 passed by High Court of Sindh, Karachi in C.P. No. 6000, 6927 and 6951 of 2010)

Customs Act (IV of 1969)---

----Ss. 26, 79 & 155-M---Import Policy Order, 2016, Para. 5(B)(iii)---Qanun-e¬-Shahadat (10 of 1984), Arts. 122 & 129(g)---Goods imported from a 'banned' country---Burden of proof---Scope---Provisions of the Ss. 26, 79 & S. 155M of the Customs Act, 1969, empowered the customs authorities to demand information, documents and record to satisfy themselves about, inter alia, the validity of the import of the goods, therefore it would be erroneous to presume that the burden of proof rested upon the customs authorities for establishing the origin of the imported goods from a banned jurisdiction---Material in relation to the origin of goods laid in the hands of the importers because they possessed knowledge about the specific details of the manufacturer, shipper, carrier, trans-shipper and ports of movement of the imported goods---Both, under the provisions of the Customs Act, 1969 and the ordinary principles of the law of evidence as provided in Arts. 122 & 129(g) of the Qanun-e¬-Shahadat, 1984, the primary onus of proof rested upon the importers to demonstrate the origin of the goods whereafter the secondary burden of disproof rested upon the customs authorities---Supreme Court remanded the present matter to the adjudicating authority for decision about the factual dispute between the parties relating to the origin of the subject goods---Appeal was disposed of accordingly.

Nemo for Appellants (in C.A. 1577 of 2017).

Raja M. Iqbal, Advocate Supreme Court for Appellants (in C.As. 1578 and 1579 of 2017).

Rasheed A. Rizvi, Senior Advocate Supreme Court, Shafqat Mehmood Chohan, Advocate Supreme Court and Ghulam Haider Sheikh, Advocate Supreme Court for Respondents (in C.As. 1577 and 1579 of 2017).

Nemo for Respondents (in C.A. 1578 of 2017).

2018 S C M R 963

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX, LARGE TAXPAYERS UNIT, KARACHI---Appellant

Versus

INTERNATIONAL POWER GLOBAL DEVELOPMENTS LIMITED, KARACHI---Respondent

Civil Appeal No. 27 of 2009, decided on 21st February, 2018.

(On appeal against the judgment dated 09.10.2008 passed by the High Court of Sindh, Karachi in I.T.R.A. No. 186 of 2017)

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

----S. 23(xviii)---Income from business, computation of---Deductions allowed---Scope---Expenditure incurred for setting up a sports and recreational facility for employees---Respondent-company derived its income by rendering operational and maintenance service to a power production company---In the subject assessment year the respondent incurred an expenditure of Rs.1,200,000/- for setting up a sports and recreational facility for its employees who resided within its residential colony---Respondent deducted such expense while computing its income---Tax department while passing the assessment order disallowed such deduction, which order was upheld up to the Appellate Tribunal---High Court decided the matter in favour of the respondent and allowed the deduction of such expenditure; held, that plain reading of S. 23 of the Income Tax Ordinance, 1979 showed that only such allowances and deductions were permissible which in some manner had nexus with the income that was derived from a business or profession---Expense in question was not a part of the salary or perk or privilege which the respondent paid to its employees under the contractual obligations for rendering service---Said expenditure was simply incurred to setup a complimentary facility for the employees which had no direct nexus with the generation of the respondent's income derived from rendering operational and maintenance services to a power production company---Expense in dispute neither fell under S. 23(xviii) of the Income Tax Ordinance, 1979 nor any other category of allowances or deductibles listed in rest of the provisions of S. 23, so as to justify its deduction while computing respondent's income---Expenditure in question, therefore, could not be taken into consideration while computing business income of the respondent---Impugned judgment of High Court was set aside and that of the Appellate Tribunal restored---Appeal was allowed accordingly.

Dr. Farhat Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Muhammad Idris, Advocate Supreme Court for Respondent.

2018 S C M R 987

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Faisal Arab, JJ

ZAFAR ALI and another---Appellants

Versus

MUSLIM COMMERCIAL BANK LIMITED and others---Respondents

Civil Appeal No. 57 of 2012, decided on 9th March, 2016.

(On appeal from the judgment of the Lahore High Court, Lahore dated 01.12.2011 passed in F.A.O. No. 317 of 2004)

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

----S. 19---Civil Procedure Code (V of 1908), O.XXI, R. 66---Ex parte decree against judgment debtor---Auction of judgment debtor's property on orders of Banking Court and High Court---Bona fide purchaser---Process of auction was set aside on the basis that the ex parte decree passed by the Banking Court was set aside by another Bench of the High Court---Legality---Auction of the disputed property took place through due legal process; full payment of sale consideration was made; sale was confirmed; sale certificate was issued without any objection either from the judgment-debtor or decree-holder; purchase of the auctioned property by the appellants was for valuable consideration and as per the appellants they had also spent huge amount on raising further construction over the disputed property and its renovation---Impugned judgment, lacking any valid justification for rejecting the claim of the auction purchaser/appellants in a routine manner, was liable to be set aside in order to re-examine bona fide nature of their claim---Supreme Court remanded the case to the High Court for fresh disposal on merits and in accordance with law after taking into consideration, whether the appellants were bona fide purchaser of the auctioned property for valuable consideration and in case it was so, whether their rights were not protected under the law in spite of the fact that the judgment and decree passed in the Banking suit was set aside vide another judgment of the High Court separately passed on the same date, which according to the judgment-debtor, remained unchallenged and thus attained finality---Appeal was allowed accordingly.

Hudaubia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Messrs Unicom Enterprises v. Banking Court No. 2, City Court Building Karachi and 2 others 2004 CLC 1452; Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others 2009 CLD 594 and Muhammad Attique v. Jam Limited and others PLD 2010 SC 993 ref.

Abdul Hameed Chohan, Advocate Supreme Court for Appellants.

Nazir Ahmed Bhutta, Advocate Supreme Court for Respondents Nos. 3 - 5.

Nemo for Respondents Nos. 1 and 2.

2018 S C M R 991

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

ADDITIONAL COMMISSIONER INLAND REVENUE, AUDIT RANGE, ZONE-I and others---Appellants

Versus

Messrs EDEN BUILDERS LIMITED and others ---Respondents

Civil Appeal No. 2148/2016 and Civil Petitions Nos.813-L and 814-L/2015, 579-L, 606-L to 608-L, 658-L, 1055-L, 1075-L, 1109-L, 1110-L, 2029-L, 2157-L, 2365-L, 3292-L/2016, 179-L, 802-L, 1490-L, 1634-L, 2041-L to 2050-L, 3195-L, 3210-L, 3385-L/2017, 88-L and 95-L to 97-L/2018, decided on 4th April, 2018.

(Against the orders/judgments dated 2.3.2015, 12.1.2015, 25.11.2015, 16.11.2015, 24.11.2015, 18.11.2015, 28.10.2015, 19.1.2016, 1.2.2016, 23.2.2016, 20.4.2016, 7.4.2016, 9.3.2016, 18.5.2016, 28.11.2016, 19.1.2017, 19.4.2017, 28.4.2017, 5.6.2017, 1.6.2017, 11.10.2017, 25.10.2017, 14.11.2017, 2.11.2017 and 24.10.2017 of the Lahore High Court, Lahore passed in W.P. No.15430/2014, P.T.Rs. Nos.233 and 234/2012, I.T.Rs. Nos.356, 321, 369 and 340/2015, I.T.A. No.286/2015, I.T.Rs. Nos.5 and 34/2016, W.Ps. Nos.18231 and 19677/2014, I.T.Rs. Nos.118, 108/2016 and 87/2015, P.T.R. No.26/2016, I.T.Rs. Nos.343/2016 and 9/2017, P.T.R. No.7/2013, W.P. No. 15659/2013, I.T.Rs. Nos.34486, 34516, 35358, 35364, 35369, 35373, 33411, 33422, 33470, 33518, 85689, 85691 and 89724/2017, 105/2016, 23149, 90000 and 90026/2017)

(a) Limitation---

----Tax matters---Law of limitation in so far as it regulated the period in which one party could avail a remedy against another was not to be lightly disturbed as the certainty created by limitation was necessary for the success of trade and business, more so when such limitation governed tax matters.

Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

---S. 122(2) [as amended by Finance Act (I of 2009)]---Assessment, amendment of---Amendment made in S. 122(2) of the Income Tax Ordinance, 2001 through Finance Act, 2009 dated 30-06-2009 was not retrospective in effect---Taxpayers who filed their tax returns before S. 122(2) of the Income tax Ordinance, 2001 was amended through the Finance Act 2009 dates 30-06-2009 would be governed by S. 122(2) as it stood before the said amendment.

Sajid Ijaz Hotiana, Advocate Supreme Court and Abdul Hameed Anjum, Secy. Legal, FBR for Petitioners (in C.A. 2148/2016).

Sarfraz Ahmed Cheema, Advocate Supreme Court for Petitioners (in C.Ps. 813-L and 814-L/2015, 579-L, 606-L, 1055-L, 1075-L, 2157-L, 2365-L and 2392-L/2016, 802-L, 1490-L, 1634-L, 2041-L to 2050-L, 3195-L and 3210-L/2017, 88-L, 95-L to 97-L/2018).

Ibrar Ahmed, Advocate Supreme Court for Petitioners (in C.Ps. 579-L, 606-L, 1055-L, 1075-L, 1109-L, 1110-L/2016).

Ijaz Ahmed Awan, Advocate Supreme Court for Petitioners (in C.P. 3195-L/2017).

Waqar A. Sheikh, Advocate Supreme Court for Petitioners (in C.P. 3385-L/2017).

Ms. Ayesha Hamid, Advocate Supreme Court for Respondents (in C.A. 2148/2016).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court and Shehryar Kasuri, Advocate Supreme Court for Respondents (in C.P. 813-L/2015).

Shahbaz Ahmed Butt, Advocate Supreme Court for Respondents (in C.Ps.2157-L, 608-L, 658-L, 1075-L/2016 and 1634-L, 2043-L, 2046-L to 2050-L/2017).

M. Ajmal Khan, Advocate Supreme Court for Respondents (in C.Ps.606-L, 579-L/2016, 1490-L/2017 and 88-L/2018).

Mansoor Usman Awan, Advocate Supreme Court for Respondents (in C.P.2392-L/2016).

M. Iqbal Hashmi, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondents (in C.Ps.1055-L/2016 and 95-L to 97-L/2018).

2018 S C M R 997

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Syed RIZWAN AHMED and 3 others---Petitioners

Versus

SECRETARY, CADD, ISLAMABAD and others---Respondents

Civil Petitions Nos. 4745 to 4748 of 2017, decided on 27th February, 2018.

(Against judgment dated 26.09.2017 of Federal Service Tribunal, Islamabad, passed in Review Petitions Nos. 122, 124, 126 and 129 of 2017)

(a) Civil service---

----Promotion rules, change in---Promptitude in challenging new promotion rules---Employees of the Directorate General of Special Education, Capital Administration and Development Division---Federal Government changed the promotion rules of the employees in question---Employees slept over the issue of change in their promotion rules for at least seven years before challenging the same before the Service Tribunal---No plausible explanation was offered for such delay---Where a right was required to be asserted, it had to be done vigilantly and no indulgence could be shown to indolent and negligent litigant---In matters relating to and arising out of service matters, a civil servant had to display vigilance and promptitude in approaching the appropriate fora and unexplained delay was always a material factor which could prove fatal for him---Petition for leave to appeal was dismissed accordingly.

Muhammad Asghar Rana v. Board of Intermediate and Secondary Education 2008 SCMR 663 and Rehmat Din v. Nasir Abbas 2007 SCMR 1560 ref.

(b) Review---

----Review could not be granted for merely re-examination of the same argument on merits or any additional ground which was beyond the scope of review jurisdiction.

Muhammad Ashiq v. Water and Power Development Authority 2009 SCMR 749 ref.

G.M. Chaudhry, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2018 S C M R 1001

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 466 of 2017, decided on 28th February, 2018.

(On appeal against the judgment dated 19.03.2014 passed by the Lahore High Court, Lahore in Murder Reference No. 305/2010 and Criminal Appeal No. 253-J of 2010)

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Accused was a friend of the deceased having his residence in the same neighborhood and was known to the entire family of the deceased---On the night of the incident accused was not found at his residence, when he ought to have been sleeping considering that the police was informed of the incident at 3:20 a.m.---Accused remained an absconder for nine days---Complainant and prosecution witnesses were residents of the same locality, whereas one of the witnesses resided in the house with the deceased where the murder took place---None of the witnesses, thus, could be said to be chance witnesses---Prosecution witnesses and the injured witness, who received dagger blows during the occurrence, had no reason to falsely implicate the accused---Doctor who conducted postmortem of the deceased and the doctor who examined the injured witness had both in their respective reports given the approximate time of injuries, which coincided with the time reported by the prosecution witnesses---Evidence that had come on the record was sufficient to lead to the conclusion that it was the accused who had committed murder of deceased---High Court had rightly upheld the conviction of accused under Ss. 302 & 324, P.P.C.---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Weapon of offence---Inconsistency in evidence of witnesses---Accused contended that initially it was reported in the FIR that he had a knife in his hand which in evidence turned out to be a dagger; held, that such inconsistency on its own strength could not be regarded sufficient enough to discard the unshaken ocular account of the incident---Medical evidence showed fourteen incised wounds on the body of the deceased inflicted by a sharp edged weapon, which could either be caused by a heavy knife or a dagger---Question as to whether it was a knife or a knife type of dagger, the same was a minor discrepancy without having any effect on the type of injuries sustained by the deceased---Appeal against conviction of accused was dismissed accordingly.

Ms. Aisha Tasneem, Advocate Supreme Court for Appellant.

Ch. Muhammad Waheed, Additional P.-G. for the State.

Muhammad Siddiq Khan Baloch, Advocate Supreme Court for the Complainant.

2018 S C M R 1005

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Appellant

Versus

FAZAL AHMED JAT and others---Respondents

Criminal Appeals Nos. 36-K to 44-K of 2013, decided on 2nd April, 2018.

(Against the judgment dated 27.11.2012 passed by the High Court of Sindh, Karachi in Criminal Accountability Acquittal Appeals Nos. 1, 2, 3, 5, 6, 8, 9, 11, 14, 15 of 2011 and 8 of 2012)

National Accountability Ordinance (XVIII of 1999)---

----S. 32(a)---Acquittal recorded by Accountability Court---Appeals against such acquittal filed by National Accountability Bureau ("the Bureau") before the High Court at a time when the post of either the Chairman of the Bureau or Prosecutor-General Accountability was vacant---Competency of appeals---High Court dismissed the appeals against acquittal by holding they had not been competently filed as in terms of S. 32(a) of the Ordinance such appeal could have been filed before the High Court by the Prosecutor General Accountability on directions of the Chairman, whereas in the present cases at the time of filing in three of the appeals there was no permanent Prosecutor-General Accountability and in the remaining appeals there was no permanent Chairman or a permanent Prosecutor-General Accountability holding the said offices; held, that an appeal could be filed only by the authority or the officer designated or prescribed for the purpose by a statute and such filing of an appeal could not be undertaken by any other officer or authority---Appeal to be filed against the judgment of an Accountability Court could be filed within a prescribed period of time and if during that period of time the officers mentioned in S. 32(a) of the National Accountability Ordinance, 1999 were not holding the said offices or those offices were vacant for any cause then such cause surely fell beyond the control of the Bureau---Depriving the Bureau of its right of appeal would be unjust---In the present cases, it appeared that most of the appeals had been filed by the Bureau before the High Court within the stipulated period of limitation and, thus, apparently the Bureau had not slept over the matter---Vacancies in the offices of the Chairman or the Prosecutor-General Accountability at the relevant time were circumstances beyond the control of the Bureau---Record also reflected that not only before the High Court but also before the Supreme Court the Bureau had been pursuing present matters with seriousness---In such circumstances the Special Prosecutor appearing on behalf of the Bureau wished to withdraw present appeals so that the Bureau may file fresh appeals before the High Court against the impugned judgments passed by the Accountability Court in favour of the accused along with applications seeking condonation of the delay---Supreme Court directed that present appeals were disposed of as having been withdrawn and that if the Bureau preferred fresh and competent appeals in present matters before the High Court and also sought condonation of the delay in filing of the appeals then the High Court would consider the issue of limitation in the proper context---Appeals were disposed of accordingly.

Bank of Punjab and another v. Hair Steel Industries (Pvt.) Limited and others PLD 2010 SC 1109; Al-Jehad Trust and another v. Federation of Pakistan and others PLD 2011 SC 811 and Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129 ref.

Munsif Jan, Special Prosecutor, Accountability and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant (in all cases).

Muhammad Aslam Butta, Deputy Attorney-General for Pakistan for the Federation (in all cases).

Abrar Hassan, Senior Advocate Supreme Court, Muhammad Ilyas Khan, Senior Advocate Supreme Court, Shoukat Hayat, Advocate Supreme Court, Abid S. Zuberi, Advocate Supreme Court, Muhammad Ashraf Kazi, Advocate Supreme Court, Ghulam Qadir Jatoi, Advocate-on-Record for Respondents and Akram Nadeem, Respondent in person (in all cases).

2018 S C M R 1009

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

Syed ALI IQBAL HUSSAIN---Petitioner

Versus

DISTRICT SESSIONS JUDGE, BAHAWALPUR and others---Respondents

C.M.A. No. 392 of 2018 and Civil Petition No. 391 of 2018, decided on 9th February, 2018.

(Against judgment dated 05.12.2017 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in I.C.A. No. 122 of 2015)

Maxim---

----Audi alteram partem, rule of---Scope---In appropriate cases, rule of 'audi alteram partem' could be dispensed with, where adherence to the rule would defeat the ends of justice and frustrate the legal process.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 ref.

Malik Muhammad Aslam, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2018 S C M R 1012

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

OIL AND GAS REGULATORY AUTHORITY through Secretary---Appellant

Versus

SUI SOUTHERN GAS COMPANY LIMITED and others---Respondents

Civil Appeal No. 549 of 2008, decided on 27th March, 2018.

(Against judgment dated 21.04.2008 of High Court of Sindh at Karachi passed in Constitution Petition No. D-91 of 2006)

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

----Ss. 2(xxxii), 6(2)(k), 23(1) & 43(1)---[Oil and Gas Regulatory Authority] Complaint Resolution Procedure Regulations, 2003, Regln. 3---Regulated activity---Scope---Oil and Gas Regulatory Authority, jurisdiction of---Private company moved an application with relevant Gas Company for a gas connection for the purpose of captive power generation to run its power generating sets---Such request was refused, whereupon the company filed a claim before the appellate authority constituted under the Oil and Gas Regulatory Authority Ordinance, 2002 ("Ordinance")---Appellate authority, after hearing the parties, directed the Gas Company to provide the requisite gas connection to the company within thirty days---High Court in accepting Constitutional petition filed by the Gas Company came to the conclusion that all proceedings initiated by the company before the Oil and Gas Regulatory Authority were illegal and without jurisdiction---Legality---Perusal of Ss. 2(xxxii) & 23(1) of the Ordinance showed that transmission, distribution and sale of natural gas required a licence---Any transaction inter alia involving sale of gas could clearly be classified as regulated activity---Section 6(2)(k) read with S. 43(1) of the Ordinance provided that the Oil and Gas Regulatory Authority ("OGRA") had the exclusive jurisdiction to hear and resolve all disputes arising out of activities between a licensee and any other person---Section 43(1) of the Ordinance provided that provisions of [Oil and Gas Regulatory Authority] Complaint Resolution Procedure Regulations, 2003 and any rules and licences promulgated/issued thereunder had an overriding effect on all conflicting provisions of any other law thereby clarifying that disputes relating to sale/supply of gas fell within the purview of 'OGRA'---Company filed a complaint before 'OGRA' under the Ordinance---Regulation 3 of the Complaint Resolution Procedure Regulations, 2003 clearly established that 'OGRA' had exclusive jurisdiction to entertain all complaints regarding the connection and disconnection of service---Furthermore perusal of the terms and conditions of the licence issued by 'OGRA' in favour of the Gas Company also conferred exclusive jurisdiction on 'OGRA' to determine whether a request by any person for a gas connection was reasonable---Ousting the jurisdiction of 'OGRA" in matters such as the present case would defeat the purpose of the law and leave the consumers remediless---Judgment of the High Court to the extent that it found proceedings before 'OGRA' irregular and without jurisdiction was set aside and deemed to be never part of the [High Court] judgment---Appeal was disposed of accordingly.

Makhdoom Ali Khan, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Asim Iqbal, Advocate Supreme Court for Respondents.

2018 S C M R 1036

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

ZULFIQAR ALI RANJHA and another---Appellants

Versus

ZIA ULLAH RANJHA and others---Respondents

Civil Appeal No. 1628 of 2017, decided on 4th May, 2018.

(On appeal against the judgment dated 13.04.2017 passed by the Lahore High Court, Lahore in Election Appeal No. 16 of 2016)

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

----R. 35(4)(c)(i)---Election for seat of Chairman and Vice Chairman of Union Council---Ballot papers excluded from tally of total votes on account of absence of signatures of presiding officer---High Court came to the conclusion that R. 35(4)(c)(i) of the Punjab Local Governments (Conduct of Elections) Rules 2013 specifically provided that where ballot papers did not bear the official mark and the signature of the Presiding Officer, the same were to be excluded from the vote count---Plea of returned candidates that exclusion of ballot papers from the tally of valid votes on account of absence of the signatures of the Presiding Officer was not justified when the ballot papers were duly stamped with the official mark and thus substantial compliance of the R. 35(4)(c)(i) of Punjab Local Governments (Conduct of Elections) Rules, 2013 was made---Validity---Ballot paper warranted out-right exclusion from the count if the signature of Presiding Officer as well as the official mark, both, were missing---Where only one of the two requirements existed and yet the final tally of votes cast at a polling station exceeds the number of ballot papers issued to the voters then too such ballot-papers should be excluded from the vote-count as excess of votes established that bogus voting had taken place---Polling agents of the contesting candidates also kept an account of the ballot-papers issued to the voters by the Presiding or Assistant Presiding Officers---Runner up candidates had never alleged that the final tally of ballot papers on the first or second count exceeded the number of ballot-papers legitimately issued at the disputed polling station during the polling process or that before commencing the count, the ballot boxes were removed from the sight of the their polling agents in order to give rise to the suspicion that the genuine ballot-papers may have been replaced with fake ones---In such circumstances the overall tally of ballot papers (inclusive of valid, rejected and excluded votes) issued at the time of polling at disputed polling station was 1178 and at both the stages of counting was also the same i.e. 1178 votes, totally ruling out bogus voting from the equation---Disputed ballot papers were, therefore, not smuggled from outside and polled but were part of 1178 ballot papers that were issued to the genuine voters who came to cast their votes at the disputed polling station but were excluded in the second count only for the reason that they did not bear the signature of the Presiding Officer---Mischief which sub-rule 4 of R. 35 intended to suppress was to prevent stuffing of ballot boxes with bogus votes which was not the case in the present proceedings---Supreme Court declared that disputed ballot papers were to be treated as valid and shall be taken into account at the time of vote-count---Appeal was allowed accordingly.

Jamal Shah v. The Member Election Commission PLD 1966 SC 1 ref.

Hamid Khan, Senior Advocate Supreme Court for Appellants.

Muhammad Munir Paracha, Advocate Supreme Court and Dil Muhammad Khan Alizai, Advocate Supreme Court for Respondents.

2018 S C M R 1043

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

IMRAN KHAN NIAZI---Appellant

Versus

AYESHA GULALAI---Respondent

Civil Appeal No. 1559 of 2017, decided on 14th March, 2018.

(Against order dated 24.10.2017 of Election Commission of Pakistan, Islamabad, passed in Case No. 17(9)/2017-Law)

(a) Constitution of Pakistan---

----Art. 63A(1)(a)---Disqualification on ground of defection---Reference filed before Election Commission by head of political party against one of his own members of Parliament---Plea on behalf of party head that the member of Parliament in question had tendered her resignation from the party within the contemplation of Art. 63A of the Constitution, therefore, she should be disqualified---Validity---Although the respondent (member of Parliament in question) on various occasions used language to the effect that she might leave her party or tender her resignation therefrom, but she did not follow that up with an intentional and voluntary act of resignation in the form of submitting her resignation in writing under her hand to the party head---During a speech made on the floor of the Parliament, respondent categorically stated that she neither had nor would resign from her party---Considering the totality of circumstances it was difficult to hold that the respondent had tendered her resignation from her party within the contemplation of Art. 63A of the Constitution---Appeal was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 63A(1)(b)---Disqualification on ground of defection---Reference filed before Election Commission by head of political party against one of his own members of Parliament---Plea on behalf of party head that the member of Parliament in question had abstained from voting contrary to the direction of her Parliamentary party during election of Prime Minister in the National Assembly, therefore, she should be disqualified in terms of Art. 63A(1)(b) of the Constitution---Validity---No written directions were issued by the Parliamentary party to the respondent regarding voting or abstaining from voting in the House as per party policy---Head of political party stated that such directions were verbally issued, however, such assertion had categorically been denied by the respondent---Case of the party head hinged merely on oral assertions and affidavits of party loyalists---In the absence of concrete and unassailable evidence establishing that instructions of the Parliamentary party were conveyed to the respondent, the court was not inclined to visit her with the penalty of disqualification from membership of Parliament---Appeal was dismissed accordingly.

Sardar Sher Buhadar Khan v. Election Commission of Pakistan through Secretary, Election Commission of Pakistan and others 2017 SCMR 97 ref.

Sikandar Bashir Mohmand, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Nemo for Respondent.

2018 S C M R 1051

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

UMER KHURSHEED and another---Petitioners

Versus

Syed TUFAIL AHMAD and others---Respondents

Criminal Petition No. 80-L of 2016 and Criminal Misc. No. 37-L of 2018 and Criminal Petition No. 151-L of 2016, decided on 2nd April, 2018.

(On appeal from the judgment of the Lahore High Court, Lahore dated 11.12.2015 passed in Crl. Appeal No. 1099 of 2014 and Crl. Revision No. 639 of 2014)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---First Information Report (FIR) for the incident was lodged with a delay of more than 18 hours---Private complaint was instituted by the complainant after more than 9 months of the occurrence---Security guard who worked at the place of occurrence was not cited as a witness in the FIR, but was introduced by the complainant for the first time in his private complaint---Trial Court had provided valid reasons for disbelieving said witness---Three other alleged witnesses cited in the private complaint were given up by the prosecution as being unnecessary---In his cross examination alleged star eye-witness stated that despite the fact that police station was at a 5 minutes walking distance from the place of occurrence, he did not report the matter to the police---As per stance of said witness, when the accused made a second fire at him, he ran for his life and took shelter in a nearby school, but during trial he did not disclose the name of the school---Said witness admitted in his examination in chief that he did not take the deceased to the hospital in injured condition and that he did not know as to who had taken the deceased to the hospital---Strangely said witness hired a rickshaw after the occurrence to go to a hospital when his car was available and parked at the place of occurrence---Prosecution failed to bring on record any medical certificate which could substantiate the stance of said eye-witness that after the occurrence he was medically treated at a hospital---Facts also showed that it was improbable that the statement of said eyewitnesses would have been recorded by the police on the night of occurrence prior to the registration of FIR---Presence of said eyewitness at the place of occurrence at the relevant time was not free from doubt and his conduct was highly improbable---Motive behind the occurrence had already been disbelieved by the Trial court and even the High Court had not given any definite finding qua the same---Recovery of revolver at the instance of the accused was also disbelieved by the Trial Court valid reasons as crime empties and the revolver were sent to the Forensic Science Laboratory on the same day after the arrest of accused---Furthermore co-accused who had been assigned a specific role by the complainant was acquitted by the courts below, and his acquittal was not challenged by the complainant---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Accused was acquitted of the charge of murder in such circumstances.

Shahid Azeem, Advocate Supreme Court for Petitioners (in Criminal Petition No. 80-L of 2016 and Criminal Misc. 37-L of 2018).

Syed Tayyab Mehmood Jafari, Advocate Supreme Court for Petitioners (in Criminal Petition No. 151-L of 2016).

M. Jaffar, Additional P.-G. for the State.

2018 S C M R 1120

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Qazi Faez Isa, JJ

IKHLAQ AHMED and others---Petitioners

Versus

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

Civil Petitions Nos. 2537 to 2549 of 2016 and 2644-L of 2016, decided on 23rd April, 2018.

(On appeal against the judgment dated 09.05.2016 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos. 1575, 1577 to 1585, 1420, 1421, 1422 and 3594 of 2010)

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

----R. 23---Power of Chief Minister to relax rules in case of hardship---Scope---Contract employees---Regularization in service---Petitioners were appointed on contract basis for a period of three years, however, only after a year an order was issued by which the petitioners were regularized with immediate effect, in relaxation of the provisions of the Contract Appointment Policy and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as a special one-time dispensation---Legality---Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 ("the Rules") stated that "any of the rules" in "any individual case of hardship" and "for special reasons to be recorded in writing" and "to the extent prescribed" by the Chief Minister may be relaxed---In case of petitioners not a single one of said stipulated preconditions were even mentioned, let alone fulfilled, and were flouted---Reason given by the Principal Secretary to the Chief Minister for relaxing the Contract Appointment Policy and the Rules was to prevent the petitioners from getting better salaries and perks in the private sector and therefore it was deemed to be in the "public interest" to get them regularized---Same Principal Secretary however contradicted himself subsequently and mentioned "compassionate circumstances of the case and the experience accumulated by them [petitioners] during the period of their contractual appointment" as reasons for relaxing the Rules and recommending the petitioners' regularization---Incongruous order was passed which both relaxed the Rules and regularized the petitioners---Such order did not mention the individual hardship of any petitioner, it was not passed by the Chief Minister, "special reasons" were not recorded in writing by the Chief Minister necessitating relaxing of the Rules and the particular rule, i.e. "any one of the rules" was not mentioned---Completely illegal exercise was carried out in purported exercise of R. 23 of the Rules---Principal Secretary to the Chief Minister, implemented the wish of the Chief Minister and did so by resorting to absurd reasons without compunction, and he apparently did so in his enthusiasm to appease and serve the person of the Chief Minister, and not the Province and its people---Supreme Court observed that bureaucrats must remember that they were servants of the State and the people and that their abject subservience to one person (the Chief Minister in the present case) destroyed the confidence of the people in the bureaucracy---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Tariq Javed, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record (Absent) for Petitioners (in C.Ps. 2537-2549 of 2016).

Muhammad Lehrasib Khan, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record (Absent) for Petitioners (in C.P. 2644-L of 2016).

Barrister Qasim Ali Chohan, Additional Advocate-General, Punjab and Zeeshan Ranjha, S.O., S&GAD, Punjab for Respondents.

2018 S C M R 1126

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

INCOME TAX OFFICER---Appellant

Versus

AKBAR GUL---Respondent

Civil Appeal No. 1663 of 2008, decided on 9th April, 2018.

(Against judgment dated 08.08.2008 of High Court of Sindh at Karachi, passed in Income Tax Reference No. 154 of 1993)

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

----S. 151 & Second Sched., Part-I, Cl. 99---Exemptions from total income---Partnership engaged in poultry business---Income of partnership exempted from tax---Prohibition on extending benefit of such exemption to partners (second recipients) when receiving their share of profits from the partnership---Respondent/assessee was carrying on business of poultry in partnership with another person through an unregistered partnership firm---Total income of the firm was entitled to certain exemptions under Cl. 99 of Part-I of Second Sched. to the Income Tax Ordinance, 1979, which exemption was duly availed---Respondent, however, also claimed the same exemption for his share of the profit received from the business of the firm, which was declined by the income tax officer in view of the provisions of S. 151 of the Income Tax Ordinance, 1979---Legality---Perusal of S. 151 of the Income Tax Ordinance, 1979 showed that the exemption available under Cl. 99 of Part-I of Second Sched. to the said Ordinance was limited to the original recipient of that income and did not extend to any person receiving any payment wholly or in part out of that income---Partnership firm whether registered or unregistered was an independent assessee and was treated as a legal entity; it was distinct from its partners for the purposes of filing returns, payment and calculation of taxes---In the present case, the income was admittedly received by the unregistered partnership firm which (as a legal entity) enjoyed exemption from payment of income tax, however, any part of its income which was received by the respondent (partner) was taxable in view of the provisions of S. 151 of the Income Tax Ordinance, 1979 which provided that exemption shall not extend to any person receiving payment from the original recipient---Second recipient, such as the respondent-partner, was not entitled to claim any exemption from tax---Appeal was allowed accordingly.

Julian Housing Dinshaw Trust v. Income Tax Officer 1992 PTD 1 = 1992 SCMR 250 and Commissioner of Income Tax, Karachi (West), Karachi v. Muhammad Yousuf & Co. Karachi 1984 PTD 74 distinguished.

M. Habib Qureshi, Advocate Supreme Court for Appellant.

Ex parte for Respondent.

Habib Ullah Khan, Member IR, FBR on Court's Call.

2018 S C M R 1131

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

The TAXATION OFFICER/DEPUTY COMMISSIONER OF INCOME TAX, LAHORE---Appellant

Versus

Messrs RUPAFIL LTD. and others---Respondents

Civil Appeal No. 723 of 2013, decided on 14th March, 2018.

(Against the judgment dated 29.05.2009 of the Lahore High Court, Lahore passed in W.P. No. 1363 of 2003)

(a) Limitation---

----Law prescribing period of limitation was to be considered as procedural rather than substantive.

(b) Limitation---

----Enlargement of time through an amendment---Where right to commence proceedings had already become time barred then a subsequent enlargement of time through an amendment would be of no avail---With the lapse of prescribed time, the transaction became a past and closed transaction, vesting a party with a right thus accrued which could not be taken away by a subsequent amendment.

(c) Income Tax Ordinance (XLIX of 2001)---

----S. 221(4)---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss. 62 & 156---Rectification of mistake---Assessment orders passed under the provisions of the repealed Income Tax Ordinance, 1979 ["the assessment orders']---Notices issued by the tax department under S. 221(2) of the Income Tax Ordinance, 2001 requiring the tax payers to show cause as to why their "assessment orders" for the relevant assessment years be not amended/rectified---Question as to whether provisions of S. 221 of the Income Tax Ordinance 2001 could be applied to the assessment orders passed under the provisions of the repealed Income Tax Ordinance, 1979; held, that the assessment order sought to be rectified through the impugned notices were finalized under S. 62 of Income Tax Ordinance, 1979 between May 2001 and June 2002, whereas said Ordinance prescribed a period of four (4) years for rectification of the assessment made under S. 62---Income Tax Ordinance, 1979 was repealed on 30-06-2002, whereafter, in July 2002, Income Tax Ordinance, 2002 came into force---Period of limitation prescribed through S. 156 of Income Tax Ordinance, 1979 had, therefore, not expired at the time of promulgation of Income Tax Ordinance, 2001---Such period during its currency thus stood extended through subsection (4) of S. 221 of Income Tax Ordinance, 2001 which provided a period of 5 (five) years for rectification of mistakes, from the date of the assessment order, sought to be rectified---Procedural amendments applied to all cases which had not become past and closed transactions, therefore, the provisions of S. 221, Income Tax Ordinance, 1979 had been rightly invoked in the present case---Appeal was disposed of accordingly.

(d) Income Tax Ordinance (XLIX of 2001)---

----S. 221---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss. 9, 10 & 80-D---Rectification of mistake---Notices issued by the tax department under S. 221(2) of the Income Tax Ordinance, 2001 requiring the tax payers to show cause as to why their assessment orders for the relevant assessment years be not amended/rectified by levying surcharge on the tax levied under section 80-D of the repealed Income Tax Ordinance, 1979---Question as to whether surcharge could be levied on the "minimum tax" payable under S. 80-D and other paramateria sections of the repealed Income Tax Ordinance, 1979; held, that income tax in terms of S. 9 of Income Tax Ordinance, 1979 was charged and levied in respect of the total income of the assessee and at the rate specified in the First Schedule, whereas S. 80-D unlike the provision of S. 9 provided for levying "minimum tax" where no tax was payable in terms of the later provision, and in a certain specified situation, also provided for levying and charging tax in excess of what may otherwise be payable under S. 9 of the Income Tax Ordinance, 1979---Section 80-D of the said Ordinance dealt with a situation where either no tax was payable by the assessee, or the tax payable was less than one-half percent of the amount representing its turnover---Both the situations envisioned under S. 80-D did not allow for levying any surcharge, as surcharge was charged on income tax only, whereas in the first of the above situation, no income tax was payable, and in the second what was charged by way of "minimum tax"/"tax", rather than income tax, was already in excess of the income tax payable in terms of S. 9 of Income Tax Ordinance 1979, and therefore there was no justification for levying of any surcharge thereon, more so when all ingredients essentially required for such levy, were clearly missing---Surcharge could not be levied in the present case on the "minimum tax" payable under Section 80-D and other paramateria sections of the repealed Income Tax Ordinance, 1979---Appeal was disposed of accordingly.

Ibrar Ahmed, Advocate Supreme Court for Appellant.

Mian Ashiq Hussain, Advocate Supreme Court for Respondents Nos.1 - 3.

2018 S C M R 1139

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ.

BRUCE CARSON---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

Decided on 23rd March, 2018.

(On appeal from the Court of Appeal for Ontario)

Per Karakatsanis, J; McLachlin C.J., Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ. concurring; Côté, J. dissenting.

Criminal law---

----"Influence peddling", offence of [Criminal Code, R.S.C. 1985 (Canada), c. C-46, s. 121(1)(d)(i)]---Essential elements---Accused accepting benefits from a company as consideration for assisting the company in selling its products by using his Government contacts---Question as to whether assistance accused promised to provide was in connection with any matter of business relating to government---"Any matter of business relating to the government"---Meaning---Accused was former senior advisor in the Office of the Prime Minister---Year following his departure from this position, he agreed to use his government contacts to help a company sell water treatment systems to an indigenous community---In exchange, the company promised to pay a commission to accused's then girl friend---After the agreement was made, accused spoke to government officials in order to promote the purchase of company's products and sought to convince the relevant Government department to set up a project whereby it would fund the purchase of company's products to pilot them in indigenous communities---Section 121(1)(d)(i) of the Criminal Code (of Canada) criminalized the selling of influence in connection with any matter of business relating to the government---Accused was charged with influence peddling under S. 121(1)(d) and at trial, he took the position that his assistance was not in connection with a matter of business relating to the government---Trial judge agreed and acquitted him on the basis that the indigenous community, rather than Government, decided whether to purchase the type of water treatment systems sold by the company---Court of Appeal however, set aside the acquittal, and entered a verdict of guilty and remitted the matter to the Trial judge for sentencing---[Per Karakatsanis, J (Majority view): held, that by criminalizing influence peddling, S. 121(1)(d) of the Criminal Code (of Canada) strived to preserve both Government integrity and the appearance of Government integrity; it helped ensure that Government activity was driven by the public interest and promoted confidence in the democratic process---Section 121(1)(d) created a conduct offence---Offence was complete once the accused demanded a benefit in exchange for a promise to exercise influence in connection with a matter of business that related to Government---Accused did not need to actually have influence with the Government, endeavoured to exercise influence, or succeeded in influencing Government to be found guilty of said offence---Relevant constituent elements of the offence were: having or pretending to have influence with the Government, a minister, or an official; directly or indirectly demanding, accepting, or offering or agreeing to accept a reward, advantage or benefit of any kind for oneself or another person; as consideration for the cooperation, assistance, exercise of influence, or an act or omission; in connection with a transaction of business with or any matter of business relating to the Government---Offence under S. 121(1)(d)(i) required that the promised influence be in fact connected to a matter of business that related to Government---Simply showing that the accused accepted a benefit in exchange for promising to influence Government did not suffice to make out the offence---Nevertheless, the phrase "any matter of business relating to the government" must be interpreted broadly---Any matter of business related to the Government if it depended on Government action or could be facilitated by the Government, given its mandate---Matters of business relating to the Government included publicly funded commercial transactions for which the Government could impose or amend terms and conditions that would favour one vendor over others---Phrase "any matter of business relating to the government" must not be restricted to matters of business that could be facilitated by Government under its existing operational structure---Offence in question captured promises to exercise influence to change or expand Government programs---In the present case accused's promised assistance was in connection with a matter of business relating to the Government---Federal Government had the authority to provide services, including clean drinking water, on reserves for indigenous communities, therefore, it could have facilitated the sale of company's products to such communities---Although, at the time of the offence, indigenous communities could have purchased systems such as the company's with Government funds without obtaining Government's prior approval, the Government could have changed its mode of operations, modified its funding structure or terms and conditions, or created new pilot projects in a manner favorable to the company---Further, it was clear that the accused believed, at the time he made the agreement, that the sale of company's products to indigenous communities could be facilitated by the Government---By demanding a benefit in exchange for his promise to exercise his influence with the Government to the company's advantage, the accused undermined the appearance of Government integrity, therefore, he was guilty of influence peddling contrary to S. 121(1)(d)(i) of the Criminal Code (of Canada)---Present case should be remitted to the Trial judge for sentencing]---[Côté, J. dissenting (Minority view): Scope of S. 121(1)(d) should be limited to matters of business that depended on some Government approval or action within existing operational structures of Government---Any relationship between the matter of business concerned and the Government must exist at the time of the corrupt agreement---Where the Government had intentionally placed matters of business outside of its operational reach, they could not be said to be matters of Government business simply because the Government could, at a future date, reclaim control over them---Matter of business would relate to the Government only if the operational structures in place at the time of the corrupt agreement were such that it depended on some Government approval or action---Agreement between the accused and the company was not made in connection with a matter of business relating to the Government---Matter of business contemplated by the agreement was the sale of point-of-use water treatment systems to indigenous communities---As the Federal Government had, at the time of the corrupt agreement, granted indigenous communities complete autonomy with regard to the purchase of point-of-use water treatment systems, the corrupt agree-ment could not be said to be in connection with a matter of business relating to the Government---Accused had to be acquitted in such circumstances]---Appeal against conviction was dismissed.

R. v. Hinchey, [1996] 3 S.C.R. 1128; United States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. Giguère, [1983] 2 S.C.R. 448; R. v. Cogger, [1997] 2 S.C.R. 845; R. v. O'Brien (2009), 249 C.C.C. (3d) 399; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; Conférence des juges de paixmagistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326; R. v. Morin, [1992] 3 S.C.R. 286 and R. v. Cassidy, [1989] 2 S.C.R. 345 ref.

Patrick McCann and Tael Wexler for Appellant.

Roger Shallow for Respondent.

2018 S C M R 1166

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Qazi Faez Isa, JJ

Malik AMEER HAIDER SANGHA and another---Petitioners

Versus

Mrs. SUMAIRA MALIK and others---Respondents

Civil Petition No. 3122 of 2017, decided on 8th May, 2018.

(On appeal against the judgment dated 07.07.2017 passed by the Islamabad High Court, Islamabad, in W.P. No. 4815 of 2016)

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

----S. 18(1)---Punjab Local Government (Conduct of Elections) Rules, 2013, R. 78---Constitution of Pakistan, Arts. 140A, 218(3) & 219(d)---Election for Chairman and Vice-Chairman of District Council---Violation of secrecy of ballot---Power of Election Commission to order a re-poll before it had notified elections results---Due to violation of secrecy of ballot during voting the Election Commission set aside the election and directed that re-poll be conducted---High Court held that the Election Commission could not have ordered re-poll as it did not have such power, particularly when the dispute was one, "which could not have been resolved without recording of evidence", and that the petitioners (runner up candidates) could have challenged the elections by filing an election petition---Legality---Election Commission had the power to order a re-poll (for a local government election) before it had issued the notification declaring the winning candidate/s---In the present case, the Presiding Officer personally observed that a number of voters had breached the secrecy of the ballot and submitted a written complaint---Sealed bag in which the record of the election was stored contained the complaint of the Presiding Officer on which appeared the signature of the Returning Officer in confirmation of its receipt---In his complaint the Presiding Officer also named the voters who had shown their ballot papers after they had marked them but before they had put them in the ballot box, therefore, it was not understandable as to why there was a need to record additional evidence by the Election Tribunal, as held by the High Court---Sufficient grounds were available before the Election Commission to order a re-poll---Supreme Court directed the Election Commission to hold re-election to the posts of Chairman and Vice Chairman of the concerned District Council and in such regard to issue a fresh election schedule at the earliest---Appeal was allowed accordingly.

Kh. Haris Ahmed, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Mubeen uddin Qazi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 and 4.

Abid Hussain, DRO, Khushab for Respondent No. 5.

Abdul Hameed Sumbal, R.O. for Respondent No.6.

Israr Ahmed, Presiding Officer for Respondent No.7.

Muhammad Arshad, D.G. (Law) and Muhammad Ishaq, Director Protocol, ECP for Respondent No.8.

2018 S C M R 1177

[Supreme Court of Pakistan]

Present: Mushir Alam and Syed Mansoor Ali Shah, JJ

ALLAH DITTA and others---Appellants

Versus

MEMBER (JUDICIAL), BOARD OF REVENUE and others---Respondents

Civil Appeal No. 1257 of 2013, decided on 13th March, 2018.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench, dated 03.10.2013, passed in W.P. No. 3386 of 2006)

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 135--- Application for partition--- Objections against---Non-speaking order---Respondent filed application for partition before the Tehsildar under S. 135 of the Punjab Land Revenue Act, 1967, which was allowed with the passing of a preliminary decree---Naqsha jeem was prepared and objections filed by the appellant to the said naqsha jeem were rejected by the Tehsildar---Appeal against the same before the DO(R) was dismissed, while revision filed before the EDO (R) was also dismissed---Finally the Member Board of Revenue remanded the matter to the DO(R)---Contention of appellant was that land sold by the respondent was not excluded while preparing naqsha jeem---Validity---Orders of the Tehsildar, the DO(R), as well as, the EDO(R) did not address the objections raised by the appellant regarding adjustment of the land sold by the respondents through a speaking order---Member Board of Revenue had rightly remanded the case to the Revenue Officer below to examine the record and pass a speaking order in such regard---Supreme Court remanded the matter to the Tehsildar concerned to consider the objections filed by the appellant against naqsha jeem and decide the same through a speaking order, clearly attending to the objection regarding land to be excluded from the share of the respondent, if any---Appeal was allowed accordingly.

(b) Remand---

----Scope---Order of remand was not a final order and simply sent the matter for re-examination for the second time---Remand order did not finally determine the claim or the rights of the parties---Forum to which the case was sent for fresh decision was free to re-examine the case and pass a fresh judgment---Against any such subsequent decision or judgment, alternate remedy was available to the parties.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Remand order---Order of remand that was facially perverse or without jurisdiction or otherwise void could be interfered with under Constitutional jurisdiction like any other order.

Ghulam Rasool v. Khudai Dad PLD 1986 Quetta 130 ref.

(d) Punjab Land Revenue Act (XVII of 1967)---

----S. 164--- Constitution of Pakistan, Arts. 184(3) & 199---Constitutional jurisdiction of the High Court/Supreme Court---Scope---Remand order passed by Member, Board of Revenue---Constitutional Court must approach and examine a remand order passed by the Board of Revenue with care and circumspection, so as to sparingly interfere with it, unless, the remand order was facially perverse, without jurisdiction or otherwise void.

Ramzan v. Rehabilitation Commissioner (Legal) Sargodha PLD 1963 Lah. 461; Kaniz Fatima v. Board of Revenue PLD 1973 Lah. 495 and Ghulam Rasool v. Khudai Dad PLD 1986 Quetta 130 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Appellants.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondent No.2.

2018 S C M R 1181

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab and Sajjad Ali Shah, JJ

Messrs STATE OIL COMPANY LIMITED---Petitioner

Versus

BAKHT SIDDIQUE and others---Respondents

Civil Petitions Nos. 409-K to 414-K of 2017, decided on 8th December, 2017.

(On appeal against the judgment dated 01.06.2017 of the High Court of Sindh at Karachi passed in Constitutional Petitions Nos.D-3199, D-4605 and D-5079 of 2013 and D-509, D-2034, D-1091 of 2014)

(a) Civil service---

----Regularization in service---Scope---Regularization of employees was not a part of the terms and conditions of service of the employees for which there need to be some statutory rules but it depended upon the length of service.

(b) Civil service---

----Employees of a State-owned company outsourced to a contractor---Regularization in service---Plea of company that employees in question could not be regularized as they were not the company's employees but were outsourced to some contractor---Validity---State companies/ industries had adopted the practice of outsourcing the employment of posts which were permanent in nature---Record showed that employees in question had been in service starting from as far back as the year 1984---Outsourcing of employees seemed to be a sham or pretence---Employees in question, even if assumed to be employees of contractor, had been performing duties of permanent nature and should have been regularized---Supreme Court directed that employment of the employees in question shall be regularized with effect from the date when they approached the High Court through the Constitutional petition but for their pensionary benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they joined service of the company---Petitions for leave to appeal were dismissed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Syed Shoa-un-Nabi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents.

2018 S C M R 1183

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

CONTEMPT PROCEEDINGS AGAINST MUHAMMAD NEHAL HASHMI: In the matter of

Criminal Original Petition No. 23 of 2018, decided on 27th March, 2018.

(Contempt proceedings against Muhammad Nehal Hashmi under section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) read with Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973)

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Supreme Court---Abusive language used against Judges of the Supreme Court---Unconditional apology and undertaking by contemnor---Effect---Contempt proceedings dropped against contemnor---Words and conduct of the contemnor constituted gross contempt of the Supreme Court---Contemnor had also admitted his unbecoming conduct, however, he had expressed regret and remorse about his conduct, submitted an unconditional apology and placed himself at the mercy of the Court seeking forgiveness--- Such remorse prima facie appeared to be sincere---Further, the contemnor had given an assurance and undertaking that he would not give any cause of complaint of any nature in the future to the Court in respect of his conduct---Keeping in view the(old) age, mental state and health of the contemnor, and the fact that he had recently served a sentence awarded to him by the Supreme Court and also stood disqualified from holding a public office for a period of five years, the Supreme Court decided to exercise restraint, magnanimity and forbearance in the present matter---Supreme Court accepted the unconditional and unqualified apology tendered by the contemnor and dropped the proceedings for contempt of Court initiated against him---Supreme Court directed that in case of any lapse on the part of the contemnor with respect to complete and faithful adherence to the assurance and undertaking given by him in writing, he shall be dealt with strictly in accordance with law, and no leniency would be shown towards him, and that present order was being passed in view of the peculiar facts and circumstances of the present case, therefore, it shall not be used or cited as a precedent for any future case.

Muhammad Nehal Hashmi, the Contemnor.

Rashid A. Rizvi, Senior Advocate Supreme Court/Ex-President, Supreme Court Bar.

Syed Kaleem Ahmed Khurshid, Senior Advocate Supreme Court/President, SCBA.

Kamran Murtaza, Senior Advocate Supreme Court/Vice-Chairman, Pakistan Bar Council.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Naeem Bukhari, Senior Advocate Supreme Court, Ahsan Bhoom, Advocate Supreme Court/Member, Pakistan Bar Council, Salah ud Din Gandapur, Vice-Chairman, Sindh Bar Council and Mansoor Leghari, Chairman, Executive Committee.

2018 S C M R 1191

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

Dr. IKRAMULLAH KHAN---Petitioner

Versus

KHYBER PAKHTUNKHWA AGRICULTURAL UNIVERSITY, PESHAWAR and others---Respondents

Civil Petition No. 536 of 2015, decided on 12th April, 2018.

(Against judgment dated 04.2.2015 of the Peshawar High Court, Peshawar passed in Writ Petition No. 1012 of 2014)

Civil service---

----Post of Associate Professor in 'Weed Science' department of University---Qualification and experience---Grievance of the petitioner was that though he has achieved his Doctor of Philosophy (Ph.D) degree, in "Weed Sciences", and also possessed the requisite length of ten (10) years experience, as prescribed for the post of Associate Professor (BS-20) but he had not been selected for the said post, and instead respondents who had neither been conferred doctorate in "Weed Science" nor possessed the requisite experience, had been selected for such appointment---Validity---Committee was constituted in order to determine as to which particular field of Agriculture Science, the doctorate degrees conferred upon the petitioner and respondents pertained to---Said Committee upon examining the dissertations, and after due deliberation came to the conclusion that the dissertations/thesis of all three of them pertained to the field of 'Weed Science'---In his report the Chairman, Higher Education Commission fully endorsed the opinion and findings expressed by the Committee---Although the text of the PhD degrees awarded to the respondents did not contain the word "Weed Science", however, as stated by the experts and academics on the subject, it was not the text of the degree that was determinative of the question, as to in which specific field or the area of a particular subject, the degree had been awarded, it was rather the dissertation/thesis which revealed the field/specialization and the scope of the degree---Subject, scope and the focus of respondents in their doctorate program was therefore evidently and clearly relating to the management of weeds which fell within the ambit of 'Weed Science'---Academic record of the respondents and the petitioner also showed that the respondents had been studying the subject of 'Weed Science' much earlier than the petitioner---Record also reflected that both the respondents since their appointment in the years 2002 and 2003 respectively had been teaching 'Weed Science' at the University in question---Fact as to when and on what date such appointments of respondents were confirmed had absolutely no relevance, more so when it had not been alleged that they were not teaching the students on regular/full time basis, like the petitioner, or any other lecturer/teacher appointed on regular basis---Furthermore the credential and academic qualifications of the respondents were evaluated by three subject specialists from outside the University in question, and the same were re-evaluated by a high profile committee---After going through the said process, respondents were granted marks higher than those granted to the petitioner, and their re-evaluation by the Selection Board was approbated by the Syndicate of the University---Petition for leave to appeal filed by the petitioner challenging the appointment of respondents was dismissed accordingly and leave was refused.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Khalid Khan, Advocate Supreme Court for Respondents Nos.1 - 5.

Tanvirul Islam, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 6 - 7.

Nemo for Respondent No.8.

Dr. M. Mukhtar, Chairman HEC, Professor Khan Bahadur and Professor M. Ismail on Court's Call.

2018 S C M R 1199

[Supreme Court of Pakistan]

Present: Mushir Alam and Syed Mansoor Ali Shah, JJ

MUHAMMAD IRFAN---Appellant

Versus

Mst. GUL AFROZ JAN (DECEASED) through LRs and others---Respondents

Civil Appeal No. 1044 of 2015, decided on 12th March, 2018.

(On appeal from Judgment dated 10.06.2015 passed by the Peshawar High Court, Bannu Bench in C.R. No. 169-B of 2014)

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Common land/pathway---Proprietary rights through exclusive usage---Question as to whether a pathway or a galli, in an Abadi Deh was a common land for the use of the village community or whether, exclusive usage of the pathway or galli over the years by respondents (certain residents of Abadi Deh) granted them possessory and, as a result, proprietary rights over the said pathway; held, that subject pathway was described as an Abadi Dehor "inhabited site of a village" as per the Record of Rights---Said pathway according to the Khaka Tasweri was connected to other pathways or gallis in the village and ran along the mosque and other houses and ended as a cul de sac at the house of the respondents---In the absence of any proof of exclusive possession of the pathway by the respondents, mere usage of a common pathway by the respondents did not amount to possession---Pathways formed part of the commons and were to be used by everyone in the village, unless of course, the residents (or respondents in the present case) had through any means denied access of the pathway over the years to other residents of the village, thereby establishing exclusivity of possession---Khaka Tasweeri showed that the pathway was connected to other pathways in the village and was a communal pathway just like the other pathways in the village, therefore, the argument that the respondents enjoyed exclusive possession of the pathway was not supported by any tangible evidence---Furthermore a special attorney of respondent had made a statement before the court that the said pathway was built up by the relevant Municipal Authority, which also underlined the public character of the pathway and affirmed that it was part of the commons/shamilat---Suit filed by respondents was rightly dismissed by the lower Appellate Court--- Appeal was allowed accordingly.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Kh. Azhar Rasheed, Advocate Supreme Court for Respondents Nos.1 - 3.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Respondent No.4.

2018 S C M R 1218

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

INTRA COURT APPEALS NOS.4, 6, 8, 9, 18, 19, 21 TO 23 OF 2017 AND 2 OF 2018

(Against the judgment dated 29.3.2017 of this Court passed in Crl.O.Ps. Nos.33, 60, 55 and 62/2017)

AND

CRIMINAL MISC. APPLICATIONS NOS.43 TO 45 OF 2018

(Applications for impleadment)

AND

CRL. REVIEW PETITIONS NO.42, 68 AND 523 OF 2017

(On review of this Court's judgments dated 29.3.2017/28.3.2017 passed in Crl.O.P.60/2017 and C.M.A.687/2017)

AND

CIVIL MISC. APPLICATION NO.3347 OF 2017 IN CIVIL REVIEW PETITION NO.NIL OF 2017 IN CIVIL MISC. APPLICATION NO.687 OF 2017

(Permission to file and argue review petition - On review of this Court's judgment dated 28.3.2017 passed in C.M.A.687/2017)

AND

CRIMINAL ORIGINAL PETITIONS NOS.138, 96, 121 TO 127, 132, 139, 167 AND 217 OF 2017, 4 OF 2018, 92 OF 2017, 152 OF 2016, 104 AND 214 OF 2017

(Non-compliance of Court's order)

AND

CRL. MISC. APPLICATIONS NOS.1002 AND 937 OF 2017

(Applications for impleadment)

AKHTER UMAR HAYAT LALAYKA and others---Appellants/Petitioners

Versus

MUSHTAQ AHMED SUKHAIRA and others ---Respondents

Intra Court Appeals Nos.4, 6, 8, 9, 18, 19, 21 to 23 of 2017 and 2 of 2018, Criminal Misc. Applications Nos.43 to 45 of 2018, Crl. Review Petitions Nos.42, 68 and 523 of 2017, Civil Misc. Application No.3347 of 2017 in Civil Review Petition No.Nil of 2017 In Civil Misc. Application No.687 of 2017, Criminal Original Petitions Nos.138, 96, 121 to 127, 132, 139, 167 and 217 of 2017, 4 of 2018, 92 of 2017, 152 of 2016, 104 and 214 of 2017 and Crl. Misc. Applications Nos.1002 and 937 of 2017, decided on 13th May, 2018.

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

----S. 8-A [since omitted]---Sindh Civil Servants Act (XIV of 1973), S. 9-A [since omitted]---Police officials---Out of turn promotion---Exception created in paragraph 111 read with paragraph 143 of the judgment titled "Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206)"---Scope---In the said judgment the Supreme Court declared concept of out of turn promotions as unconstitutional, however, in paragraph 111 of the Supreme Court observed that "the cases wherein 'out of turn promotion' was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court…They shall remain intact unless reviewed"---Held, that the word "review" used in the said paragraph had been used by the Supreme Court in its general meaning, whereby the Department/ Inspector General Police could also re-examine individual cases of personnel who were granted out of turn promotion---If word 'review' was taken to mean review by judicial authorities then such interpretation would be contrary to the judgment itself---When the very concept of out of turn promotion was declared to be unconstitutional in the said judgment then the exception created therein at paragraph 111 could not be said to be extended to in service employees whether they had any judicial verdict in their favour or not---Supreme Court by exercising its suo motu review jurisdiction held that the exception, created in paragraph 111 read with paragraph 143 of the judgment titled "Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206)", whereby protection was extended to the category of cases "wherein 'out of turn promotion' was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court", should be withdrawn---Supreme Court directed the Provincial Inspector General Police, the Provincial Home Secretary and the Secretary, Establishment Division, to comply with the present judgment, by fixing the seniority of all the police officers/officials who were given out of turn promotions along with their batch-mates, as if they were never given out of turn promotion.

Shahid Pervaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

(b) Constitution of Pakistan---

----Art. 188---Review before the Supreme Court---'Second review'---Second review was barred by law and no party could approach the Supreme Court for a second review.

(c) Constitution of Pakistan---

----Arts. 184(3), 187 & 188---Power of Supreme Court to revisit its earlier judgment---Scope---Supreme Court had absolute power to re-visit its earlier judgments/orders by invoking its suo motu jurisdiction under Arts. 184(3), 187 or 188 of the Constitution---Such power was not dependent upon an application of any party.

Khalid Iqbal v. Mirza Khan PLD 2015 SC 50 and Syed Shabbar Raza Rizvi v. Federation of Pakistan 2018 SCMR 514 ref.

Malik Muhammad Qayyum, Sr. Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.As.4 and 18/2017).

Khawaja Haris Ahmed, Sr. Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/Applicants/ Petitioners (in I.C.As.8, 9 and 17/2017).

Talat Farooq Sheikh, Advocate Supreme Court, Maqbool Hussain Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants/Applicants/Petitioners (in I.C.As.6, 21, 22 and 23/2017).

S. A. Mehmood Khan Sadozai, Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.A.19/2017).

Muhammad Ahsan Bhoon, Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.A.2/2018).

Nemo for Appellants/Applicants/Petitioners (in Crl.M.As.43 to 45/2018).

Shakeel-ur-Rehman Khan, A.G. Punjab and Waseem Mumtaz Malik, Addl. A.G. for Appellants/Applicants/Petitioners (in Crl. R.P.42/2017).

Qamar-uz-Zaman, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in C.R.P.523/2017).

Appellant/Applicant/Petitioner in person (in C.M.A.3347/2017).

Appellant/Applicant/Petitioner in person (in Crl.R.P.68/2017).

Talat Farooq Sheikh, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl. O.Ps.125, 126, 127, 139/2017 and 4/2018 and Crl. M.A.1002/2017).

M. Bashir Khan, Advocate Supreme Court for Appellant/Applicant/Petitioner (in Crl. O.P.132/2017).

Qausain Faisal, Advocate Supreme Court for Appellant/ Applicant/Petitioner (in Crl.O.P.217/2017).

Mushtaq Ahmed, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in Crl.O.Ps.121 to 124/2017).

Aziz Ahmed Malik, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in Crl.O.P.96/2017).

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl.O.Ps.92/2017 and 152/2016).

Muhammad Faiz Ahmed Cheema, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl. O.P.214/2017).

Malik Azmatullah Kasi, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl. O.P.167/2017).

Nemo for Appellants / Applicants / Petitioners (in Crl. O.P.104/2017 and Crl. M.A. 937/2017).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondent No.5 (in I.C.As. 4, 6, 8, 18, 21 and 23/2017).

Nemo for Respondents (in Crl. R.Ps. 42, 68 and 523/2017, C.M.A.3347/2017 and Crl.O.P.138/2017).

Syed Nayyar Abbas Rizvi, Addl. A.G.P., Shakeel-ur-Rehman Khan, A.G. Punjab, Saif-ul-Murtaza, AIG Legal (For IGP Punjab) and Rana M. Ashraf, SO (Police) Home Deptt. Punjab on Court's Notice.

2018 S C M R 1272

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

Syeda SAKINA RIAZ---Appellant

Versus

FEDERATION OF PAKISTAN and another---Respondents

Civil Appeal No. 1189 of 2017, decided on 1st June, 2018.

(On appeal against the judgment dated 13.03.2017 passed by the High Court of Sindh, Karachi in C.P. No. D-4291/2016)

University of Karachi Service Pension Statute, 1972---

----S. 26--- Employee of University of Karachi--- Entitlement of employee's widow to receive family pension---Minimum qualifying service---Claim of employee's widow for grant of family pension was denied for the reason that her husband had not put in the minimum qualifying service of ten years as envisaged under S. 26 of the University of Karachi Service Pension Statute, 1972---Legality---Right to claim pension was a right connected with the tenure of service which under the applicable pension rules had to be served by an employee in order to make him eligible for pension---Where a deceased employee had put in pensionable service, only then his family became entitled to pension---In order to claim pension, a minimum qualifying service was the threshold that had to be first crossed which would then entitle an employee or his family after his death to claim pension---Principle of completing minimum qualifying service was ingrained in every law that granted pension to the employees or after their death to their families---Said principle was based on 'quid pro quo', which mandated that an employee must put in minimum qualifying years of service before he became entitled to claim pensionary benefits---In the present case, admittedly the late husband of the appellant (widow) had put in only about five years of service, well short of rendering qualifying length of service to entitle her to family pension or any concession granted towards the quantum of pension---Appeal was dismissed accordingly.

Syed Fiaz Ahmed Shah, Advocate Supreme Court for Appellant.

Sohail Mahmood, DAG for Respondent No.1.

Shoaib M. Ashraf, Advocate Supreme Court for Respondent No.2.

2018 S C M R 1276

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Dr. AHMED ALI SHAH and others---Petitioners

Versus

Syed MEHMOOD AKHTAR NAQVI and others---Respondents

Civil Review Petitions Nos.242, 243 and 245 of 2012 in Const. Petition No.5/2012 and C.M.A. No.3446 of 2012 in C.R.P.Nil/2012 In Const. Petition No.5/2012 and Civil Review Petition No.311 of 2012 In C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A. 5113 of 2012 In C.R.P.Nil/2012 In Const. Petition No.5/2012 and Civil Review Petition No.317 of 2012 in C.M.A.2492/2012 and C.M.A.4089 of 2012 In Const. Petition No.5/2012 and C.M.A.3053 of 2012 in C.M.A.4089/2012 In Const. Petition No.5/2012 and C.M.A.4135 of 2012 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.4353 of 2012 In C.M.A.4089/2012 in Const. Petition No.5/2012 and Criminal Original Petition No.54 of 2013 in Const. Petition No.5/2012 and Criminal Original Petition No.55 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.65 of 2013 in C.M.A.4089/2012 In Const. Petition No.5/2012 and C.M.A.87 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.354 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.1217 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.1218 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.2097 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.2592 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.2146 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.66 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.67 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.68 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.85 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.86 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.2155 of 2014 in C.M.A.4089/2012 in Const. Petition No.5/2012 and C.M.A.2108 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and Civil Review Petition No.38 of 2013 in C.M.A.4089/2012 in Const. Petition No.5/2012 and Criminal Original Petition No.71 of 2012 in Const. Petition No.5/2012 and Criminal Original Petition No.82 of 2012 in Const. Petition No. 5/2012 and

Criminal Original Petition No.90 of 2012 in Const. Petition No.5/2012, decided on 2nd May, 2018.

(Against order dated 20.09.2012 followed by detailed judgment dated 17.10.2012 of this Court passed in Constitution Petition No.05 of 2012)

Constitution of Pakistan---

----Arts. 63(1)(c) & 188---Representation of the People Act (LXXXV of 1976), Ss. 78 & 82---Penal Code (XLV of 1860), Ss. 193, 196, 197, 198 & 199---Review of Supreme Court judgment---Members of National Assembly, Provincial Assemblies and Senate ('the petitioners') disqualified for failing to disclose their citizenship of foreign countries in their nomination papers and other documents filed with the competent authorities---Supreme Court by way of judgment under review directed the Election Commission to institute legal proceedings against such members under S. 82 of the Representation of the People Act, 1976 read with Ss. 193, 196, 197, 198 & 199, P.P.C. in accordance with law, and ordered them to refund all monetary benefits drawn by them for the period during which they occupied the public offices and had drawn their emoluments, etc from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks---Held, that at the time of the relevant elections no specific provision/column existed in the nomination papers that required the petitioners to disclose their foreign nationality/dual citizenship or to state details of the same---Record showed that there was no mens rea or intent on the part of the petitioners to defraud or deceive the authorities at the time of filing of nomination papers---At the time of submission of nomination papers, the petitioners genuinely thought that they were qualified to contest elections to the Parliament (Majlis-e-Shoora)/Provincial Assemblies/Senate and did not suffer from any legal or constitutional disqualification---Prima facie there was inadequate material on the record to merit a finding of guilt regarding corrupt practices in terms of S. 78 of the Representation of the People Act, 1976 or other offences under Pakistan Penal Code as had been held in the judgment under review---After their election the petitioners also took part in the legislative business during the legislative process, and performed the services that they were required to perform, therefore, it could not be lightly stated that they had unjustly been enriched or got ill gotten gains or received financial benefits by exercising fraud or deception---Furthermore the petitioners had been burdened with the liability and culpability without following due process provided by the Representation of the People Act, 1976---Directions given by the Supreme Court in the judgment under review in positive terms would not leave much scope for the Trial Court to inquire into the petitioners' guilt or otherwise and decide the cases independently---Such directions may become the basis for action against the petitioners which would undoubtedly prejudice their Constitutional rights---No sooner did the petitioners hear about the initiation of proceedings and the legal position as enunciated by the Supreme Court most of them tendered their resignations and approached the Supreme Court with such information---Supreme Court in such circumstances recalled the findings in the judgment under review that the petitioners appeared to be guilty of corrupt practices in terms of S. 78 of the Representation of the People Act, 1976 and the direction to the Election Commission to institute proceedings against them under S. 82 of the said Act read with Ss. 193, 196, 197, 198 & 199, P.P.C.---Supreme Court directed that any proceedings against the petitioners at whatever stage and any convictions whether or not implemented shall immediately and forthwith stand quashed, recalled and rendered null and void for all intents and purposes as if the same had never been initiated/passed/implemented; that the direction in the judgment under review to the extent of refund of monetary benefits drawn by the petitioners for the periods during which they occupied public offices and had drawn their emoluments from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks should be modified to the extent that each petitioner notwithstanding the amount actually received by him/her shall deposit a token sum of Rs.500,000/- within a period of 30 days from the date of present order with the Secretaries of the Senate of Pakistan, National Assembly and the Provincial Assemblies as the case may be, and that except the modifications made by present judgment, the judgment under review shall remain intact and in full force for all intents and purposes.

Mian Abdul Rauf, Advocate Supreme Court for Petitioners (in C.R.P.242/2012).

Wasim Sajjad, Senior Advocate Supreme Court/Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.R.P.243/2012).

Nemo for Petitioner (in C.R.P.245/2012 and C.M.A. 3446/2012 in C.R.P.Nil/2012).

M. Munir Paracha, Advocate Supreme Court along with Begum Shahnaz Sh., for Petitioner (in C.R.P.311/2012).

Nemo for Petitioner (in C.M.A.5113/2012).

Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.R.P.317/2012).

M. Munir Paracha, Advocate Supreme Court for Petitioner (in C.R.P.38/2013).

Petitioners in Person (in C.M.As.3053, 4135, 4353/2012, Crl.O.P.54, 55, 71, 82, 90/2012 and C.M.A.65, 87, 354, 1217, 1218, 2097, 2592, 66, 67, 68, 85 and 86/2013 and C.M.A.2155/2014).

Shoaib Shaheen, Advocate Supreme Court (For Dr. Aresh Kumar).

Makhdoom Ali Khan, Senior Advocate Supreme Court (For Murad Ali Shah).

Salman Akram Raja, Advocate Supreme Court (For Arif Aziz Sheikh C.M.A.1944/2013 and for Dr. Asim Hussain C.M.A.3581/2013).

Sardar M. Aslam, Advocate Supreme Court (For Dr. Tahir Jawad and Jamil Malik).

Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.M.A.2108/2013).

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court for Petitioner (in Crl.O.P.90/2012).

Petitioners in Person (in C.M.A.2618/2013).

Syed Rafaqat Hussain Shah, Advocate-on-Record.

Sohail Mehmood, DAG., Malik Mujtaba Ahmed, Addl, Director (Law) ECP and Mehmood Akhtar Naqvi, in person (in C.R.Ps.) for Respondents on Notice.

2018 S C M R 1305

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Faisal Arab, JJ

GOVERNMENT OF PAKISTAN through Secretary Revenue Division/CBR House, Islamabad and others---Appellants

Versus

MUHAMMAD JUNAID TALAT---Respondent

Civil Appeal No. 1950 of 2007, decided on 7th May, 2018.

(On appeal against the judgment dated 24.09.2007 passed by the High Court of Sindh, Karachi in Constitutional Petition No. D-2373/2006)

Income Tax Ordinance (XXXI of 1979)---

----S. 9---Reward Order dated 14-5-1974---"Definite information" with regard to tax evasion---Payment of 'reward' to informant---Scope---Respondent was the author of an article published in a daily newspaper wherein he mentioned issue of non-payment of income tax by seafarers of Pakistan discharging duty on foreign flagships---Pursuant to such article the income tax department raised a demand against 812 seafarers for the payment of income tax to the tune of Rs.86.606 million, which was followed by ex parte assessment orders---Respondent being the author of such article sought recovery of reward in his capacity as informer on the amount which led to recovery proceedings against the seafarers---Held, that a person could take benefit of the Reward Order only if he had supplied some definite information relating to a taxpayer who had evaded tax---Condition precedent for reward to informant was 'detection of evasion of tax', which must have taken place before the question of reward arose---Merely giving general information that tax was not being paid by a person on his otherwise taxable income would not ipso facto entitle the informant to claim a reward as non-payment of tax was not always a case of tax evasion---Merely drawing the attention of the tax department towards a particular person or a category of persons who had failed to pay tax on their incomes would not constitute 'definite information' falling within the ambit of 'tax evasion' as it was the evasion of tax that was key in granting of an award not failure to pay tax---Philosophy of awarding a reward was that if on the basis of some specific information the income of an assessee which he had concealed through manipulation or by adoption of some deceitful mechanism came to light through an informant, whereby tax liability of an assessee increased beyond his declared income or his declared loss stood reduced, only then such information would amount to detection of tax evasion qualifying the informant to claim reward not otherwise---Such a situation did not emerge in the present case, therefore, the respondent was not entitled to the reward---Appeal was allowed accordingly.

Regional Commissioner, Income Tax Companies II v. S. Sultan Ali Jeoffrey 1993 SCMR 266 ref.

Muhammad Habib Qureshi, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Ms. Sonia Anwar Rana, D.C. Income Tax for Appellants.

Respondent in person.

2018 S C M R 1310

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

HASHMAT MEDICAL AND DENTAL COLLEGE---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and others---Respondents

Civil Petition No. 766 of 2018, decided on 4th April, 2018.

(Against order dated 06.03.2018 passed by the Islamabad High Court, Islamabad passed in Writ Petition No. 855 of 2018)

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 11, 21 & 22---Non-affiliated private medical institution---Failure to meet the minimum standards of infrastructure facilities, availability of faculty and affiliation with hospitals---Registrar of the Pakistan Medical and Dental Council ('Council') informed the Court that neither the petitioner-college nor its affiliated hospitals met the required standards; that they were deficient in staff and did not possess the requisite facilities, and that the petitioner-college was not in a condition to impart any form of education let alone medical education to the students---Petitioner-college neither fulfilled the requirements nor met the minimum benchmarks of infrastructure facilities, affiliation with hospitals and availability of faculty as per requirements of the Council---Investigation report submitted by the Federal Investigation Agency (FIA) showed that the petitioner college had been charging excessive amounts of fees from the students for which no receipt was issued; that the petitioner college charged annual fee from its students in excess of the annual fee allowed by the Supreme Court for legitimate private medical colleges with the requisite facilities, registrations and affiliations from students; that the quality of education and educational facilities including teaching staff and hospital, general environment, classrooms and other related facilities were highly substandard; that the so-called affiliated hospitals had no facilities, their wards were found empty and some were even locked indicating that there were no patients, which was a prerequisite for a teaching hospital---Supreme Court observed that medical education needed strict and stringent regulation and monitoring by the Council; that it must be ensured that only those medical educational institutions which had all requisite facilities, equipment, paraphernalia, infrastructure, faculty and support staff together with affiliation with genuinely operating and functional hospitals, were allowed to function; that fake colleges which had been set up by unscrupulous and unprofessional commercial investors should be weeded out firmly, quickly and permanently, and that any institution that failed to meet the requirements and standards set by Council, after being given reasonable time to make up the deficiencies, needed to be shutdown with its registration cancelled and affiliation withdrawn---Supreme Court directed that FIA should lodge an FIR against the owners, sponsors and management of the petitioner-college and after sealing their records shall investigate the matter from all angles and take appropriate action in accordance with law; that management of the petitioner-college should in the first instance by way of a provisional step return all amounts in excess of Rs.850,000 per student per year received by it from the students whose names appeared in the report submitted by the FIA within fifteen days in addition to all other students from whom amounts in excess of Rs.850,000 per year per student have been recovered in the past; that the management shall within 15 days refund the entire amount received from each of the students who were granted admission but did not study for the whole year which would have entitled them to appear for the first professional MBBS examination; that the petitioner-college was restrained and prohibited from undertaking any admissions in the future and the Council shall issue appropriate orders for cancellation of its registration; that the Council shall immediately remove the petitioner-college from its website and publicize such fact through the print and electronic media with adequate prominence; that the Council shall decide the application of the petitioner-college for registration in accordance with law, in light of the inspection report already submitted with it---Petition for leave to appeal was dismissed accordingly.

M. Ahsan Bhoon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Hafiz Arfat Ahmed, Advocate Supreme Court and Dr. Waseem Hashmi, Registrar, PM&DC for Respondents Nos. 1-3.

Brig. M. Azhar, Registrar, RIPHA along with Shamshadullah Cheema, Advocate Supreme Court for Respondent No.2.

Dr. Babar Awan, Senior Advocate Supreme Court for Students.

Dr. Usman Anwar, Dir. FIA, Lahore, Sami ur Rehman Jami, Dy. Dir, FIA and Qaiser Masood, Additional Dir. (Law) FIA for FIA.

2018 S C M R 1319

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Sajjad Ali Shah, JJ

CIVIC CENTRES COMPANY (PVT.) LIMITED---Appellant

Versus

COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONE, ISLAMABAD---Respondent

Civil Appeals Nos. 145 to 148 of 2010, decided on 28th May, 2018.

(On appeal from the judgment dated 08.05.2009 of the Islamabad High Court, Islamabad passed in Tax Reference No. 46/02, Tax Appeal No. 53/02 and Tax Appeals Nos.33 and 39/03)

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

----Ss. 19(1), 19(2)(a), 22(a), 22(b) & 22(c)---Wealth Tax Act (XV of 1963), Ss. 2(1)(16) & 3---Rental income---"Income from business or profession"---"Income from house property"---Properties belonging to two State owned entities were transferred to a private limited company ('the appellant-company') owned by the Federal Government on directions of the Prime Minister Secretariat---Subsequently, the Prime Minister recalled his earlier decision and the appellant-company was directed to return the properties to their owners---Rental income of the subject properties during the period they were in the possession of the appellant-company was declared by the appellant in its income tax returns for the relevant tax years under the head "Income from business or profession" in terms of S. 22 of the erstwhile Income Tax Ordinance, 1979 ("the Ordinance") and income tax was paid on the rate prescribed for the said section---Tax department alleged that since the appellant-company was the owner of the properties it should have declared its rental income from the properties under the head "Income from house property" under S. 19 of the Ordinance, which attracted a higher income tax rate in comparison to S. 22---Tax department also issued notices to the appellant-company requiring it to the pay wealth tax for the subject properties---Contentions of appellant-company that it was not the owner of the subject properties, therefore, the rental income had been correctly declared under "Income from business or profession" in terms of S. 22 of the Ordinance, and that it was not liable to pay wealth tax for the subject properties---Validity---Admittedly, there was no document on record with regard to the sale, conveyance or acquisition of the properties by the appellant-company---Neither any sale/conveyance/transfer deed was executed in favour of the appellant-company nor any consideration was ever paid---Appellant-company had also returned the possession of the properties to the owners---Owner of a property could not be deprived of his property and it be bestowed on another through a Prime Minister's dictate; such concept was completely alien to the laws of the country---Moreover, neither the language of the Income Tax Ordinance, 1979 nor of the Wealth Tax Act, 1963 supported the contention of the tax department that the appellant-company was the owner of the subject properties---Tribunal had rightly decided the matter in favour of the appellant-company by finding that it was not the owner of the subject properties--- Appeals were allowed accordingly.

Nawab Sir Mir Osman Ali Khan v. C.W.T. 1986 I.T.R. 888 SC; B.D. Avari v. C.I.T. 1989 PTD 670 and Bachu Bai F.E. Dinshaw v. C.I.T. 1967 PTD 170 ref.

Khalid Anwar, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant (in all cases).

Muhammad Habib Qureshi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent (in all cases).

2018 S C M R 1328

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

COMMISSIONER OF INLAND REVENUE, SIALKOT and others---Petitioners

Versus

Messrs ALLAH DIN STEEL AND ROLLING MILLS and others---Respondents

Civil Petitions for Leave to Appeals Nos.2370-L, 2375-L, 2425-L, 2442-L to 2445-L, 2453-L to 2455-L, 2466-L, 2467-L, 2478-L to 2481-L, 2496-L, 2504-L, 2505-L, 2511-¬L to 2515-L, 2521-L to 2527-L, 2541-L to 2549-L, 2551-L to 2557-L, 2567-L to 2580-L, 2584-L, 2586-L, 2587-L to 2591-L, 2597-L to 2599-L, 2638-L to 2648-L, 2657-L to 2708-L, 2711-L to 2717-L, 2725-L to 2732-L, 2736-L to 2744-L, 2749-L to 2769-L, 2777-L, 2779-L to 2806-L, 2814-L to 2826-L, 2835-L, 2844-L, 2856-L to 2865-L, 2873-L to 2879-L, 2888-L to 2916-L, 2921-L to 2949-L, 2972-L to 2983-L, 2985-L to 3055-L, 3059-L to 3068-L, 3071-L, 3084-L, 3085-L, 3136-L to 3145-L, 3153-L, 3154¬-L, 3180-L to 3185-L, 3201-L to 3204-L, 3251-L to 3254, 3322-L to 3333-L, 3345-L, 3357-L to 3360-L of 2017, 3-L to 7-L, 9-L, 10-L, 33-L to 35-L, 39-L, 40-L, 197-L to 199-L and 226-L of 2018, decided on 13th March, 2018.

(Against judgments dated 18.07.2017 of Lahore High Court, Lahore passed in Infra Court Appeals Nos.711/2017, 845/2017, 453/2017, 1084/2017, 1087/2017, 968/2017, 1197/2017, 507/2017, 780/2017, 1154/2017, 1026/2017, 880/2017, 727/2017, 798/2017, 1055/2017, 397/2017, 604/2017, 811/2014 603/2017, 894/2017, 790/2017, 629/2017, 426/2017, 996/2017, 732/20014, 545/2017, 748/2017, 768/2017, 823/2017, 578/2017, 926/2017, 481/2017, 1249/2017, 1160/2017, 1253/2017, 749/2017, 1209/2017, 1107/2017. 1264/2017, 546/2017, 552/2017, 914/2017, 472/2017, 615/2017, 557/2017, 618/2017, 864/2017, 929/2017, 934/2017, 1110/2017, 1263/2017, 824/2017, 853/2017, 1000/2017, 779/2017, 731/2017, 814/2017. 821/2017, 869/2017, 889/2017, 898/2017, 900/2017, 904/2017. 916/2017, 959/2017, 817/2017, . 999/2017, 1011/2017, 1048/2017, 1072/2017, 1139/2017, 1140/2017, 1108/2017, 689/2017, 850/2017, 887/2017, 784/20.17, 750/2017, 1025/2017, 1027/2017, 1149/2017, 966/2017, 691/2017, 936/2017, 950/2017 930/2017, 868/2017, 693/2017, 873/2017, 1208/2017, 1158/2017, 820/2017, 957/2017, 1007/2017, 1206/2017, 635/2017, 883/2017, 1065/2017, 1142/2017, 791/2017, 994/2017, 1174/2017, 84/2017, 870/2017, 872/2017, 963/2017, 932/2017, 1182/2017, 833/2017, 753/2017,, 752/2017, 699/2017, 698/2017, 1022/2017, 992/2017, 878/2017, 730/2017, 960/2017, 1207/2017, 953/2017, 694/2017, 1003/2017, 933/2017, 923/2017, 974/2017, 747/2017, 897/2017, 733/2017, 695/2017, 961/2017, 1258/2017, 874/2017, 839/2017, 1256/2017, 848/2017, 877/2017, 1204/2017, 1060/2017, 1001/2017, 490/2017, 1143/2017, 1366/2017, 1098/2017, 1195/2017, 946/2017, 624/2017, 804/2017, 787/2017, 1014/2017, 1094/2017, 918/2017, 1056/2017, 766/2017, 815/2017, 937/2017, 1103/2017, 1063/2017, 1064/2017, 1059/2017, 1096/2017, 924/2017, 881/2017, 882/2017, 793/2017, 548/2017, 395/2017, 544/2017, 1016/2017, 925/2017, 865/2017, 782/2017, 899/2017, 866/2017, 902/2017, 844/2017, 838/2017, 892/2017, 1262/2017, 954/2017, 859/2017 in W.P. No. 342/2017, I.C.As. Nos. 852/2017, 896/2017, 915/2017, 938/2017, 754/2017, 875/2017, 1103/2017, 554/2017, 981/2017, 726/2017, 888/2017, 1156/2017, 978/2017, 818/2017, 1339/2017, 1202/2017, 729/2017, 466/2017, 551/2017, 1138/2017, 795/2017, 1147/2017, 690/2017, 1102/2017, 411/2017, 541/2017, 661/2017, 501/2017, 628/2017, 846/201. 1004/2017, 410/2017, 854/2017, 826/2017, 558/2017, 987/2017, 1005/2017, 855/2017, 1046/2017, 973/2017, 1043/2017, 819/2017, 1193/2017, 901/2017, 1020/2017, 951/2017, 862/2017, 922/2017, 885/2017, 697/2017, 778/2017, 1158/2017, 783/2017, 807/2017, 1259/2017, 990/2017, 1017/2017, 802/2017, 707/2017, 448/2017, 803/2017, 687/2017, 943/2017, 1105/2017, 630/2017, 901/2017, 1020/2017, 951/2017, 862/2017, 922/2017, 813/2017, 847/2017, 849/2017, 1058/2017, 1070/2017, 1095/2017, 1099/2017, 1106/2017, 1057/2017, 1168/2017, 725/2017, 734/2017, 773/2017, 816/2017, 832/2017, 835/2017, 965/2017, 919/2017, 1148/2017, 1170/2017, 1181/2017, 911/2017, 822/2017, 1252/2017, 340/2017, 476/2017, 626/2017, 547/2017, 342/2017, 680/2017, 917/2017, 958/2017, 471/2017, 1203/2017, 809/2017, 632/2017, 876/2017, 1260/2017, 692/2017, 1015/2017, 542/2017, 462/2017, 549/2017, 1024/2017, 831/2017, 797/2017, 977/2017, 1006/2017, 550/2017, 1044/2017, 1165/2017, 837/2017, 935/2017, 941/2017, 944/2017, 1047/2017, 1068/2017, 1111/2017, 1141/2017, 1167/2017, 1173/2017, 1200/2017, 1100/2017, 1002/2017, 970/2017, 928/2017, 1104/2017, 895/2017, 142/2017, 1093/2017, 674/2017, 620/2017, 769/2017, 1019/2017, 555/2017, 1047/2017, 1113/2017, 940/2017, 828/2017, 969/2017, 1060/2017, 1145/2017, 843/2017, 905/2017, 1146/2017, 1133/2017, 1238/2017, 810/2017, 812/2017, 1023/2017, 1192/2017, 1255/2017, 348/2017, 634/2017, 638/2017, 699/2017, 1126/2017, 1130/2017, 1237/2017, 781/2017, 886/2017, 891/2017, 952/2017, 983/2017, 473/2017, 627/2017, 1328/2017, 1331/2017, 911/2017, 945/2017, 984/2017, 986/2017, 1010/2017, 1054/2017, 1166/2017, 964/2017, 972/2017, 343/2017, 857/2017, 1198/2017, 813/2017, 927/2017, 452/2017, 1169/2017, 785/2017, 553/2017, 1053/2017, 477/2017, 971/2017, 786/2017, 988/2017, 480/2017 1263/2017, 540/2017, 1205/2017, 341/2017, 913/2017, 956/2017, 1152/2017, 1157/2017, 1197/2017, 801/2017, 806/2017, 502/2017 and dated 09.01.2017 passed in Writ Petitions Nos.1462/2016, 1486/2016, 14360/2016)

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 214C---Sales Tax Act (VII of 1990), S. 72B---Federal Excise Act (VII of 2005), S. 42B---Audit Policy, 2015---Random ballot for selection of taxpayers for audit---Non-framing of rules for selecting taxpayers for audit---Question as to whether there was any discrimination or arbitrariness in the process of selection for audit in the absence of specific rules, and whether a timeframe should be placed for purpose of completion of audit for a tax year; held, that mere selection for audit did not cause an actionable injury to the taxpayer---Once a taxpayer was selected for audit and till such audit was completed the taxpayer was provided ample and multiple opportunities at every step to defend his position, support his returns and offer explanations for the information provided and entries made in the tax returns---Even if a discrepancy was discovered taxpayer was provided yet another opportunity to explain his position before his assessment was revised---Real purpose of conducting audit and laying parameters for the same was to ensure that uniform standards were put in place in the interest of consistency in the process of audit, the manner in which the audit was to be conducted, and the standards which the audit officers were required to follow and consistently apply---Process of balloting for the subject year was conducted from amongst a pool of persons objectively determined by the Federal Board of Revenue ("Board") in accordance with a transparent policy, uniformly applied in accordance with law---Such process was undertaken through an automated computer aided selection process---Further, in order to conduct the audit, an Audit Policy for the year 2015 was framed to regulate the process of audit, rationalize it, provide guidelines and streamline the process---Said Audit Policy provided adequate and efficient guidelines regarding the scope, parameters and methodology to be adopted and followed---No elaborate or specific rules were thus required to be framed in the present case as it was a pure and simple computer aided random selection---Nothing had been placed on record that even remotely indicated that there was any bias, arbitrariness or partiality on part of the Board or that certain sets or classes of taxpayers were targeted to the exclusion of others---Statutory framework together with the overarching umbrella of constitutional guarantees furnished adequate and sufficient safeguards to the taxpayer where there was a possibility of overstepping by the tax authorities---While the power of the Board to conduct an audit could not be denied, it was equally important that a taxpayer should not be allowed to be pestered and dragged indefinitely through an unending process of scrutiny and audit of his accounts---Audit of a selected taxpayer must be completed within a reasonable time, which fact was implicit in the relevant statutes and had explicitly been spelt out in the Audit Policy for the relevant year---Issues and problems relating to delays in conclusion of the audits stemmed from shortage of capacity and non-availability of adequately trained officers to conduct and complete audit in a professional and efficient manner within a reasonable time---Supreme Court directed that the timeframe mentioned in the relevant policy guidelines namely completion of the audit within the same financial year in which a taxpayer was selected for audit was fair and reasonable, however, if delays were inevitable, beyond the control of the Tax department and did not occur on account of any act or omission on the part of the taxation officers and happened on account of litigation and grant of stay orders, the audit officer may seek extension of audit after recording reasons in writing for seeking such extension explaining reasons for his inability to complete the audit within the stipulated time; that the Board may on consideration of such reasons grant reasonable extension in order to enable completion of the audit, and that extension if granted should be supported by due application of mind and appropriate reasoning on the part of the Board---Petitions for leave to appeal were dismissed accordingly and leave was refused.

(b) Interpretation of statutes---

----Where the letter of law was clear, unambiguous and explicit there was no room to interpret it in a manner that expanded or shrunk its scope, meaning and tenor---Only exception to such rule was where mala fides and blatant discrimination was evident.

Ibrar Ahmed, Advocate Supreme Court for Petitioners (in C.Ps. Nos.2370, 2375, 2425-L, 3251 and 3252-L of 2017).

Irshad Ullah Chattha, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2442-2445, 2453, 2454, 2455, 2466, 2467, 2476, 2479, 2480, 2481, 2496, 2504, 2505, 2521, 2527, 2546-2547, 2586, 2587, 2588, 2598, 2599, 2777-L/2017, 197, 198 and 199-L of 2018).

Ch. M. Zafar Iqbal, Advocate Supreme Court and Dr. Ishtiaq Ahmed, Commissioner, IR, RTO, Lahore for Petitioners (in C.Ps. Nos.2511-2515, 2567, 2568, 2584, 2589, 2590, 2591, 2638-2548, 2657-2708, 2711-2717, 2725-2732, 2736-2744, 2749-2758-L/2017, 2779-2806, 2814-2826, 2835-2844, 2856-2865, 2874-2879-L/2017, 2921-2949, 2972-2983, 3059-3068, 3085, 3136-3145, 3153, 3154, 3180-3185, 3201-3204, 3322-3333, 3345, 3357-3360-L/2017, 3-7, 9, 10, 33, 34, 35, 39, 40-L/2018 and 226-L of 2018).

Mrs. Kausar Parveen, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2541-2544, 2548, 2549, 2551-2557, 2569-2579, 2584-L/2017, 2759-2769-L/2017, 2873, 2888, 2889-2916, 2985-3055, 3071 and 3084-L of 2017).

Sardar Ahmed Jamal Sukhera, Advocate Supreme Court for Petitioners (in C.P. No. 2597-L of 2017).

Munawar us Salam, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3253 and 3254 of 2017).

Ch. M. Zafar Iqbal, Advocate Supreme Court and Dr. Ishtiaq Ahmed, Commissioner IR, Lahore for Respondents (in C.Ps. Nos. 3253 and 3254 of 2017).

Nemo for Respondents (in all other cases).

2018 S C M R 1367

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Sajjad Ali Shah, JJ

EJAZ AHMED SANDHU and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election, Commissioner, Islamabad and others---Respondents

Civil Petition No. 4682 of 2017, decided on 31st May, 2015.

(Against the judgment dated 02.11.2017 of the Lahore High Court, Lahore passed in Intra Court Appeal No. 1839 of 2015)

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

----R. 78---Constitution of Pakistan, Art. 218(3)---Powers of Election Commission---Scope---Ballot papers from a polling station snatched from the Presiding officer---Order for re-poll at polling station---Presiding Officer, who was an official designated by the Election Commission to perform duties in connection with elections, was set upon by some assailants and the ballot papers of the subject polling station were taken from him at gunpoint, which undoubtedly was a very serious matter and one which had affected the sanctity of the elections---Presiding Officer had himself lodged the FIR for the incident---To re-establish the sanctity of the ballot and the credibility of the elections the Election Commission ordered a re-poll of the voters registered at the said polling station at which the ballot papers were stolen---Election Commission exercised its discretion to order re-poll, which was justifiable in the facts and circumstances of the case---Election Commission was a constitutional body and unless it was shown that the jurisdiction and discretion exercised by it was illegal, mala fide, manifestly arbitrary or unjustifiable, its working and decisions should not be interfered with---Supreme Court directed that in case the re-poll for the subject polling station, as ordered by the Election Commission, had not already taken place the Election Commission should make arrangements to do the same---Petition for leave to appeal was dismissed accordingly.

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

Nemo for Respondents.

2018 S C M R 1372

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

IMRAN ALI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 298 of 2018, decided on 12th June, 2018.

(Against the judgment dated 20.03.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 167868/J of 2018 and Capital Sentence Reference No. 1/T of 2018)

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

----Ss. 364-A, 376, 377, 302(b) & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting a person under the age of fourteen, rape, sodomy, qatl-i-amd, causing disappearance of evidence of offence, act of terrorism---Voluntary and true confession of guilt---Accused allegedly kidnapped a minor girl, where after he subjected her to sodomy and rape, before murdering her---When the charge was framed by the Trial Court against the accused he had pleaded guilty as charged and on that occasion he recorded a detailed confessional statement wherein he had admitted almost every aspect of the case alleged against him---Despite pleading guilty to the charge and making of a confessional statement the Trial Court decided to proceed with recording of evidence and during the trial statements of as many as thirty two (32) prosecution witnesses were recorded and many other pieces of evidence were brought on the record---Accused, in his statement recorded under S. 342, Cr.P.C. had once again admitted almost all the vital pieces of evidence produced by the prosecution against him as correct and had once again admitted his guilt unreservedly---Counsel for the accused had only prayed for some lenience to be shown to the accused in the matter of his sentence and no argument had been advanced before the Trial Court challenging the merits of the prosecution's case---In his memorandum of appeal filed by the accused before the High Court once again only lenience in the matter of sentence had been prayed for by the accused without questioning his convictions recorded by the Trial Court---Only during arguments before the High Court the counsel for the accused had maintained that admission of guilt by the accused before the Trial Court was a result of coercion but during such arguments he had not provided any detail regarding coercion applied against the accused so as to extract a confession---Apart from the guilty plea and confession of accused the CCTV footages, photographs, DNA tests and the medical evidence brought on record proved that the confession made by the accused was not only voluntary but also true---Guilt of the accused had been proved to the hilt---Petition for leave to appeal was dismissed in circumstances and leave was refused.

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

----Ss. 364-A, 376, 377, 302(b) & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting a person under the age of fourteen, rape, sodomy, qatl-i-amd, causing disappearance of evidence of offence, act of terrorism---Death sentence, confirmation of---Accused allegedly kidnapped a minor girl, where after he subjected her to sodomy and rape, before murdering her---Accused was sentenced to death by the Trial Court, which sentence was upheld by the High Court---Crimes committed by the accused were absolutely horrendous and barbaric and the same had been committed with a minor and innocent girl aged about 7/8 years---Accused had not only deceitfully kidnapped the victim but also brutalized her by committing sodomy and rape with her and then ultimately killed her mercilessly---In his pleading guilty to the charge as well as in his statement recorded under S. 342, Cr.P.C. the accused had admitted committing similar offences with eight other minor victims and in such backdrop he did not deserve any sympathy in the matter of death sentence awarded to him---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Ms. Sarwat Nawaz, Advocate Supreme Court for Petitioner.

Complainant in person.

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

2018 S C M R 1375

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

FARRUKH SHAHZAD---Petitioner

Versus

COMMISSIONER INLAND REVENUE (LEGAL) RTO, RAWALPINDI and others---Respondents

Civil Petition No. 945 of 2018, decided on 10th April, 2018.

(Against the order dated 24.01.2018 passed by the Lahore High Court, Rawalpindi in I.T.R. No. 20 of 2017)

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 37(1)(A)---Capital gains tax on sale of immovable property---Zero percent capital gains tax---Contention of tax payer/petitioner that by virtue of S. 37(1)(A) of the Income Tax Ordinance, 2001 the petitioner was not liable to pay Capital gains tax as the subject property was purchased in the year 2008 and sold in the year 2013---Validity---Section 37(1)(A) read with Division VIII of Part 1 of the First Schedule to the Income Tax Ordinance, 2001 provided that where holding period of immovable property was more than two years, the rate of capital gains shall be zero percent---Tax department however, found that the petitioner was engaged in the real estate business for a number of years before 2014 which was the year the petitioner claimed that he started his business of real estate---Tax department relied upon the material (which was not rebutted) indicating that the petitioner had been engaged in the real estate business for many years before 2014---Consequently, it was correctly held that the benefit of zero percent capital gains tax was not available to the petitioner on the sale and purchase of property in the absence of reliable material necessary to avail the benefit of S. 37(1)(A)---Petition for leave to appeal was dismissed accordingly.

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss. 18 & 111(1)(b)---Amendment of assessment by addition to accumulative wealth of tax payer---Contention of tax-payer/petitioner that by virtue of S. 111(1)(b) of the Income Tax Ordinance, 2001 there was no justification for adding Rs. 60 million in the accumulative wealth of the petitioner for the year 2013; that S. 111(2) of the Ordinance only permitted inclusion of the amounts mentioned in subsection (1) of S. 111 in the person's income chargeable to tax, in the tax year to which such amount related; that the petitioner filed his return for the first time in 2013, as such, the amount of wealth shown for the year 2012 amounting to Rs.60 million could not be taxed in terms of S. 111(2) of the Ordinance by treating the same as an investment for the tax year 2013---Validity---Addition of Rs.60 million was made in the taxable income of the petitioner under S. 111(1)(b) of the Income Tax Ordinance, 2001 on account of the petitioner's failure to furnish material in support of his defence during reconciliation proceedings---Said provision stipulated that where a person failed to offer a satisfactory explanation about the nature and source of the investment, the value of the investment shall be included in the person's income chargeable to tax to the extent it is not adequately explained---Record indicated that the petitioner had shown his net wealth as of 30-06-2013 to be Rs.64,346,112, however, the department was not satisfied with the veracity of the return and called upon him through show cause notice to explain net wealth amounting to Rs.60,360,912 as on 30-06-2012 which had remained unexplained---Although petitioner submitted his reply but the same was neither satisfactory nor did it substantiate his source of investment---Petitioner had all along taken the stance that he had started his real estate business in the year 2014 and as such he could not be assessed for the year 2013---Petitioner was unable to explain the accretion of his net wealth as on 30-06-2012---Petitioner was unable to refer to any material that may even remotely explain such accretion---Findings of the subordinate fora that the said accretion was chargeable to tax for the year 2013, thus, did not suffer from any error of interpretation or application of the relevant provisions of law---Petition for leave to appeal was dismissed accordingly.

Hafiz Muhammad Idrees, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

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

2018 S C M R 1380

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Mazhar Alam Khan Miankhel, JJ

JAVED IQBAL and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 403 of 2016, decided on 26th February, 2018.

(Against the judgment of the Lahore High Court, Lahore dated 14.04.2016 passed in Crl. Appeal No. 1466 of 2014 and Crl. Appeal No.1734 of 2014)

Penal Code (XLV of 1860)---

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Reappraisal of evidence---Complainant alleged that his daughter (victim) left the house to go to a madrassah (religious school) for studies, and on the way the accused persons picked her up and took her to another village to rape her---Father of the victim/complainant neither in the FIR nor before the Trial Court stated that he went to the madrassah to inquire as to where his daughter was and why she had not returned to her home---Such conduct of the complainant seemed quite unnatural---Story put forth by the complainant in the FIR and before the Trial Court seemed improbable because as per his own case, there were two villages, and crops and canal banks situated in between his home and place of occurrence---In such circumstances, it did not appeal to mind as to how the complainant reached at the exact place of occurrence in a short period of time when the accused persons were allegedly committing zina with the victim---Victim admitted before the Trial Court that the street from where she was abducted by the accused persons was a thoroughfare, and that in between place of abduction and place where rape was committed, there were two villages and some populated area---In such circumstances, the story of victim's abduction on a motorcycle did not appeal to common sense, particularly when she herself stated before the Trial Court that she raised hue and cry at the time of her abduction---Moreover statement of victim before the Trial Court was replete with improvements/contradictions---Probable time of rape as mentioned in medical report of victim did not coincide with the time of occurrence as alleged by the victim---Shalwar of the victim which she was wearing at the time of occurrence was neither produced before the investigating agency nor before the doctor and the doctor had not given any opinion about the same having any stain of blood or semen---Prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Accused persons were acquitted in circumstances---Appeal was allowed accordingly.

Shahid Azeem, Advocate Supreme Court for Petitioners.

Ch. Muhammad Sarwar Sidhu, Additional P.-G. Punjab for the State.

2018 S C M R 1385

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, ACJ, Gulzar Ahmed, Sh. Azmat Saeed, Mushir Alam and Umar Ata Bandial, JJ

CH. IFTIKHAR AHMED, I.-G., ISLAMABAD and others---Appellants

Versus

The STATE---Respondent

Intra Court Appeals Nos. 1 to 5 of 2007 in S.M.C. No. 1 of 2007, decided on 15th May, 2018.

(On appeal against order dated 01.11.2007, passed by this Court in S.M.C. No. 1 of 2007)

(a) Appeal---

----Appeal was continuation of the original proceedings.

(b) Appeal---

----Party could not set up a new case altogether in appeal which it had not pleaded in the original proceedings.

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Unconditional apology tendered by alleged contemnor, acceptance of---Principles---Where an apology was tendered it would not automatically purge the contemnor from contempt and may not necessarily be accepted unless the Court from surrounding circumstances was satisfied about its bona fides---Acceptance or rejection of apology, therefore, depended upon the volume and nature of contempt allegedly committed---Bona fades of the contemnor and satisfaction of the Court about genuineness of the apology being tendered were the main factors to be considered---Fundamentals for acceptance of apology were that the apology must be offered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of the proceedings; that the apology must be unconditional, unreserved and unqualified; that the apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality, and that the contemnor should not endeavor to justify his conduct.

Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Unconditional apology tendered by alleged contemnor, acceptance of---Principles---Apology not sincere and not tendered at the earliest stage of contempt proceedings---Manhandling of Chief Justice of the Supreme Court---Reference had been sent against the then Chief Justice of the Supreme Court under Art. 209 of the Constitution to the Supreme Judicial Council (the Council)---Chief Justice as a mark of protest did not use the official vehicle made available for taking him to the Supreme Court building for appearance before the Council, and walked out of his residence---When the Chief Justice started walking on foot, the police personnel in the presence of accused persons allegedly tried to prevent him from proceeding on foot and in doing so some police personnel physically stopped him and tried to push him into the official car---Accused persons submitted their unconditional apologies for the incident but were still found guilty of Contempt of Court and awarded sentences of imprisonment---Contention of accused persons that in view of their unconditional apologies, the Court could have taken a lenient view and discharged them from the contempt proceedings---Validity---Accused contemnors did not submit any unconditional apologies at the outset, but only submitted the same after a few dates of hearing when charge had been framed against them---Perusal of unconditional apologies tendered by some of the accused showed that they were stereotype and some of the words appearing in those had been mis-spelt and none of them cared or bothered to correct them and it showed there was no application of mind by accused persons---Such unconditional apologies seemed to have been submitted in post haste after the charge had been framed and there did not seem to be any sincere and genuine remorse rather they appeared to be half-hearted merely to fill up the formality---Some of the accused persons had even tried to justify their conduct in their apologies which had become cause of contempt proceeding---Gravity of the conduct of the accused persons was also to be seriously taken note of in that they had physically roughed up, manhandled, pushed, bundled and physically forced the Chief Justice of the Supreme Court, the head of the highest judicial forum of the country, to sit in a car---Holder of highest judicial office of the country was restrained physically in the eyes of the public and also in the presence of print and electronic media---Such incident could not, by any means, be considered a minor incident which could be let off by submission of unconditional apology rather such conduct required visitation by exemplary punishments for the conduct of the accused persons as it had jolted the very edifice of the judicature, as provided in the Constitution, and seriously undermined and brought the authority of the Court or administration of justice into disrespect, disrepute and interfered with, obstructed, interrupted and prejudiced the process of law and due course of judicial proceedings---Accused persons had already been dealt quite leniently in terms of quantum of their sentences of imprisonment---Supreme Court directed that other than those accused persons sentenced to imprisonment till rising of the Court, the other accused were to be taken into custody and lodged in prison to serve out their respective sentences---Intra-court appeals were dismissed accordingly.

Dr. Khalid Ranjha, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant No.1 (in I.C.As. Nos. 1 - 2).

Abdul Shakoor Paracha, Advocate Supreme Court for Appellant No.2 (in I.C.A. No. 1).

Mian Liaquat Ali, Advocate Supreme Court for Appellant No.2 (in I.C.A. No. 2).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in I.C.A. No.3).

Sardar Muhammad Aslam, Advocate Supreme Court for Appellants (in I.C.As. Nos. 4 - 5).

Sajid Ilyas Bhatti, Additional Attorney-General for the State.

2018 S C M R 1397

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

The STATE/ANTI-NARCOTICS FORCE---Appellant

Versus

PARVEZ HASSAN HARAVI and another---Respondents

Criminal Appeal No. 35-K of 2016, decided on 4th May, 2018.

(Against the judgment dated 16.06.2016 of the High Court of Sindh, Karachi passed in Crl. Appeal No. 7 of 2016)

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

----S. 40---Forfeiture of assets of person convicted abroad---Property purchased through drug money---Proof---Property sought to be forfeited by the Anti-Narcotics Force (ANF)/appellant was in the name of ex-wife of the convict---Anti-Narcotics Force claimed that the property had been purchased by the convict with the money he acquired through trafficking in narcotics substances, and that since he had been convicted by a Court in a foreign country on the charge of attempting to smuggle narcotics, the property was liable to be confiscated under S. 40 of the Control of Narcotic Substances Act, 1997---Held, that under the Control of Narcotic Substances Act, 1997 only those assets of a convict could be forfeited which had been derived, obtained or acquired through his illicit involvement in narcotics trade---Even in case of a foreign conviction, it had to be shown that the acquisition of the assets was through illicit involvement of the convict in narcotics---In the present case, the Anti-Narcotics Force far from showing that the subject property had been derived or generated through any act or omission relating to narcotics, had not been able to show that the same had ever been purchased by the convict, or that he had in any manner contributed towards its purchase---Subject property admittedly was in the name of ex-wife of convict, having been purchased by her for a certain sale consideration, through a registered sale deed duly executed and registered---Said sale deed was exclusively in favour of ex-wife, and the same did not, in any manner, refers to the convict---Payment of the entire sale consideration amount was also shown to have been made to the seller by the ex-wife---Investigation officer of the Anti-Narcotics Force had admitted during his cross examination that neither was there any evidence that the property was purchased from drug money, except the conviction of the convict in a foreign country, nor was there any reasonable suspicion, or any proof that the property was purchased by the convict from drug money---In such circumstances, there was absolutely no justification to allow confiscation of the subject property, merely for the reason that the same was purchased by the ex-wife, while she was wedded to the convict, and that too some 8 years before his arrest and about 13 years before his conviction---Appeal filed by Anti-Narcotics Force was dismissed accordingly.

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

----S. 40---Constitution of Pakistan, Art. 12---Forfeiture of assets of person convicted abroad---Subject asset purchased before promulgation of Control of Narcotics Substances Act, 1997---Property sought to be forfeited by the Anti-Narcotics Force (ANF)/appellant was in the name of ex-wife of the convict---Anti-Narcotics Force claimed that the property had been purchased by the convict with the money he acquired through trafficking in narcotics substances, and that since he had been convicted by a Court in a foreign country on the charge of attempting to smuggle narcotics, the property was liable to be confiscated under S. 40 of the Control of Narcotic Substances Act, 1997---Held, that provisions of S. 40 of the Control of Narcotic Substances Act, 1997, which Act was promulgated on 11-7-1997, could not be invoked for the forfeiture of the property purchased on 2-2-1987, when there was no provision for forfeiture of a property purchased by someone who had been convicted for narcotics related offence by a foreign Court, as the same would be violative of the provisions of Art. 12 of the Constitution---Provisions of S. 40 of the Control of Narcotic Substances Act, 1997 could have been invoked and applied in respect of such purchase, only if the application of the said provisions would have expressly been made applicable---Appeal filed by Anti-Narcotics Force was dismissed accordingly.

Raja Inam Ameen Minhas, Special Prosecutor, ANF, Ch. Ehtasham ul Haq, Special Prosecutor, ANF and Tariq, Dy. Director for Appellant.

M. Akram Sh., Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.2.

2018 S C M R 1405

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and others---Petitioners

Versus

TANVEER SAJID and others---Respondents

Civil Petitions Nos. 4828/2017, 2509/2016, 3395/2016 and 107-L/2017 and C.M.As. Nos. 5346/2016 and 1257/2017 in C.P. No. 2509/2016 and C.M.A. No.7110/2016 in C.P. No.3395/2016 and C.M.A. No. 129-L/2017 in C.P. No. 107-L of 2017, decided on 7th March, 2018.

(Against the judgment dated 23.10.2017/22.6.2016/ 28.9.2016/ 29.11.2016 of the Lahore High Court, Lahore/Rawalpindi Bench, Rawalpindi passed in W.P. No.6828/2017, I.C.A. No. 56/2016, W.P. No. 1863/2016 and W.P. No. 13626/2014)

Civil service---

----Daily wagers/contract employees of Board of Intermediate and Secondary Education ("the Board")---Regularization in service---Respondent-employees had been working in the establishment of the Board for long period of time ranging between 3 to 12 years, on contract basis---Contracts of said employees provided that they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days; held, that motive behind such artificial break was to avoid regularization of respondents' services on the pretext that they were not continuously in service---Since the respondents were in service for a long time, it clearly showed that the posts they were occupying were permanent in nature and not casual or temporary---Services of respondents were not only required but also beneficial to the Board and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities---High Court had rightly directed the Board to regularize services of respondents---Supreme Court deprecated the practice of keeping employees on temporary basis for long periods of time without confirming or regularizing their services---Petition for leave to appeal was dismissed and leave was refused.

Habibullah v. Government of the Punjab PLD 1980 Lah. 37; Pakistan v. Public at Large PLD 1987 SC 304; Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101; Abdul Sattar v. Sui Northern Gas Pipelines Limited 2001 SCMR 1935; Ikram Bari v. National Bank of Pakistan 2005 SCMR 110; Ejaz Akbar Kasi v. Ministry of Information and Broadcasting PLD 2011 SC 22 and Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257 ref.

Mubeen-ud-Din Qazi, Advocate Supreme Court for Petitioners (in C.P. 4828 of 2017).

M. Siddique Awan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. 2509 and 3395 of 2016).

Mehboob Azhar Sheikh, Advocate Supreme Court for Petitioners (in C.P. 107-L of 2017).

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondents (in C.P. 4828 of 2017).

Tanvir Iqbal, Advocate Supreme Court for Respondents (in C.P. No. 2509 of 2016).

M. Bashir Khan, Advocate Supreme Court for Respondents (in C.P. 3395 of 2016).

Sardar Akbar Dogar, Advocate Supreme Court for Respondents (in C.P. 107-L of 2017).

2018 S C M R 1411

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Sajjad Ali Shah, JJ

KHAN MUHAMMAD---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN QUETTA and others---Respondents

Civil Petition No.2812 of 2017, decided on 22nd May, 2018.

(Against the judgment dated 17.7.2017 of the Balochistan Service Tribunal, Quetta passed in S.A.No.238/2017).

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

----S. 10---Balochistan Government Rules of Business, 2012, Rr. 6(1) & 8(1)(c)---Balochistan Government Servants (Conduct) Rules, 1979, R. 21---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---Posting and transfer---Notification empowering Provincial Minister to post and transfer civil servants---Rule 6(1) of the Balochistan Government Rules of Business, 2012 did not grant to a Minister the power to post or transfer a civil servant---Where such a power was given to a Minister it would negate R. 8(1)(c) of the Balochistan Government Rules of Business, 2012, which stipulated that the relevant Secretary was "the official head of the Department"---Such a power vesting in the Minister would also undermine the secretary's power to enforce "discipline" and dilute his power to ensure the "efficient administration" of the Department---Civil servant must not pursue a Minister to get a posting/transfer of his/her choice, but this, more likely than not would happen, if a Minister was given the power to post/transfer a civil servant---Civil servants were not permitted to approach politicians---Ministers were politicians who had been elected by the people and as such were entitled to enact policies on the basis of which they were elected, however, the posting or transfer of a civil servant was not a policy matter---Balochistan Government Servants (Conduct) Rules, 1979 stipulated that "No Government servant shall, directly or indirectly, approach any Member of the National Assembly or Provincial Assembly or any other non-official person to intervene on his behalf in any manner"---When a civil servant approached a Minister to obtain a posting or transfer of his choice it also constituted misconduct, and disciplinary action could be initiated against such civil servant---Furthermore the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 which defined 'misconduct' and included when, a civil servant brought or attempted to bring political or other outside influence directly or indirectly to bear on the Government or the Minister or any Government officer in respect of any matter relating to the appointment, promotion transfer, punishment, retirement or other conditions of service of a civil servant---Any notification which granted a Minister the power to post/ transfer a civil servant was ultra vires the Balochistan Government Rules of Business, 2012 and the scheme of governance envisaged in the Constitution and therefore was of no legal effect---Supreme Court directed that the Provincial Chief Secretary and the Secretaries of the departments of the Government were not to act pursuant to any notification, order and/or instruction whereby a Minister ordered the posting/transfer of a civil servant---Supreme Court observed that if a dispute arose between a Minister and a Secretary with regard to the respective scope of their domains or the orders of a Minister appeared to depart from any rule or regulation of established Government policy the Secretary had to draw the attention of the Minister to it, and, if the Minister disagreed with the Secretary then the Secretary was required to refer the matter to the Chief Minister through the Chief Secretary.

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

----S. 10---Posting and transfer of civil servant---Junior officer elevated and placed above his seniors through a notification---Section 10 of the Balochistan Civil Servants Act, 1974 did not state that a civil servant could be posted or transferred by disregarding his seniority, nor did it empower the Government to cut short the normal tenure of a posted/transferred civil servant, and particularly without assigning any reason---By way of impugned notification a junior officer was elevated and placed above his seniors without assigning any reasons---Supreme Court set aside the impugned notification in circumstances.

Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.

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

----S. 10---Posting and transfer of civil servant on his own pay and scale basis (OPS)---Such posting/transfer was not legally permissible.

Province of Sindh v. Ghulam Fareed 2014 SCMR 1189 ref.

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

----S. 10---Posting and transfer of civil servant---Minimum period of posting/transfer---While S. 10 of the Balochistan Civil Servants Act, 1974 did not prescribe a minimum period during which a civil servant must serve at his post, it did not mean that the Government without assigning any reason could move a civil servant from the place he was posted to after a month or subject the civil servant to repeated postings in a short period of time because that would amount to punishing him---Such postings also adversely affected the public interest and resulted in the wastage of scarce resources and constituted bad governance.

M. Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Petitioner.

Ayaz Khan Swati, Additional Advocate General, Balochistan Noor-ul-Haq Baloch, Secretary, Secondary Education Department for Respondents Nos.1 and 2.

Kamran Murtaza, Advocate Supreme Court for Respondent No.3.

2018 S C M R 1425

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

ABDUL BASIT---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 461 of 2016, decided on 26th April, 2018.

(Against the judgment dated 13.07.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 304 of 2011)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Prosecution alleged that ten kilograms of charas contained in separate packets was recovered from the possession of accused when he was driving a motorcycle and thereafter upon disclosures made by the accused eighty kilograms of charas and 200 kilograms of charas contained in separate packets had been recovered from some other places to which the accused had allegedly led the police party---According to the recovery witnesses/police official produced by the prosecution the last two recoveries did not pertain to the accused and the substance recovered through such recoveries was owned by a co-accused---Complainant/police official as well as one of the recovery witnesses stated that the memorandum of recovery pertaining to the first recovery had not been prepared at the spot but at some subsequent stage and place, which was a serious lapse on the part of the investigating agency and the recovery officer and because of such lapse there was no guarantee that before preparation of the memorandum of recovery vis-a-vis the first recovery the substance recovered had not been tampered or interpolated with or that the weight of the substance recovered was the same as alleged---In view of such infirmities in the case of the prosecution the benefit of doubt had to be extended to the accused---Conviction and sentence of the accused recorded and upheld by the courts below were set aside and he was acquitted of the charge by extending the benefit of doubt to him---Appeal was allowed accordingly.

Shahid Azeem, Advocate Supreme Court for Appellant.

Raja Inam Ameen Minhas, Special Prosecutor, Anti-Narcotics Force for the State.

2018 S C M R 1427

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

CMPAK LIMITED---Petitioner

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY---Respondent

Civil Petition No. 972 of 2018, decided on 30th March, 2018.

(Against order dated 23.02.2018 passed by the Islamabad High Court, Islamabad passed in F.A.O. No. 124 of 2017)

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

----S. 23(3)(c)(i)---Long Distance and International (LDI) licence---Unauthorized use of White Listed IP addresses of the [Pakistan] Telecom Authority by the licensee---Allegation against the petitioner (licensee) was that it was misusing the White Listed IP addresses (which were allocated only for the purpose of providing GPRS/EDGE data services) for terminating international calls which was in contravention of the telecommunication regulatory laws of the country---Pakistan Telecom Authority ("the Authority") imposed a fine of Rs.40 million on the licensee, which was subsequently upheld by the High Court---Validity---Neither the law nor the licence given to the licensee authorized it to use White Listed IP addresses for terminating international calls---Licensee admitted that such addresses were actually used for testing the LDI platform---Licensee had to establish in the first place that such use was permitted and further, that unauthorized use was limited to merely testing of the LDI platform and not more---One of the service providers of the licensee provided undisputed data which identified call termination activity---After analyzing such data the Telecom Authority came to the conclusion that that the licensee had used White Listed IP addresses to terminate 2.2 million international calls accounting for around 11 million minutes by using Voice over IP (VoIP) protocol and session initiation protocol (SIP)---Licensee failed to rebut, explain or effectively dispute the results of such data analysis---Further, despite having made a categorical statement that it was conducting an internal inquiry, the licensee never submitted any report despite repeatedly being asked for by the Telecom Authority---Penalty imposed on the licensee was neither excessive nor exaggerated and in line with the gravity of acts and omissions of the licensee---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Ali Raza, Advocate Supreme Court and Tariq Mehmood, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2018 S C M R 1432

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Gulzar Ahmed and Munib Akhtar, JJ

Mst. SUMAIRA MALIK---Petitioner

Versus

Malik UMAR ASLAM AWAN and others---Respondents

Civil Review Petition No. 420 of 2013 in Civil Appeal No. 669-L of 2013, decided on 9th June, 2018.

(To review the judgment dated 28.10.2013 passed by the Court in Civil Appeal No. 669-L of 2013)

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

----S. 52---Election petition---Standard of proof---In election matters the standard of proof was much higher than the civil standard (balance of probabilities) though short of the criminal standard (beyond reasonable doubt)---Any evidence tendered in an election matter must be considered and "appreciated" by adhering to such standard, and not otherwise.

Muhammad Siddique Baloch v. Jehangir Khan Tareen and others PLD 2016 SC 97 ref.

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

----Art. 84---Representation of the People Act (LXXXV of 1976), S. 78(3)(d)---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Election petition---Visual examination/comparison by the Court itself of photographs and the signatures---Legality---Petitioner and the respondent were candidates in the contest for a seat for National Assembly in the General Election of 2008---Petitioner was the candidate returned by the constituency---Respondent challenged petitioner's election by means of an election petition alleging that the petitioner did not have a graduate degree, which was at that time a mandatory requirement for all candidates, and that degree presented by the petitioner along with her nomination papers was fake as she had obtained it by impersonation, i.e., that some person other than the petitioner had sat for the examination---By means of the judgment under review the Supreme Court held that the degree was indeed obtained by impersonation---Supreme Court itself examined and compared the two photographs that formed part of the University's record with the petitioner's photographs on her Computerized National Identity Card---On such visual comparison, the Court concluded that the photographs in the University record were different from those on the CNIC and the election poster; secondly, the Supreme Court itself examined and compared the signatures appearing in the University record with the petitioner's signature on her identity card as well as with a sample of the petitioner's handwriting---Again on a visual comparison, the Court concluded that they were discrepant---Resultantly the petitioner's election was set aside and it was also declared that she was disqualified from being elected as a member of Parliament---Held, that had the Court been properly assisted in the judgment under review, and the record examined in the perspective of the requisite standard of proof, the matter of photographs and signatures would have been referred for expert consideration and analysis---Keeping in mind the requisite standard of proof it was unsafe for the Court/Election Tribunal to itself carry out a visual examination and comparison of the election record---In election matters, if at all such an exercise had to be carried out, it must be referred to expert opinion (which would include the opinion of any relevant regulatory body or authority)---Totality of the evidence must be considered only while taking such report into account and applying the requisite standard of proof---Such principle was however subject to one exception, namely that if the result of the Court's own examination and comparison would be in favour of the returned candidate then such an exercise may be permissible---Such exception was consistent with and indeed an aspect and application of the requisite standard of proof which, operated strongly in favour of the returned candidate---In the present case the report of Provincial Forensic Science Agency was available on record which unequivocally revealed that all the photographs were those of the petitioner---Most crucially, that included the photographs taken from the University record in relation to the petitioner's degree---Recourse had by the Court to Art. 84 of Qanun-e-Shahadat, 1984 for visual examination of photographs and signatures was contrary to the dictates of the requisite standard of proof---Even if such error could be regarded as being sub silentio it was nonetheless so fundamental and had effect at such a basic level in, and on, the facts and circumstances of the case that it amounted, within the meaning of law, to an error apparent on the face of the record---Supreme Court set aside the judgment under review and directed that the petitioner shall be entitled to file her nomination papers, if she intended to contest in any of the future elections---Review petition was allowed accordingly.

(c) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Bedrock principle---Meaning---Bedrock principles in respect of any area or branch of the law were those for which there was clear and consistent authority, invariably at the highest level and usually of long standing, which were recognized as such; or, a bedrock principle was one that was accepted as part of the ABC's (basics) of that branch of the law---Even if a bedrock principle had been correctly identified, its putative non-application or mis-application in the judgment sought to be reviewed must operate and have effect at a fundamental and basic level in the facts and circumstances of the case, and such that the only possible outcome, had the principle been correctly appreciated and applied, would have been a decision contrary to the one actually arrived at.

Mubeen Uddin Qazi, Advocate Supreme Court for Petitioner.

Hamid Khan, Senior Advocate Supreme Court for Respondents.

Asim Mansoor, DAG for the Federation.

2018 S C M R 1441

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar and Munib Akhtar, JJ

MUHAMMAD HAYAT---Petitioner

Versus

MUHAMMAD MISKEEN (DECD.) through LRs and others---Respondents

C.P. No. 674-K of 2018, decided on 13th June, 2018.

(Against the Judgment dated 26.03.2018 passed in C.P. No.S-01/2006 by High Court of Sindh Karachi)

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

----Ss. 13 & 15---Ejectment of tenant---Ground of bona fide personal need of landlord---Tenant impugned order of Appellate Court whereby tenant's ejectment was ordered on ground that landlord had established bona fide personal need---Validity---Sole testimony of landlord was sufficient to establish personal bona fide need, if such statement of landlord was consistent with averments made in ejectment application---Impugned order being in accordance with such principle of law, leave to appeal was refused by Supreme Court.

Muhammad Saathi Ishaque, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2018 S C M R 1444

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

CIVIL APPEALS NOS.1171, 1179 TO 1187, 1190 TO 1192, 1198 TO 1236, 1242, 1255, 1274 TO 1276, 1502 TO 1515 OF 2017 AND 114 OF 2013

(Against the judgments dated 3.8.2017 and 30.4.2012 of the High Court of Sindh, Karachi and Peshawar High Court, Peshawar passed in H.C.As. Nos.83/2015, 263, 268, 271, 264, 266, 274, 276, I.C.A.No.281/2016, H.C.As. Nos.306, 265, 278, 275, 269, 270, 272, 273, 277, 283, 285, 321, 322, 338, 288/2016, 85, 84/2015 and C.R. No.215/2008)

AND

CIVIL MISC. APPLICATIONS NOS.6517, 6204, 6207, 6936 TO 6940, 8195, 8196, 6723, 6725, 6727, 6729, 6731, 6735, 6747, 6721, 6733, 6737, 6741, 6743, 6745, 8394, 8395, 6739 OF 2017

(Applications for impleadment)

SEARLE IV SOLUTION (PVT.) LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1171, 1179 to 1187, 1190 to 1192, 1198 to 1236, 1242, 1255, 1274 to 1276, 1502 to 1515 of 2017 and 114 of 2013 and Civil Misc. Applications Nos. 6517, 6204, 6207, 6936 to 6940, 8195, 8196, 6723, 6725, 6727, 6729, 6731, 6735, 6747, 6721, 6733, 6737, 6741, 6743, 6745, 8394, 8395, 6739 of 2017, decided on 27th June, 2018.

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

----Ss. 80 & 217(2)---Civil Procedure Code (V of 1908), S. 9---Suit filed in the (Sindh) High Court in its original civil jurisdiction against an order, notification relating to a taxing statute---Bar to jurisdiction of civil courts under ouster clause in S. 217(2) of the Customs Act, 1969 read with the limitation to the jurisdiction of civil courts in S. 9 of the Civil Procedure Code, 1908---Scope and exception---Appellants, being importers of different raw materials, had claimed exemption of customs duties under certain SRO(s) issued in terms of the Customs Act, 1969, which the relevant authorities/Assessment Officer(s) denied them---Appellants filed a suit before the Single Bench of the (Sindh) High Court in exercise of its original civil jurisdiction for the redressal of their grievance against the adverse orders of the Assessment Officer(s)---Contention of customs department was that such suit was expressly barred under S. 217(2) of the Customs Act, 1969 read with S. 9 of the Civil Procedure Code, 1908 (C.P.C.)---Contention of appellants that plain reading of S. 217(2) of the Customs Act, 1969 reflected that the jurisdiction of the "civil courts" had been barred for any assessment made, any tax levied, any penalty imposed or collection of any tax made "under the Act"; that the operative term to determine such a bar of jurisdiction was "under this Act"; that the actions of the customs authorities being challenged were unlawful and thus not made "under the Act" and hence the bar of jurisdiction under S. 217(2) of the Customs Act, 1969 read with S. 9, C.P.C. did not apply---Validity---Perusal of the adverse orders revealed that they were reassessment orders under S. 80 of the Customs Act, 1969---Nature of the power exercised by the authority/Assessment Officer was within its powers to assess, reassess and determine the tax liability of a person, and since the same was in consonance with the spirit of S. 80, it could not be said to be beyond jurisdiction---Adverse orders/actions by the assessment officer could not be said to be beyond jurisdiction and thus failed to circumvent the bar to jurisdiction of civil courts imposed under S. 217(2) of the Customs Act, 1969.

(b) Jurisdiction---

----Meaning---"Jurisdiction" meant a power to hear and decide a legal controversy between parties, and if the order was contrary to the law that would not render it as one without jurisdiction.

Messrs Friend Engineering Corporation v. Government of Punjab 1991 SCMR 2324 ref.

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

----S. 217(2)---Suit filed in the (Sindh) High Court in its original civil jurisdiction against an order, notification relating to a taxing statute---Bar to jurisdiction of "civil courts" under ouster clause in S. 217(2) of the Customs Act, 1969---Scope and exception---Single Bench of the (Sindh) High Court was a "High Court" and could not be equated with any other "civil court"---Single Bench of the (Sindh) High Court, regardless of what jurisdiction it exercised, was a "High Court" and hence fell outside the ambit of the ouster clause in S. 217(2) of the Customs Act, 1969---Section 217(2) of the Customs Act, 1969, therefore, only barred the cognizance of suit filed under the civil jurisdiction exercised by the civil courts, and such bar could not be extended to include the exercise of the same jurisdiction by the Single Bench of the (Sindh) High Court---Supreme Court directed that while the Single Bench of the (Sindh) High Court at Karachi may still take cognizance of any suit arising out of an action/order of the tax authorities/Customs Officers, such jurisdiction must be sparingly exercised by the Single Bench and the suits must be expeditiously decided within the period of one year or less so that these suits were not used by aggrieved parties as a means to deprive the public exchequer of the taxes due for years on the basis of interim injunctions; that the suits filed and those that had already been filed must only be entertained on the condition that a minimum of 50% of the tax calculated by the tax authorities was deposited with the authorities as a goodwill gesture, so that on conclusion of the suit, according to the correct determination of the tax due or exemption (as the case may be), the same may be refunded or the remaining balance be paid.

Province of Sindh v. Haji Razzaq PLD 2017 SC 207 and In the Matter of Muhammad Osman Sumro AIR 1948 Sindh 89 ref.

(d) Interpretation of statutes---

----Statutory provision must be interpreted within the meaning that was attributed to it by the language and specific words used by the Legislature---Redundancy could not be attributed to any word used therein.

Abdul Sattar Pirzada, Advocate Supreme Court for Appellants/ Applicants (in C.A.1171/2017).

Khalid Anwar, Senior Advocate Supreme Court and Rashid Anwar, Advocate Supreme Court for Appellants/Applicants (in C.As.1179 to 1187, 1190, 1192, 1219 to 1235/2017).

Makhdoom Ali Khan, Senior Advocate Supreme Court and M. Kassim Mirjat, Advocate-on-Record for Appellants/Applicants (in C.As.1198 to 1218, 1236, 1242, 1255/2017 and C.M.As.6204, 6207, 6936 to 6940, 8195 and 8196/2017).

Zaheer-ul-Hassan Minhas, Advocate Supreme Court for Appellants/Applicants (in C.As. 1274 to 1276/2017).

Dr. Farhat Zafar, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Appellants/Applicants (in C.A.114/2013).

Dr. Farough Naseem, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants/Applicants (in C.As.1502 to 1515/2017).

Dr. Farough Naseem, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants/Applicants (in C.M.As.6517, 6723, 6725, 6727, 6729, 6731, 6735, 6747, 6721, 6733, 6737, 6741, 6743, 6745, 6735, 6739/2017).

Kafil Ahmed Abbasi, Advocate Supreme Court for Collector of Customs Karachi (in all cases).

Raja Muhammad Iqbal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Collector of Customs Port Qasim Karachi (in all cases).

Khalid Mehmood Siddiqui, Advocate Supreme Court for Respondents (in C.As.1182, 1186, 1187, 1192 and 1220/2017).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Respondents (in C.A.1274 to 1276/2017).

M. Sarfraz Metlo, Advocate Supreme Court for FBR.

Salman Akram Raja, Advocate Supreme Court assisted by M. Asad Lada, Advocate for Respondents (in C.A.1198/2017).

Rehmanullah, Advocate Supreme Court for Respondents (in C.A.1504/2017).

Dr. Raana Khan, Advocate-on-Record for Respondents (in C.A.1192/2017).

Abdul Latif Afridi, Advocate Supreme Court for Respondents (in C.A.114/2013).

Salman Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Commission IR (Corporate) Multan.

2018 S C M R 1468

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

HOTEL GALAXY (PVT.) LTD. (DAYS INN)---Appellant

Versus

SUI SOUTHERN GAS COMPANY LTD. and others---Respondents

Civil Appeal No. 1876 of 2008, decided on 3rd May, 2018.

(Against judgment dated 21.04.2008 of High Court of Sindh at Karachi, passed in Constitutional Petition No. D-91 of 2006)

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

----S. 11---Gas connection for Captive Power Generation Unit---"Export orientated unit"---Scope---Appellant company which ran hotels filed an application with the Gas company requesting for provision of a connection for running its power generating set on gas for use during periods of load-shedding or unavailability of power from the grid---Such request was declined on the ground that the policy for the Federal Government for supply of gas to Captive Power Units stated that gas connection for power generation could be provided only to export oriented industries having sizable foreign investment which was required to be confirmed by the Board of Investment---Plea of appellant that it had foreign exchange investment of US $ 3.122 million and squarely fell within the definition of "industries having sizable foreign investment" as given in the Federal Government's policy, therefore refusal on the part of Gas company to allow a gas connection for captive power generation was illegal and without lawful authority---Validity---Record indicated that the Economic Coordination Committee (ECC) decided that gas to Captive Power Projects would be supplied strictly in accordance with ECC's decision to industrial units only and not to hotels, marriage halls and other commercial organizations---Appellant did not fulfil the requirements prevalent at the relevant time for grant of gas connection for captive power generation i.e. it did not have a sizable foreign investment of Rupees five hundred million or above and was obviously not an export oriented unit---Plea of discrimination raised by the appellant was also untenable as the appellant was unable to show by producing any document or by pointing to any unit or entity which had been provided gas connection for running Captive Power Generation Unit in violation of Government policies and directives issued from time to time pursuant to decision of the ECC---Appeal was dismissed accordingly.

Rashid A. Rizvi, Senior Advocate Supreme Court for Appellant.

Asim Iqbal, Advocate Supreme Court for Respondent No.1.

2018 S C M R 1474

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

Messrs WAK LIMITED MULTAN ROAD, LAHORE---Petitioner

Versus

COLLECTOR CENTRAL EXCISE AND SALES TAX, LAHORE (NOW COMMISSIONER INLAND REVENUE, LTU, LAHORE) and others---Respondents

Civil Petitions Nos. 4451 to 4453 of 2017, decided on 20th March, 2018.

(Against the judgment dated 24.08.2017 of the Lahore High Court, Lahore passed in S.T.R. No. 33/2005, ETR No.1 of 2005 and STR No. 10 of 2006)

(a) Practice and procedure---

----Earlier judgment of equal Bench of the High Court on the same point was binding on the subsequent Bench and if the subsequent Bench tended to take a different view, it had to request for the constitution of larger Bench.

Multilines Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 43 and Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 ref.

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

----S. 36(3)---Recovery of tax not levied or short-levied or erroneously refunded---Contention that if an order under S. 36 of the Sales Tax Act, 1990 was not passed within 45 days and then within 90 days despite extension in terms of the proviso to S. 36(3) it could not be passed (at all) subsequently---Validity---Intent behind S. 36 of the Sales Tax Act, 1990, was to ensure expeditious disposal of case and not an outright extinguishment of the tax liability---Any interpretation which tended to open room for escape of tax liability through official and Institutional manipulations could not be accepted---Even otherwise when no consequence for neglect to comply with the said provision had been given in the statute, it could not be construed as mandatory on any account and by any attribute.

Ali Sibtain Fazli, Advocate Supreme Court assisted by Ibad-ur-Rahman, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ms. Kausar Parveen, Advocate Supreme Court for Respondents.

2018 S C M R 1542

[Supreme Court of Pakistan]

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

WAPDA through Chairman and another---Appellants

Versus

Mst. PARIZADA---Respondent

Civil Appeal No. 1203 of 2014, decided on 11th July, 2018.

(On appeal against the judgment dated 18.10.2012 passed in the Peshawar High Court, D.I. Khan Bench in Writ Petition No. 841 of 2010)

Pakistan WAPDA Pension Rules, 1977---

----R. 6---Pension---Entitlement of employee's widow to pension---Deceased employee was appointed as office chowkidar in appellant-department---Deceased died during service after putting in 9 years and 8 months of service, and after his death, his widow was paid group life insurance and other financial benefits but was denied pension on the ground that he was a work-charge employee---Widow claimed that her husband being chowkidar had died after serving for a period of about 10 years, thus, she was entitled to get pension under Pension Rules of the department---Validity---Deceased employee was appointed as chowkidar, which was a permanent post and that was the reason that he had been given annual increments and upon his death, his wife was given all financial benefits including group life insurance etc.---From the nature of job and the period the deceased employee had served, it could not be said that he was a work charge employee, and there was every likelihood that he would have continued to serve had he lived longer---Serial Number 2 of paragraph 2(c)(5) of Volume-II of WAPDA Compendium of Important Directives/Office Orders issued by the Authority clearly provides that "pension as well as commutation (25%) is to be paid, if service is 9-1/2 years or more."---In the present case, the deceased employee had admittedly put in 9 years and 8 months service, hence, he being on a permanent post until his death, his widow was entitled to receive pension---Appeal was dismissed accordingly.

Mian Shafaqat Jan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Arshad Zaman Kayani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2018 S C M R 1544

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar and Munib Akhtar, JJ

COMMISSIONER INLAND REVENUE, KARACHI---Appellant

Versus

PAKISTAN BEVERAGES LIMITED, KARACHI---Respondent

Civil Appeal No. 116-K of 2016, decided on 14th June, 2018.

(On appeal from the judgment dated 13.8.2015 passed by the High Court of Sindh at Karachi in C.P. No. D-3977 of 2014)

(a) Administrative law---

----Discretionary power, exercise of---Scope---Law recognizes no such thing as an unfettered discretion---All discretionary powers, especially that as conferred by statute, must be exercised in terms of well-established principles of administrative law, which were of longstanding authority and had been developed, enunciated and articulated in many judgments of the Supreme Court.

(b) Administrative law---

----Discretionary power, exercise of---Scope---Discretionary statutory power could only be exercised on a ground or to achieve an object or purpose that was lawfully within the contemplation of the statute.

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

----S. 40B---Posting of Inland Revenue Officers at premises of tax payer---Question as to whether such posting was time bound---Power under S. 40B of the Sales Tax, 1990 had been granted to "monitor" the "production, sale of taxable goods and stock positions" of a registered person or class of such persons, by posting Inland Revenue officers at the relevant premises---Such monitoring was not intended to be indefinite and could only be for some object, ground or purpose that was legitimately and lawfully within the contemplation of the Sales Tax Act, 1990---Once the purpose of monitoring had been served or object achieved or the ground stood exhausted, the monitoring must come to an end; it could not be left to the unfettered discretion of the Board, the Chief Commissioner or the Commissioner (as the case may be) to determine when the purpose had been served or object achieved---Exercise of the power conferred by S. 40B was time bound in the sense that some timeframe or period must be given in any order made under the section---Relevant authority would always have the option to reassess the situation at or near the conclusion of the period, and if there were legitimate grounds for extension, then a further period may be granted---Equally, it would be open to the concerned person/taxpayer to challenge any exercise of the statutory power or any extension in the period, in accordance with law.

Muhammad Siddiq Mirza, Advocate Supreme Court for Appellant.

Respondent ex parte.

2018 S C M R 1549

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD YASEEN---Petitioner

Versus

MUHAMMAD AFZAL and another---Respondents

Criminal Petition No. 333 of 2018, decided on 20th April, 2018.

(Against the judgment dated 01.03.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1222 of 2013, Criminal Revision No. 769 of 2013 and Murder Reference No. 421 of 2013)

Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Reappraisal of evidence---First Information Report for the incident had been lodged by the complainant/petitioner, however later on he lodged a private complaint for the same incident but with a changed story and motive---Deceased was a proclaimed offender in connection with some other criminal case---Complainant had himself admitted before the Trial Court that many residents of the locality had told the investigating officer that the deceased had committed suicide when he was being chased by the police, thus, there was possibility that deceased had been fired at and killed by the local police when being chased and later on the story had been changed so as to save the police force from the charge of murder---Post¬mortem examination of the deadbody had been conducted with a noticeable delay giving rise to an inference that time had been consumed by the local police in cooking up a story for the prosecution---New motive had been introduced through the private complaint but neither the original nor the subsequent motive had been proved before the Trial Court---High Court, in such circumstances, had correctly concluded that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Petition for leave to appeal was dismissed and leave was refused.

Malik Mateen Ullah, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2018 S C M R 1586

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

Haji BAZ MUHAMMAD KHAN and another---Appellants

Versus

NOOR ALI and another---Respondents

Civil Appeal No. 1178 of 2008, decided on 24th May, 2018.

(On appeal against the judgment dated 03.11.2006 passed by the High Court of Balochistan, Quetta in REA Nos. 26 and 27 of 1999)

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

----S. 12---Contract Act (IX of 1872), S. 62---Suit for specific performance of agreement to sell---Maintainability---Novation agreement---Landlord and tenant entered into an oral agreement to sell the subject property---Tenant failed to pay the balance sale consideration within the stipulated time, whereafter the matter was referred to arbitration---Arbitrators gave their award, in terms whereof the tenant was to vacate the shop under his tenancy and hand it over to the landlord and in consideration thereof the landlord was to pay a sum of Rs.1,400,000/- to the tenant---Such decision rendered by the arbitrators was not challenged by any of the parties in any legal proceedings---Tenant failed to handover the possession of the shop, as a result of which the landlord also did not pay him the amount determined by the arbitrators---Landlord then sold the shop to a third party, which filed eviction proceedings against the tenant after which the tenant on his part filed a suit for specific performance of his oral agreement to sell with the landlord---Held, that the legal effect of the arbitrators' decision, which remained unchallenged was that the tenant gave up both his right to seek specific performance of the contract under the oral agreement as well as his tenancy rights on the condition of receiving Rs.1,400,000/- from the landlord---In such circumstances, the tenant could not have sought specific performance of the oral agreement that stood novated in terms reflected in the arbitrators' award signed and acknowledged by both the parties---Oral agreement to sell came to an end and in consequence thereof the tenant was only entitled to receive Rs.1,400,000/- and handover the possession of the shop to the landlord, thus the suit for specific performance was not maintainable---Supreme Court directed that the landlord shall deposit Rs.1,400,000/- in the Supreme Court within a period of sixty days which shall then be paid to the tenant; that there shall be no extension in time for any reason whatsoever and failure to deposit the amount within such period shall result in dismissal of present appeal and the tenant shall be entitled to retain the possession of the shop in his capacity as tenant of the third party who were the successor-in-interest of the landlord; that the tenant shall be entitled to receive the amount deposited in the Supreme Court after the possession of the property was handed over to the third party---Appeal was allowed accordingly.

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

----S. 62---Novation agreement---Once a party novated a contract then enforcement of the earlier agreement could not be sought in terms of S. 62 of the Contract Act, 1872 unless it was expressly stipulated in the fresh agreement that his rights in the original agreement would not be prejudiced.

Habib Ahmad v. Meezan Bank Ltd. 2016 CLC 351 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Appellants.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.1.

Respondent No. 2 ex parte.

2018 S C M R 1590

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

LAL KHAN and others---Appellants

Versus

QADEER AHMED and others---Respondents

Criminal Appeals Nos. 449 and 450 of 2017, decided on 1st June, 2018.

(Against the judgment dated 02.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 108 of 2011 and Capital Sentence Reference No. 2-T of 2011)

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

----Ss. 302(b), 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a), 7(b) & 7(h)---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, common intention, acts of terrorism---Appeal against acquittal---Reappraisal of evidence---Accused and his co-accused allegedly exchanged fire with a police party, as a result of which the co-accused and a police official lost their lives---According to the prosecution the initial firing at the police had been resorted to by the accused and co-accused and through such firing one member of the police force had been critically injured at the spot, then the question was as to why the police in firing back chose co-accused as the only target---Site plan clearly showed that if the police party wanted to target the accused as well then there was nothing to stop it from causing injuries to him---Such circumstances indicated a real possibility that it was only the co-accused who had fired at the police party and in response the police party had fired back at him and that accused had not fired at all and surrendered before the police without causing any harm to anybody---Four crime-empties secured from the place of occurrence did match with the pistol statedly recovered from the custody of the accused at the time of his surrender but it could not be lost sight of the fact that the said pistol had been recovered at the spot and it was not difficult for the police party to manufacture as many crime-empties from the said recovered pistol as it wanted so as to strengthen its case against the accused---Circumstances of the case clearly indicated that after surrender of accused some engineering had been resorted to by the prosecution so as to cook up a story qua the accused's role and to bolster the same through contrived circumstances---No occasion was found to interfere with the judgment of acquittal passed by the High Court in favour of the accused---Appeal against acquittal was dismissed accordingly.

(b) Criminal trial---

----'Conjectures' and 'inferences'--- Scope and distinction---"Conjecture" had no place in criminal law whereas an inference played an important role because the same was based upon a logical deduction from circumstances available on the record.

Malik Matee Ullah, Advocate Supreme Court for Appellants (in Cr. A. 449 of 2017).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for Appellants (in Cr. A. 450 of 2017).

Haider Mehmood Mirza, Advocate Supreme Court for Respondents (in both cases).

2018 S C M R 1607

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

PROVINCE OF SINDH and others---Appellants

Versus

MUHAMMAD TAQI SHAH---Respondent

Civil Appeal No. 69-K of 2017 out of C.P.L.A. No. 278-K of 2016, decided on 14th June, 2018.

(Against the order dated 23.2.2017 passed by the High Court of Sindh in Constitutional Petition No. D-603 of 2015)

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

----R. 10-A--- Constitution of Pakistan, Art. 25--- Appointment on deceased civil servant's quota---Constitutionality---Respondent applied to the Provincial Government for appointment on his deceased father's quota---High Court after making reference to R. 10-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, directed the Provincial Government to appoint the respondent in BPS-17 on his deceased father's quota with annual increments from the date when the respondent's application for appointment was forwarded---Held, that though the respondent in his petition filed before the High Court had claimed treatment in terms of R. 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 for appointment in pay scale 1 to 10 but the High Court on its own considered the appointment of the respondent in terms of R. 10-A as was introduced on 2-9-2002, without examining its legitimacy and applicability and notwithstanding the fact that the said Rule by that time was no more on the statute book---Provincial Government vide a notification dated 10-10-2016 deleted R. 10-A from the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Process provided in Federal and Provincial statutes for appointment through Public Service Commission was for public good and any deviation to bypass the competitive process (for appointments) would violate the right of equal treatment to the citizens as guaranteed under Art. 25 of the Constitution and, therefore, would not be sustained---Appeal filed by Provincial Government was allowed accordingly.

Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 and Suo Motu Case No. 13/2016 2017 SCMR 838 ref.

Sibtain Ahmed, AAG Sindh and Ghulam Rasool Mangi, Advocate-on-Record for Appellants.

Zulfiqar Ali Sangi, Advocate Supreme Court and A. S. K. Ghori, Advocate-on-Record for Respondent.

2018 S C M R 1616

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Mushir Alam, JJ

Mst. SAEEDA BANO SIDDIQUI---Petitioner

Versus

CANTONMENT EXECUTIVE OFFICER, CANTONMENT BOARD MALIR, KARACHI---Respondent

Civil Petition No. 650-K of 2013, decided on 5th August, 2014.

(Against judgment dated 12.11.2013 of High Court of Sindh at Karachi, passed in C.P. No. D-3033 of 2011)

Cantonment Land Administration Rules, 1937---

----Cantonment land--- Commercialization of residential land---Administrative decision of Cantonment Board--- Petitioners, on numerous occasions were extended concession to avail commercialization which was not availed and last such concession was extended on 29-6-2006---Period of payment of premium extended at the request of the petitioner upto 7th March, 2008 was also not availed and almost two years after the expiry of such period, the petitioner again approached the Cantonment Board for commercialization which was declined as the property fell outside the commercial zone per the revised policy---Plea of petitioner that once commercialization of an area was approved it could not be revised was not tenable as commercialization was an administrative decision---High Court had rightly observed in the impugned judgment that merely because petitioner's plot was next to a commercial area which was just across the road would not entitle the petitioner to seek commercialization of her plot as a matter of right---Petition for leave to appeal was dismissed and leave was refused.

Nisar A. Mujahid, Advocate Supreme Court and A. S. K. Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2018 S C M R 1621

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

CONSTITUTION PETITION NO.57 OF 2016

(Under Article 184(3) of the Constitution)

AND

C.M.A.NO.681-K OF 2018 IN CONST.P.NO.57 OF 2016

(Applicant for amendment of petition)

AND

C.R.P.NO.440 OF 2016 IN C.M.A.NO.5135 OF 2016 IN C.R.P.142 OF 2015 IN CONST.P.NO.104 OF 2011

(On review of this Court's order dated 24.8.2016 passed in C.M.A.No.5135/2016)

AND

CONSTITUTION PETITION NO.24 OF 2018

(Under Article 184(3) of the Constitution)

AND

HUMAN RIGHTS CASE NO.30998-S OF 2018

(Regarding shortage of water supply in Karachi)

AND

HUMAN RIGHTS CASE NO.50363-P OF 2010

(In the matter regarding acute shortage of water supply in Karachi)

AND

CONSTITUTION PETITION NO.37 OF 2018

(Under Article 184(3) of the Constitution)

AND

CONSTITUTION PETITION NO.38 OF 2018

(Under Article 184(3) of the Constitution)

Barrister ZAFARULLAH KHAN and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No. 57, 2016, C.M.A. No. 681-K of 2018 in Constitutional Petition No. 57 of 2016, C.R.P. No. 440 of 2016 in C.M.A. No. 5135 of 2016 in C.R.P. 142 of 2015 in Constitutional Petition No. 104 of 2011, Constitutional Petition No. 24 of 2018, Human Rights Case No. 30998-S of 2018, Human Rights Case No. 50363-P of 2010 and Constitutional Petitions Nos. 37, 38 of 2018, decided on 4th July, 2018.

Constitution of Pakistan---

----Art. 184(3)---Right to life---Scope---Water reservoirs---Construction of Diamer Bhasha Dam and Mohmand Dam---Establishment of an account for donations for construction of dams---Need for water reservoirs was not only expedient but also sine qua non for the survival of the people and economy of the country---Right to life was a Fundamental Right and without water there could be no existence of life---Establishment of water reservoirs was therefore not a question of just quality of life rather the very existence thereof---In terms of the provisions of Art. 184(3) of the Constitution read with Art. 9 and as guardian of the Fundamental Rights of the people of the country, the Supreme Court had the jurisdiction to issue necessary directions to the Government for the practical enforcement of the primordial right to life---Supreme Court directed the Federal and Provincial Governments, the Water and Power Development Authority (WAPDA) and all the executive authorities in the country who were responsible or had nexus/connection with the building of the Diamer Bhasha Dam and Mohmand Dam and all matters connected thereto, to take all necessary steps for the commencement of construction and early completion of said dams; that a comprehensive report in such regard with detailed timelines and milestones shall be submitted to the Supreme Court within a period of three weeks by an Implementation Committee headed by the Chairman WAPDA and for the time being comprising experts and officials of the Federal and Provincial Governments including certain other officials; that an account shall be established for the time being in the name of the Registrar of the Supreme Court for collecting funds donated by the people of the country for the construction and establishment of the dams; that the funds in the said account shall be utilized solely for the construction and establishment of the dams and shall for the time being be operated under the orders of the Supreme Court on the recommendations of the Implementation Committee; that the funds in the account shall not under any circumstance or for any reason be diverted or utilized for any purpose other than the construction of the dams; that no questions shall be asked by any authority or department including, but not limited to the tax authorities, relating to the source of funds contributed to the account, and that the utilization of the said funds shall be subject to audit as per directions of the Supreme Court.

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners/Applicants (in Const.P.57/2016).

Nemo for Petitioners/Applicants (in Const.P.24/2018).

Nemo for Petitioners/Applicants (in Const.P.37/2018).

Nemo for Petitioners/Applicants (in C.R.P.440/2016).

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Petitioners/Applicants (in Const.P.38/2018).

Malik Abdul Latif Khokhar, Advocate Supreme Court for Petitioners/Applicants (in H.R.C.50363-P/2010).

Nemo for Petitioners/Applicants (in C.M.A.5788/2018).

Khalid Jawed Khan, Attorney General for Pakistan and Syed Nayyar Abbas Rizvi, Addl. A.G.P. assisted by Barrister Asad Rahim Khan for Federation.

Razzaq A. Mirza, Addl. A.G. Punjab, Ms. Sehar Chaudhry, Law Officer, Irrigation, Punjab, Shehryar Qazi, Addl. A.G. Sindh, Jamal Mustafa Syed, Secy. Irrigation, Sindh, Khalid Mehmood, M.D. KWSB, Sindh, Ayaz Swati, Addl. A.G. Balochistan, Barrister Qasim Wadood, Addl. A.G. Khyber Pakhtunkhwa for Provinces.

Dr. Muhammad Rahim Awan, Secretary for LJCP.

Shams-ul-Mulk, ex-Chairman WAPDA, Zafar Mehmood, ex-Chairman WAPDA and Mujeeb-ur-Rehman Pirzada, Advocate Supreme Court on Court's call.

Shoaib Ahmed Siddiqui, Secretary, Naseer Ahmed Jillani, Sr. Chief (Water) and Arshad Ali, Joint Secretary for M/o Planning and Development on Court's Notice.

Shumail Ahmed Khawaja, Secretary and Syed Muhammad Mehar Ali Shah, Joint Secretary/Commissioner Indus Water for M/o Water Resources.

Arif Ahmed Khan, Secretary for M/o Finance.

Yousaf Naseem Khokhar, Secretary for M/o Climate Change.

Lt. Gen. (R) Muzammil Hussain, Chairman, M. Babar, Deputy Director and Shahzad Asif, Director for WAPDA.

2018 S C M R 1626

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sajjad Ali Shah and Munib Akhtar, JJ

Messrs J & S ENTERPRISES (PVT.) LTD. and others---Appellants

Versus

GULZAR AHMED and others---Respondents

Civil Appeals Nos. 85-K to 99-K of 2015 and Civil Appeals Nos. 1783 and 1784 of 2016, decided on 13th July, 2018.

(On appeal from the Order dated 14.1.2015 and 16.1.2015 passed in the High Court of Sindh, Karachi in C.P. No. D-1492/2012, C.Ps. Nos. D-2402 to 2403, C.Ps. Nos. D-2494 to 2505 and C.Ps. Nos.D-298 and D-299 of 2013)

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 4---Industrial Relations Ordinance (XXIII of 1969), S. 25A---Newspaper establishment---Workmen---Termination from service on account of redundancy---Modernization or technological changes and developments at establishment---Valid ground for termination---First and second newspaper establishment/appellants issued notices terminating the services of their employees/respondents on account of advances in technology and consequent modernization of equipment and reorganization of the business, because of which the services of the employees were no longer required and they had become redundant---Employees had relied on a settlement agreement dated 11-3-1990 between them and the appellants, which provided that if on account of modernization a department was being closed, the affected workmen would be adjusted elsewhere and not made redundant---Employees argued that such agreement continued to hold the field up to the time that the termination notices were issued to them in the year 2001---High Court accepted the argument of the employees and held that the "promise" made in 1990 had never been withdrawn and remained valid and subsisting since it was contingent on a future occurrence that, in the event, came about only in 2001; that the employees ought to have been adjusted elsewhere and not made redundant---High Court gave directions for employees to be reinstated in service with all back benefits---Validity---First newspaper establishment was not a party to the settlement agreement, therefore there was no liability or obligation upon it in terms of such agreement---Settlement agreement was entered into between the second newspaper establishment and the employees union---Said agreement was intended to deal with certain immediate matters of concern to employees of a particular city; it was not intended to be an omnibus agreement applicable generally to all workmen of the second newspaper establishment---Clause of the settlement agreement showed that it was limited both in time and place---Correct interpretation and application of the settlement agreement was that it came to an end on 30-06-1990 as expressly provided therein, hence, there was no liability on the either of the newspaper establishment in terms thereof when the termination notices were issued to the employees---Furthermore termination of services of a newspaper employee, who was a workman, for the reason that his services had become redundant on account of the reorganization of business brought about, inter alia, because of modernization or technological changes and developments was a "good cause" within the meaning of S. 4 of the Newspaper Employees (Conditions of Service) Act, 1973---Such ground was a valid ground for terminating the services of a workman in terms of the Industrial Relations Ordinance, 1969---Judgment of the High Court was set-aside in circumstances---Appeals were allowed accordingly.

Sanaullah Ghouri, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants (in C.As. 85-K to 99-K of 2015).

Rasheed A. Rizvi, Senior Advocate Supreme Court and Muhammad Iqbal Ch., Advocate-on-Record for Appellants (in C.As. 1783 and 1784 of 2016).

Syed Shehenshah Hussain, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents (in C.As. 89-K and 94-K of 2015).

Barrister Rafiullah, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents (in C.As. 1783-1784 of 2016).

Respondent No. 1 in person (in C.As. 85-K to 88-K, 90-K to 93-K, 95-K to 99-K of 2015).

2018 S C M R 1661

[Supreme Court of Pakistan]

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

Syed LIAQAT SHAH---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF ENGINEERING AND TECHNOLOGY, PESHAWAR and others---Respondents

Civil Petitions Nos. 3728 and 4385 of 2017, decided on 9th July, 2018.

(On appeal against the judgment dated 03.10.2017 passed by the Peshawar High Court, Peshawar in Writ Petition Nos. 3013-P and 3316-P of 2017)

Master and Servant---

----Contractual employee relieved from service---Inquiry proceedings for wrong-doings---Termination of contractual employment simpliciter was no defence either against taking a criminal or civil action against such employee that might be warranted on account of any wrong-doing committed during the contractual period---If found involved in any wrong-doing, he could still face civil liability or criminal action or both, notwithstanding the fact that he had been relieved from his contractual post---Only where the tenure of service of an employee was protected under a law, it could not be curtailed without first initiating and completing disciplinary proceedings against him---Where wrong-doing of a contractual employee came to light, who was governed by the principle of "Master and Servant", he could be relieved of his service first and inquiry into his wrongdoings could commence thereafter.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2018 S C M R 1720

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

Syed ASGHAR HUSSAIN---Petitioner

Versus

MUHAMMAD OWAIS and others---Respondents

Civil Petition No. 837-K of 2018, decided on 23rd July, 2018.

(Against the Order dated 29.6.2017 passed by High Court of Sindh, Karachi in C.P. No. S-1292 of 2017)

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

----Ss. 16(1) & 16(2)---Eviction petition---Tenant failing to deposit arrears of rent---Striking off defence of tenant---Tenant choose not to comply with the tentative rent order by the Rent Controller---Supreme Court observed best course for the tenant could have been to comply with the tentative rent order under S. 16(1) of the Sindh Rented Premises Ordinance, 1979 and to have contested the matter to its logical conclusion---Tenant's right of defence had been rightly struck off in circumstances---Petition for leave to appeal was dismissed accordingly.

Umer Farooq Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Ishaque Sathi, Advocate Supreme Court and Iqbal Ch. Advocate-on-Record for Respondent No.1.

2018 S C M R 1746

[Supreme Court of Pakistan]

Present: Munib Akhtar and Yahya Afridi, JJ

MUHAMMAD ISHAQUE---Petitioner

Versus

The STATE through P.-G. Punjab and another---Respondents

Criminal Petitioner No. 560 of 2018, decided on 4th July, 2018.

(On appeal from the order dated 11.5.2018 passed by the Lahore High Court, Lahore in Crl. Misc. No. 203443-B of 2018)

Constitution of Pakistan---

----Art. 185(3)---Penal Code (XLV of 1860), S. 337-D---Jaifah---Bail, grant of---Accused was alleged to have inflicted a knife blow on the victim---Although a specific role had been assigned to the accused, it was a night time occurrence and there was nothing to show whether there was any light source at the place of occurrence as would enable the complainant party to determine which of the accused had attacked the victim---First Information Report (FIR) stated that the accused party together assaulted the complainant party and the possibility of a mistake being made by the complainant in such a situation could not be ruled out---Fact that only a single knife blow was inflicted should also be given due consideration in the facts and circumstances of the case---Petition for leave to appeal was allowed accordingly and accused was enlarged on bail.

Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Muhammad Jaffar, DPG, Punjab for Respondent No.1.

Zaheer-ud-Din Babar, Advocate Supreme Court for Respondent No.2.

2018 S C M R 1768

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Munib Akhtar, JJ

ALLAH DITTA---Petitioner

Versus

PERVAIZ AKRAM and others---Respondents

Criminal Petition No. 687 of 2018, decided on 18th July, 2018.

(Against the judgment dated 19.02.2018 passed by the Islamabad High Court, Islamabad in Jail Appeal No. 134 of 2015)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Petition for leave to appeal against acquittal---Reappraisal of evidence---Alleged murder had remained unwitnessed and at some subsequent stage accused had been implicated as an accused person purely on the basis of suspicion---One of the prosecution witnesses had tried to state a background which could confirm the motive for the offence but said witness had neither told the complainant about the same nor informed the police in such regard at the earliest opportunity---Furthermore no independent evidence worth its name had been produced before the Trial Court regarding the alleged motive---Medical evidence had established that the cause of death of deceased was drowning and the circumstances in which he drowned never became available on record---Doctor appearing before the Trial Court had stated that some injuries found on the dead body could be the result of hitting a hard surface and the site plan of the place of occurrence showed that there were rocks and stones available at the spot and their availability at the spot was also admitted by some prosecution witnesses---High Court had rightly acquitted the accused by concluding that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Petition for leave to appeal was dismissed accordingly and leave was refused.

Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2018 S C M R 1792

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Maqbool Baqar, JJ

AL-NOOR SUGAR MILLS LIMITED and another---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1475 and 1476 of 2007, decided on 26th February, 2018.

(On appeal against the judgment dated 16.11.2006 passed by the High Court of Sindh, Karachi, in C.Ps. Nos. D-1965 and D-1966 of 1997)

(a) Central Excises and Salt Act (I of 1944)---

----S. 12-A---Excise duty, exemption from---Section 12-A of the Central Excises and Salt Act, 1944 granted power to the Federal Government to grant exemption (from levy of excise duty), including the power to withdraw such exemption---Exemption notification could be regulated by the Federal Government through subsequent notifications.

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

----S. 12-A---Excise duty, exemption from---Notification cancelling benefit of exemption obtained under a previous notification---Prospective effect---Although an exemption granted by a notification remained in field but the authority to regulate such exemption was retained by the Government---Such regulation of exemption could only operate prospectively and not retrospectively---Notification which was prospective in operation would not breach a party's vested right of availing incentive of exemption under a previous notification---Notification (taking away the right of exemption) could not apply to past and closed transactions.

(c) Interpretation of statutes---

----Fiscal statute---Generally, tax exemptions were given rigid interpretation against the assertion of tax payers and in favour of the taxing power but at the same time it was also established rule that the burden of taxation should be distributed equally and fairly among the tax payers.

Khalid Anwar, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in both appeals).

Muhammad Waqar Rana, Additional Attorney General for Pakistan for the Federation (in both appeals).

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in both appeals).

Shakeel Ahmed, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents Nos. 3-4 (in both appeals).

2018 S C M R 1807

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

CIVIL APPEALS NOS. 700 TO 703 OF 2017

(Against the judgment dated 28.12.2016 of the Lahore High Court, Lahore passed in W.P. No. 25317 of 2016)

AND

CIVIL MISC. APPLICATION NO. 1407 OF 2018

(Applications for impleadment at party)

MAG ENTERTAINMENT (PVT.) LTD. and others---Appellants

Versus

INDEPENDENT NEWSPAPERS CORPORATION (PVT.) LTD. and others---Respondents

Civil Appeals Nos. 700 to 703 of 2017 and Civil Misc. Application No.1407 of 2018, decided on 8th May, 2018.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss. 2(hb), 23(2) & 39(e)---Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr. 13(3) & 13(4)---PEMRA (Eligibility Criteria and Bidding Procedure for Direct to Home Distribution Service Licensing) Regulations 2016, Regln. 2.11---Rules 13(3) & 13(4) of the Pakistan Electronic Media Regulatory Authority Rules, 2009, vires of---Direct to Home ("DTH") licences---Broadcasters barred from holding a distribution licence---Exclusion of broadcasters from the bidding process for DTH licences---Legality---Section 23(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 enjoined upon Pakistan Electronic Media Regulatory Authority ("PEMRA") a duty to prevent monopolies in the field of broadcasting and distribution---Prevention of monopolies was therefore necessary as meaningful choice was only possible in the presence of genuine competition---Vertical and horizontal integration in the field would both tend to restrict choice---Pakistan Electronic Media Regulatory Authority ("PEMRA") was of the view that vertical integration, which would come about as a result of the broadcasters being allowed to also hold distribution licences, would be detrimental to the public interest in that it would stifle choice which PEMRA was mandated to encourage, therefore, to exclude such vertical integration PEMRA framed R. 13(4) of the Pakistan Electronic Media Regulatory Authority Rules, 2009, whereby a broadcaster was barred from also holding a distribution licence---Broadcasters' Fundamental Rights were not violated due to R. 13(4) as Art. 18 of the Constitution allowed for the regulation of businesses---Such regulation may be in the form of licences which carried certain conditions to protect the public interest---In the present matter, the public interest was best served by ensuring that the "media market" was one where genuine competition prevailed---Purported violation of the broadcasters' Fundamental Right to compete for and acquire a distribution licence in addition to its broadcasting licence(s) could not be used against the broader public interest of genuine healthy competition and the resultant choice---Appeals were allowed accordingly and the impugned judgment of the High Court, whereby Rr. 13(3) & 13(4) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 were declared ultra vires the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, was set aside---Rules 13(1) & 13(4) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 were not ultra vires the Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Aakshita Bansal, Vertical Integration in TV Broadcasting and Distribution Sector in India: A Competition Audit and Guidelines On The Assessment of Non-Horizontal Mergers under the Council Regulation on the Control of Concentrations Between Undertakings (2008/C 265/07) ref.

Aitzaz Ahsan, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Appellants (in C.A.700/2017).

Salman Akram Raja, Advocate Supreme Court, Ch. Munir Sadiq, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Ashfaq Jamani, Executive Member, PEMRA and Ali Zeeshan Gondal, Head Legal, PEMRA for Appellants (in C.A.701/2017).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A.702/2017).

Syed Feisal Hussain Naqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A.703/2017).

Applicant in person (in C.M.A.1407/2018).

Jan Asif Mehmood Lar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Respondent No.1 (in C.As.700, 701, 703/2017).

Respondent No.2 (in C.A.702/2017).

Ashtar Ausaf Ali, Attorney General for Pakistan and Mirza Nasar Baig, DAG on Court's Notice.

2018 S C M R 1820

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

USMAN SHAHID, MANAGER ADMINISTRATION, BOL MEDIAL NETWORK---Petitioner

Versus

MUHAMMAD SALEEM, CHAIRMAN, PEMRA---Respondent

Criminal Original Petition No. 108 in Human Rights Case No. 34069 of 2018, decided on 9th August, 2018.

(Seeking Contempt Proceedings against PEMRA for not complying with this Courts Order dated 26.6.2018)

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 23---Constitution of Pakistan, Arts. 18 & 19---Media network ratings---Anti-competitive agreement ("impugned agreement") between Pakistan Broadcasters Association ("PBA") and a private media rating company ("rating company")---Impugned agreement provided that the rating company shall not grant ratings to any channel or network which did not have membership of 'PBA'---Pakistan Broadcasters Association ("PBA") had also filed a civil suit wherein an ex parte restraining order had been passed restraining the rating company from issuing media ratings to the petitioner-media network---Neither the 'PBA' nor the rating company were interested in granting membership or rating to the petitioner-media network and were trying various methods and devices to keep it out of the market---Prima facie, the 'PBA', rating company and Pakistan Advertisers Society ("PAS") had joined hands and collusively created a cartel by creating a monopolistic market, and had used restrictive barriers, curbing free, fair and open competition---All agreements between the said parties inter se acted in tandem and were skillfully designed to create an exclusive, restrictive and monopolistic atmosphere in the market---Such acts, omission and commission, prima facie, violated and militated against Fundamental Rights guaranteed to the petitioner-media network under Arts. 18 & 19 of the Constitution which provided that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business---Supreme Court observed that ratings issued by rating companies to different media channels were fundamentally important, as it was on the basis of higher rating (which depicted higher viewership) that the advertisers placed their advertisements on media channels which generated revenue that constituted the lifeblood of private media channels, and that the Pakistan Electronic Media Regulatory Authority ("PEMRA") may consider creating its own set up to grant ratings to different channels/networks in its exalted capacity as the regulator of electronic media industry rather than outsourcing and abdicating an extremely important regulatory function in favour of private parties---Supreme Court directed that the impugned agreement between the 'PBA' and rating company shall stand suspended and during the term of its suspension it shall not have any legal effect or consequence; that said agreement shall not be binding either on the parties thereto or any third party including other media houses/channels and advertisers; that media houses/channels shall be at liberty to receive ratings from any one or more of the rating companies presently operating in the market; that the stakeholders in the market including but not limited to advertisers and media companies may deal with each other without recourse to 'PBA' and the rating company in question in an environment of free, fair and transparent competition in the market place with a level playing field for all concerned; that PEMRA shall decide the question the validity of the impugned agreement and other similar agreements mentioned in present judgment for their adherence to and compliance with the provisions of S. 23 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and Arts. 13 & 19 of the Constitution---Order accordingly.

M. Anwar Mansoor Khan, Senior Advocate Supreme Court, M. Nabeel C.E.O. BOL TV and Sami Ibrahim, Director News BOL TV for Petitioner.

Syed Nayyar Abbas Rizvi, Additional A.G.P. and M. Saleem Baig, Chairman PEMRA for Respondent.

Bahzad Haider, Advocate Supreme Court (For Medialogic).

Jam Asif Mehmood, Advocate Supreme Court and M. Ali Butt, Ex-Director, PBA (For PBA).

Shaukat Ali Chaudhry, CE, Chaudhry Multimedia Pvt. Ltd. (Applicant in C.M.A. No. 1317 of 2018).

2018 S C M R 1828

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

BOURBON MARITIME (PVT.) LTD.---Petitioner

Versus

m.v. SALAJ and others---Respondents

Civil Petition No. 661-K of 2015, decided on 12th September, 2018.

(On appeal from the judgment dated 17.10.2015 passed by the High Court of Sindh at Karachi in Admiralty Appeal No. 5 of 2006)

(a) Port Qasim Authority Act (XLIII of 1973)---

----S. 21---Sale of vessel on orders of the Court---Statutory power of Port Authority in terms of S. 21 of the Port Qasim Authority Act, 1973 to claim unpaid dues from proceeds of vessel in preference to other claims---Scope and principles---Claim of the Port Authority (under S. 21 of the Port Qasim Authority Act, 1973) could operate as a lien or right against any proceeds obtained by the Court-ordered sale of the ship in exercise of Admiralty jurisdiction---Port Authority's claim would stand transferred to, and operate against, the fund so created---Furthermore the Port Authority's claim (and the priority to be accorded to it) benefitted from, and laid against, any accretion to the sale proceeds by way, e.g., of any profits/markup earned thereon while they remained in Court pending disbursement---Official Assignee after selling the vessel should pay off the claim of the Port Authority for amounts that accrued due (whether before or after the arrest of the vessel)---Such payment would take precedence over all other claims---Where it was necessary for such priority to be maintained, the claim of the Port Authority may be regarded as being included in the expenditures of the sale, thus, if the fund proved so inadequate that even the actual sale expenditures could not be met in full, the Port Authority's claim would still have to be settled ratably with such expenditures---Port Authority's priority would still attach to the fund (the sale proceeds plus any accretions thereto) after the ship/vessel was sold---Port Authority could lodge its claim (under S. 21) with the Official Assignee even after sale of vessel, however, mere lodgment of a claim would not be sufficient; there must be some express indication therein that it was the statutory power (under S. 21) that was being exercised---Where, however, the ship had been sold and the Port Authority thereafter lodged its claim, but before that certain disbursements had been made by the Court, the priority of the Port Authority would be lost as regards the amounts that already stood disbursed---Since the purpose of both the Port Authority's statutory power and any Court-ordered sale of the ship was to generate proceeds from which claims could be settled, it would be perfectly in order for the Port Authority to be involved in any Court-ordered sale so as to ensure that the best possible price could be obtained---In determining the modalities for the appraisement and/or sale of the ship the views of the Port Authority, if such be proffered, ought to be taken into consideration---Port Authority's statutory power to detain, arrest or sell the ship would however be subordinated to any orders made by the (High) Court in exercise of its Admiralty jurisdiction, and this would be so whether the power was exercised before or after any orders of the Court or action taken by it---Port Authority must give way to, and not interfere with, obstruct or otherwise impede the acts or functions of the court official acting under Court orders or as per the practice and procedure of the Court.

The Emilie Million [1905] 2 KB 817; The Charger [1966] 3 All ER 117, [1968] 1 WLR 1707; The Queen of the South [1968] 1 All ER 1163, [1968] 2 WLR 973, [1968] 1 Lloyd's Rep. 182; The "Freightline One" [1986] 1 Lloyd's Rep. 266; Hill v. The Ship James Cook [1997] 3 NZLR 752; Ashoke Arya v. M.V. "Kapitan Mitsos" and others AIR 1988 Bombay 329; Board of Trustee, Port of Mumbai v. Indian Oil Corporation and another AIR 1998 SC 1878, (1998) 4 SCC 302; ICICI Ltd. v. Board of Trustees, Port of Calcutta (2005) 10 SCC 284 and Halsbury's Laws of England (4th Ed. Vol. 43 (Shipping and Navigation)) ref.

(b) Port Qasim Authority Act (XLIII of 1973)---

----Ss. 21 & 23---Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980), S. 3(2)---Admiralty Jurisdiction of the High Court---Scope---Statutory power of Port Authority to claim unpaid dues from proceeds of vessel in preference to other claims---Alternative remedy by filing suit where Port Authority did not use such statutory power---Purpose---Purpose of S. 23 of the Port Qasim Authority Act, 1973 (alternate remedy by suit) was to ensure that if the Port Authority did proceed to the filing of a suit without invoking the statutory power under S. 21, then it should not be disadvantaged in any way---Intent behind S. 23 was to ensure that the Authority's position, as it would have emerged had it invoked the statutory power under S. 21, was preserved---Alternative remedy of suit expressly made available by S. 23 could be regarded as coming within the scope of the last paragraph of S. 3(2) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 i.e., Admiralty jurisdiction conferred by or under the Port Qasim Authority Act, 1973---Section 23, therefore, served a dual purpose; firstly, it allowed the Port Authority to invoke the Admiralty jurisdiction of the High Court; secondly, since it was but an "alternative" to S. 21 and sought to preserve the position that would have emerged if the statutory power had been invoked, the filing of a suit under S. 23 would, in and of itself, be deemed to constitute the overt act sufficient to preserve the priority of the Port Authority's claim---Even if the Port Authority did not expressly invoke the statutory power under S. 21 but nonetheless filed a suit in respect of claims that came within the scope thereof, the suit should be regarded as being one filed under S. 23, which would have the double effect as stated---Port Authority's position vis-a-vis the ship, or any fund representing the ship, would then be maintained, which would enable the Authority, if it so desired, to act in a "sensible and business like way" and not invoke the statutory power under S. 21, without fear of losing the priority or precedence for its claim---Such analysis would apply only in respect of a claim by the Port Authority that could come within the scope of S. 21, and hence S. 23---If the Port Authority's suit included claims that did otherwise come within any of the clauses of S. 3(2) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 but not S. 21 of the Port Qasim Authority Act, 1973, then they would not be entitled to any priority or precedence.

Hong Leong Finance Ltd. v. m.v. Asian Queen PLD 1991 SC 1021 and Twaha v. The Master m.v. Asian Queen and others PLD 1982 Kar. 749 distinguished.

(c) Port Qasim Authority Act (XLIII of 1973)---

----Ss. 21 & 23---Statutory power of Port Authority to claim unpaid dues from vessel in preference to other claims---Alternative remedy of filing suit---Mark up, payment of---Scope---Markup or any equivalent charge (interest etc) was not, as such, payable under S. 21 of the Port Qasim Authority Act, 1973---Where, however, the claim was made not under S. 21 but by way of filing a suit in terms of S. 23, the Court could award markup---Where the Port Authority's suit in terms of S. 23 was decreed with markup, then for purposes of the priority over other claims a distinction must be maintained between the decreed amount on the one hand, and the markup awarded on the same; the former (decreed amount) was entitled to priority but the markup was not.

Agha Zafar Ahmed, Advocate Supreme Court for Petitioner.

Qamar-ul-Islam, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 2.

Shaiq Usmani, Senior Advocate Supreme Court as Amicus curiae.

2018 S C M R 1851

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SLACKNESS IN THE PROGRESS OF PENDING ENQUIRIES RELATING TO FAKE BANK ACCOUNTS, etc.: In the matter of

Human Rights Case No. 39216-G of 2018, decided on 5th September, 2018.

(a) Anti-Money Laundering Act (VII of 2010)---

----S. 3---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 5---Constitution of Pakistan, Art. 184(3)---Human Rights case---Fake/benami bank accounts connected with various individuals and entities used for money laundering---Formation of Joint Investigation Team ("JIT")---Federal Investigation Agency ("FIA") which was investigating the fake/benami bank accounts contended that progress of investigation was slow on account of huge quantity of electronic data that required unravelling and interpretation; that in order to conduct effective, in-depth and incisive investigations to discover the truth, a broad based, multidimensional and technically skilled team of experts was required which at present was not available with FIA; that on account of alleged involvement of high profile and powerful political and business figures with the tainted transactions, who had powerful connections within the government, investigation was being seriously hampered and at times wilfully obstructed at every stage, and that the Supreme Court should, therefore, form a Joint Investigation Team ("JIT") to investigate the present matter---Held, that record produced prima facie showed that fake accounts had been opened in various Banks in the names of persons whose Computerized National Identity Cards (CNICs) had been misused without their consent or knowledge---Many such persons appeared before the Supreme Court and categorically stated that they had no knowledge of the accounts in question---Huge sums of money running into billions had been deposited in the said accounts by or on behalf of the persons who were under investigation or entities controlled by them---After being deposited in the said accounts, such funds had either been routed to other accounts which were traceable with some due diligence or withdrawn without any ostensible trail available---Evidence of large sum of foreign exchange being routed out of the country through hawala transfers by one of the arrested suspects had added an additional dimension to the investigation---Specialized knowledge of financial transactions and expertise in identifying and tracing movement of funds through banking channels and otherwise was required, in order to conduct a proper probe and investigation in the matter---Expertise in working of companies, banking transactions, electronic transactions and cyber activities relating to money transfers was needed along with knowledge of reporting requirements and monitoring regime put in place by the State Bank---Modes of discovering and tracing suspicious transactions and modes utilized for unlawful circulation and movement of money within the country and abroad were also required---Such specialized expertise was not presently available within the FIA---In the interest of justice and to ensure that national resources and national wealth which belong to people of the country was not looted, plundered or misappropriated, a high powered and highly skilled Joint Investigation Team ("JIT") was required to be set up---Supreme Court ordered constitution of a JIT, consisting of officials from the FIA, Regional Tax Office, State Bank, National Accountability Bureau, Securities and Exchange Commission of Pakistan and Inter-Services Intelligence, for the purpose of conducting a thorough, in-depth and incisive investigation and probe into the matter of fake Bank accounts to uncover the persons involved and collect all material evidence for the purpose of ensuring that in case an offence was made out, the persons involved therein are properly prosecuted---Supreme Court directed that the JIT shall have all powers relating to inquiries and investigations including those available in the Code of Criminal Procedure, 1898, the National Accountability Ordinance, 1999, the Federal Investigation Agency Act, 1974 and the Anti-Corruption Laws, etc; that all executive authorities or agencies in the country shall render assistance and provide support to the JIT in its working, if required; that the JIT shall submit periodic reports before the Supreme Court qua the progress made in the investigation on fortnightly basis; that the Additional Director General, FIA, who shall head the JIT may co-opt any other expert who may in his opinion be necessary to complete the investigation in an effective and timely manner; that the first report of the JIT shall be filed within a period of 15 days; that in order to ensure that the investigation was conducted in a professional, transparent and effective manner, neither the JIT nor FIA nor any of the members of the JIT shall issue press releases or provide information relating to the investigation to the media; that owing to the apprehensions about the safety of the investigators, the Pakistan Rangers shall provide adequate and effective security to the investigators and to ensure that they performed their functions without any fear to their life or liberty or that of their families, and that such protection shall also upon request be provided to the witnesses.

(b) Constitution of Pakistan---

----Art. 184(3)---Suo motu jurisdiction of the Supreme Court---Scope---Formation of Joint Investigation Team ("JIT")---In appropriate cases, technical inability to undertake a complicated modern day investigation furnished a reasonable basis and justification to constitute a Joint Investigation Team.

Anwar Mansoor Khan, Attorney General for Pakistan, Syed Nayyar Abbas Rizvi, Additional AGP and Shehryar Qazi, Additional A.G.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court (for Bahria Town).

Kh. Ahmed Tariq Raheem, Senior Advocate Supreme Court and Azhar Siddique, Advocate Supreme Court (for Zain Malik).

Farooq H. Naek, Senior Advocate Supreme Court (for Asif Ali Zardari and Faryal Talpur).

Shahid Hamid, Senior Advocate Supreme Court, Ms. Ayesha Hamid, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record (for Anwar Majeed and Abdul Ghani Majeed).

Munir Ahmed Bhatti, Advocate Supreme Court (for Kh. Nimar Majeed, Kh. Mustafa Zulqarnain Majeed and Ali Kamal Majeed).

Kh. Naveed Ahmed, Advocate Supreme Court (for President Sindh Bank).

Salman Aslam Butt, Senior Advocate Supreme Court (for UBL).

Ibrar Saeed, Legal Advisor (for SECP).

Haseeb Jamali, Advocate Supreme Court and M. Qasim Mirjat, Advocate-on-Record (for Nasir Abdullah Lootha).

Abid S. Zuberi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (for Summit Bank).

Shoukat Hayat, Advocate Supreme Court and M. Qasim Mirjat, Advocate-on-Record (for Husain Lawai).

Ahmed Nawaz Chaudhary, Advocate-on-Record (for Sher Muhammad Mugheri).

Shahab Sarki, Advocate Supreme Court for Shahzad Jatoi (for A One Group).

Bashir Ahmed Memon, DG FIA, Najaf Quli Mirza, Addl. DG FIA, Monir A. Sheikh, Director FIA, Karachi, Qaiser Masood, Addl. Director, Law FIA, Mohammad Ali Abro, Asst. Director/I.O FIA Karachi, Tariq Malik, Director Law FIA and I.D Mangi, AIGP (Legal) Sindh Karachi for FIA.

Imran-ul-Haq, Sp. Prosecutor for NAB.

Jahanzeb Khan, Chairman FBR and Habibullah, Member I.R Operation FBR for FBR.

Tariq Mehmood Bajwa, Governor, Sanaullah Gondal, Director, Syed Ansar Hussain, AD and Raja Abdul Ghafoor, Advocate-on-Record for State Bank.

2018 S C M R 1860

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

GHEE CORPORATION OF PAKISTAN (PRIVATE) LTD.---Petitioner

Versus

SURAJ GHEE INDUSTRIES LTD. and others---Respondents

Civil Petition No 1621-L of 2015, decided on 24th August, 2018.

(Against the judgment dated 27.05.2015 of the Lahore High Court, Lahore passed in C.O. No. 121 of 1994)

Companies Ordinance (XLVII of 1984)---

----Ss. 305, 306, 309 & 314---Petition for compulsory winding up of a company---Maintainability---Dispute between management and purchasers of company---Purchasers filed civil suit to obtain a declaration and injunction in their favour---During pendency of suit dispute was referred for arbitration---Arbitrator issued the award which was subsequently made a rule of the court---Meanwhile the relevant Government Corporation which was in control of the company before its sale to the purchasers filed a petition for compulsory winding up of the company on the grounds that the company was unable to pay its debts, it was unable to pay salaries of its employees, it had suspended its business since May 1993 and it was just and equitable to wind up the company---High Court decided that since an award had been announced on the basis of the dispute between the parties, which had been made a rule of court, the winding up petition could not proceed---Held, that winding up petition was not filed bona fide but as a pressure tactic---Timing of filing of the winding up petition and the dispute raised therein related to the period when the petitioner (Government Corporation) was in control of the company---Disputes arose between the parties which were referred to arbitration and formed the subject matter of the award---Winding up petition had objects and purposes other than those for which the law relating to compulsory winding up had been enacted---Significantly none of the other creditors had approached the Court seeking winding up of the company---Even otherwise, winding up proceedings could not be used as a substitute to a recovery suit---Further, admittedly, the petitioner (Government Corporation) had consented to the disputes being referred to arbitration---In such circumstances, a winding up petition was not competent---Petitioner was also estopped from filing the winding up petition after having consented to getting its disputes resolved through arbitration and having freely participated in it without cavil, demure or protest---Finally, after the award was made a rule of court the petitioner ceased to have locus standi as a creditor---Petition for leave to appeal was dismissed accordingly.

Pakistan Industrial Credit and Investment Corporation Ltd. v. Premium Rubber Belting and Manufacturing Co. Ltd, Karachi PLD 1973 Kar. 326; Adage Advertising v. Shezan International Ltd. 1970 SCMR 184; Hashmi Can Company Limited v. K.K. & Co (Pvt.) Ltd. 1992 SCMR 1006 and Trade and Industry Publications Ltd. v. IDBP PLD 1990 SC 768 ref.

Shahid Hamid, Senior Advocate Supreme Court for Petitioner.

Syed Ali Zafar, Advocate Supreme Court for Respondents.

2018 S C M R 1864

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

CIVIL MISC. APPLICATION NO. 3854 OF 2014 IN S.M.C. NO.3 OF 2009

(Matter regarding non-implementation of the order of this court with respect to demarcation of property).

AND

CIVIL REVIEW PETITION NO.155 of 2015 IN CIVIL MISC. APPLICATION NO.4341 OF 2014 IN CIVIL MISC. APPLICATION NO.3854 OF 2014 IN S.M.C. NO. 3 OF 2009

AND

CIVIL REVIEW PETITION NO.156 of 2015 IN CIVIL MISC. APPLICATION NO.4341 OF 2014 IN CIVIL MISC. APPLICATION NO.3854 OF 2014 IN S.M.C. NO. 3 OF 2009.

BAHRIA TOWN through Company Secretary---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

AND

CIVIL REVIEW PETITION NO.245 OF 2013 IN S.M.C. NO.3 OF 2009

BAHRIA TOWN (PVT.) LTD. and others---Petitioners

Versus

MUHAMMAD SHAFI and others---Respondents

AND

CRIMINAL ORIGINAL PETITION NO.110 OF 2014 in S.M.C. NO. 3 OF 2009

Dr. M. SHAFIQ-UR-REHMAN---Petitioner

Versus

ABDUL QAYYUM and others---Respondents

AND

CIVIL MISC. APPLICATION NO.6807 OF 2015 IN CIVIL REVIEW PETITION NO.NIL OF 2015 IN CIVIL MISC. APPLICATION NO.3704 OF 2015 IN CIVIL MISC. APPLICATION NO.3853 OF 2015 IN CIVIL MISC. APPLICATION NO.4341 OF 2014 IN CIVIL MISC. APPLICATION NO.3854 OF 2014 IN S.M.C. NO.3 OF 2009

REVIEW ON BEHALF OF SYED ALI ZAFAR COUNSEL FOR BAHRIA TOWN---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

AND

CIVIL MISC. APPLICATION NO.6809 OF 2015 IN CIVIL REVIEW PETITION NO.NIL OF 2015 IN CIVIL MISC. APPLICATION NO.3704 OF 2015 IN CIVIL MISC. APPLICATION NO.3853 OF 2015 IN CIVIL MISC. APPLICATION NO.4341 OF 2014 IN CIVIL MISC. APPLICATION NO.3854 OF 2014 IN S.M.C. NO.3 OF 2009

REVIEW ON BEHALF OF SYED ALI ZAFAR COUNSEL FOR BAHRIA TOWN---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

AND

CIVIL REVIEW PETITION NO. 473 OF 2015 IN H.R.C. NO.4729-P OF 2011 IN S.M.C. NO.3 OF 2009

(Review Petition on behalf of Bahria Town (Pvt.) Ltd.)

AND

H.R.C. NO.4729-P OF 2011 IN S.M.C. NO.3 OF 2009

(Application by Malik Muhammad Shafi)

AND

CIVIL MISC. APPLICATION NO.3704 OF 2015 IN CIVIL MISC. APPLICATION NO.4341 OF 2014 IN CIVIL MISC. APPLICATION NO.3854 OF 2014 IN S.M.C. NO.3 OF 2009

(Reply to Show Cause Notice by Syed Ali Zafar)

Decided on 4th May, 2018.

Per Ejaz Afzal Khan, J; Faisal Arab, J agreeing; Maqbool Baqar, J dissenting.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 30 & 39---Punjab Land Revenue Rules, 1968, R. 67-A---Forest Act (XVI of 1927), S. 8(a)---Private real estate developer ("developer")---Encroachment upon forest land---Demarcation proceedings---Developer and Forest department had allegedly encroached upon each other's land---Developer contended that on the basis of demarcation proceedings an area measuring 1170 kanals of the forest land was found to have been encroached by the developer and an area measuring 765 kanals of the developer was found to have been encroached by the Forest Department; that area found to have been encroached was accepted by both parties and mutations witnessing exchange of the said areas were entered and attested; that the entry in the revenue record of 2210 acres of forest land allegedly encroached upon by the developer was incorrect---Validity---[Per Ejaz Afzal Khan (Majority view): According to the record of rights the total area of forest land was approximately 2210 acres---Said record was blessed with presumption of truth---Nothing had been brought on the record to dispute the entries appearing in the record of rights---Relevant Provincial District Gazetteer and the working plan of scrub forest of the Division amply and overwhelmingly proved that the total area of forest land was 2210 acres---Demarcations proceedings forming basis of the demarcation reports were not conducted in accordance with undisputed entries of the record of rights---Similarly, the settlements arrived at between the Forest Department and the developer culminating an exchange could not be vested with any sanctity and even finality when the entire proceedings from the inception to the end were based on misrepresentation, erroneous assumption about the area and non-reading of the record in its correct perspective---Such proceedings even otherwise could not be vested with any sanctity when the revenue staff and officials of the Forest Department defended the interest of the developer with much greater tenacity than the developer itself---Supreme Court declared that the area of forest was 2210 acres; that exchange of land purportedly encroached by the developer and the Forest Department and attestation of mutations in such behalf being based on erroneous assumption about the area was against law and the record and as such of no effect---Supreme Court directed that the Forest Department, Revenue Department and Survey of Pakistan shall conduct a fresh demarcation after giving notices to Forest Department and the developer and submit their report within one month before the implementation Bench of the Supreme Court constituted by the Chief Justice; that if any third-party interest had been created over the forest land then the implementation Bench shall decide how to deal with the same, and that the National Accountability Bureau (NAB) shall investigate the present case and file references against all those who were found responsible for committing, aiding and abetting the crime at any level or in any form---[Per Maqbool Baqar (Minority view): Relevant District Gazetteer and the working plan of scrub forest of the area showed that the total area of forest was 2210 acres, whereas according to the 'Massavi' of the forest the total area was 1741 acres and not 2210 acres---Except for the demarcation that formed basis of the settlement between the parties, culminating into exchange of land, no demarcation and/or measurement of the forest land had physically been carried out so far---District Gazetteer and working plans of the forest alone could not be relied upon for determining the prescribed/ designated area of the forest, when on the one hand, the same were inconsistent to and in conflict with the relevant Massavi and on the other, the entries in the said documents were not supported by any actual measurement done before affecting the same---No field book or any other material had been produced to verify the entries---No record of rights either in respect of the forest or any other Mouzahs, surrounding the forest, had been produced, which could have been helpful in determining the area of the forest and the Mouzahs surrounding it, to a great extent---On the other hand, the Massavi clearly showed the boundaries of the forest---Authenticity or veracity of the Massavi had not been challenged by anybody, nor had the Provincial Government alleged any defect and/or deficiency therein---In such circumstances it was appropriate to leave the present controversy to be resolved by the forums having jurisdiction, which were already seized of the matter by way of two suits and a petition, and more so, when a Bench of the Supreme Court, in a connected suo motu case had already decided not to make any determination regarding the rights and title of the parties in respect of the subject land and to leave it to the relevant forums to decide the same after recording evidence---His Lordship directed the relevant courts seized of the pending suits to decide the same expeditiously, with the exception that the Bench of the High Court shall dispose of the petition pending before it regarding the exchange mutations at the earliest].

Ali Zafar, Zahid Nawaz Cheema, Advocates Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in C.R.Ps.155-156/15 and C.M.As. 6807 and 6809/15).

Syed Zahid Hussain Bokhari, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in C.R.P.245/13).

Dr. M. Shafiq-ur-Rehman, in person (in Crl. O. P. 110/14).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in C.R.P.473/15).

Malik M. Shafi, in person (in H.R.C. 4729-P/11).

Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in C.M.A. 3704/15).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.M.A.3854/14 and H.R.C.4729-P/11).

Syed Rifaqat Hussain Shah, Advocate-on-Record, Hafiz Hifz-ur-Rehman, Advocate Supreme Court and Zahid Hussain Bokhari, Advocate Supreme Court for Respondents (in Crl. O. P. 110/14).

Razzaq A. Mirza, Addl. A. G. Punjab. for Government of Punjab (in all cases).

Sajid Ilyas Bhatti, DAG, assisted by Barrister Asad Rahim Khan, Barrister Minael Tariq and Mirza Moiz Baig, Advocate for Federation of Pakistan (in all cases).

2018 S C M R 1885

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed and Ijaz-ul-Ahsan, JJ

SAIF-UR-REHMAN---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH and 2 others---Respondents

Civil Appeal No. 14-L of 2013, decided on 17th April, 2018.

(On appeal from the order dated 27.3.2012 of the Lahore High Court, Lahore, passed in W.P. No. 4144 of 2010)

(a) Interpretation of statutes---

----Purposive interpretation---Purposive rather than a literal approach to interpretation was to be adopted while interpreting statutes---Interpretation which advanced the purpose of the Act was to be preferred rather than an interpretation which defeated its objects.

Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 and Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90 ref.

(b) Interpretation of statutes---

----Beneficial provisions in a statute---Such provisions must be interpreted liberally in a manner so that the benefit conferred was advanced rather than frustrated or subverted.

Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others PLD 2000 SC 207 and Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and 2 others 1992 SCMR 2166 ref.

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

----S. 14(2)---Suit for return of dowry articles---Amount decreed by the Trial Court less than the amount mentioned under S. 14(2) of the Family Courts Act, 1964 (i.e. Rs. 100,000)---No embargo on wife to file appeal against such decree---Only possible purposive and rational interpretation of S. 14(2) of the Family Courts Act, 1964 was that the right of appeal of a husband against whom a decree had been passed was curtailed, if the amount awarded was less than the amount mentioned in the said section---However, in no event the right of the wife to file an appeal was extinguished if she was dissatisfied with any decree in a suit for dower or dowry articles---Section 14(2) of the Family Courts Act, 1964 could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry had been partially or entirely declined---Such an interpretation would defeat the purpose and object of the Family Courts Act, 1964 and frustrate its beneficial nature.

Ghulam Rasool v. Senior Civil Judge and 4 others 2008 CLC 775; Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 and Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 ref.

Sarfraz Khan Gondal, Advocate Supreme Court for Appellant.

Mian Shah Abbas, Advocate Supreme Court for Respondent No.3.

2018 S C M R 1891

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

PAKISTAN BAR COUNCIL through Chairman and others---Petitioners

Versus

FEDERAL GOVERNMENT through Establishment Division and others---Respondents

Constitutional Petition No. 134 of 2012 and Civil Misc. Application No.1864 of 2010 in Constitutional Petition No. 9 of 2005 and Civil Misc. Applications Nos. 1939 of 2014, 5959 of 2016, 4095, 1793, 2876, 2996, 3014 and 6672 of 2018 in Constitutional Petition No. 134 of 2012 and Civil Misc. Applications Nos. 3034, 3048, 3051 and 6247 of 2018 in Civil Misc. Application No. 1864 of 2010, decided on 31st August, 2018.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 13(1)(j)---Pakistan Bar Council Legal Education Rules, 2015, Chapts. II, IV, V & VI---Professional standards of legal education---Criteria for recognition of degree awarding institutions and for affiliation of law colleges---Eligibility for admission to LL.B programme---Supreme Court observed that an independent, competent, honest and industrious Judicature required an equally independent, dynamic, honest and dedicated Bar in order to effectively provide justice in accordance with law to all members of the society, and that standards of proficiency for entry to the Bar was regulated by Legal Practitioners and Bar Councils Act, 1973 ("Act"), however careful monitoring, supervision and enforcement of such standards had been lacking due to complacency and neglect---Supreme Court issued a number of directions regarding entrance exams for the Bar and law colleges; ban against conducting law classes by certain institutions; ban on mushroom admissions to post-graduate law programmes; ban on admission to 3 years LL.B programme and holding of evening classes; designation of curriculum for the LL.B programme; qualification of faculty members at law colleges; constitution of Affiliating Committees for law colleges; introduction of Special Equivalence Examination for law graduates of foreign universities; introduction of a two weeks training Bar Vocational Course; allocation of funds in Federal and Provincial budgets for promotion of legal education; salary package and payment of non-practicing allowance for permanent law faculty members; assessment/evaluation of LL.B examination; establishment of autonomous Secretariat/Directorate of Legal Education in the Pakistan Bar Council; immediate closing down of unauthorised law colleges; disaffiliation of sub-standard law colleges; accommodation of law students in eventuality of disaffiliation of law colleges; law departments of Universities and law colleges which needed to show improvements within six months---Supreme Court further directed that any university or affiliated college that was aggrieved by a final order/action taken in pursuance of said directions after exhausting any remedy under the University Rules shall avail as the first judicial remedy, appropriate relief from the Supreme Court, and that recourse to any other judicial forum without permission of the Supreme Court was barred---Constitutional petition along with applications was disposed of accordingly.

Pakistan Bar Council v. The Federal Government and others PLD 2007 SC 394 ref.

Hamid Khan, Senior Advocate Supreme Court, M. Anwar Kamal, Senior Advocate Supreme Court, Zafar Iqbal Kalanori, Advocate Supreme Court, Muhammad Arshad, Secy. PBC, Muhammad Ahsan Bhoon, Advocate Supreme Court and M. Shoaib Shaheen, Advocate Supreme Court and Ch. Zulfiqar Ahmed Khan, Advocate Supreme Court in attendance.

Ms. Bushra Qamar, Advocate Supreme Court for Chairperson Executive Committee, Punjab Bar Council.

Bilal Ahmed Qazi, Advocate Supreme Court for Islamia University BWP.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M. Akhtar Ali, Advocate Supreme Court for K.P. Private Law Colleges.

Zafar Iqbal, Ch. Advocate Supreme Court for Topper Law College.

Rai Bashir Ahmed, Advocate Supreme Court (in C.M.As. 1844 and 6247/2018).

Rai M. Nawaz Kharral, Advocate Supreme Court (in C.M.A. No. 6722/18).

Zafarullah Khan Khakwani, Advocate Supreme Court, Dr. Amanullah, Chairman, Affiliation Committee, BZU and Ch. Muhammad Umar, Registrar BZU for BZU.

Munir Ahmed Khan Kakar, Advocate Supreme Court and Raja Abdul Rehman, Advocate Supreme Court for Zargoon Law College.

Riasat Ali Azad, Advocate Supreme Court for Alfalah Law College/Kashmor Law College.

M. Ikram Chaudhry, Senior Advocate Supreme Court (in C.M.As.4012 and 4013/2018).

M. Qasim Mirjat, Advocate-on-Record (in C.M.A.4094/2018).

Junaid Akhtar, Advocate Supreme Court (in C.M.A.2996/2018).

Waseem-ud-Din Khattak, Advocate Supreme Court for University of Peshawar.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Pakistan College of Law.

M. Amin Sandhela, in person (in C.M.A. 1793/2018).

Fawad Saleh, Advocate Supreme Court for Coles Law College.

Shaukat Ali, Principal Shaheed Benazir Bhutto Law College, Nausheroferoz.

Abdul Ali, Owner of Ali Law College Sanghar, Sindh (in C.M.A. 6898/18).

M. Faseeh ud Din Wardag, Advocate Supreme Court for Jalawan Law College, Khuzdar.

Amanullah Qazi, Director, Intelligence Law College, Moro, Sindh, Faisal Javed, VC School of Law, Lahore, Hassan Fareed, Legal Advisor, University of Management and Technology, Lahore.

Saleem Akhtar Warraich, Advocate Supreme Court, Aftab Sohail, College of Law, Gujranwala and M. Afzal Khan, Advocate Supreme Court for Pakistan Law College, Lahore.

Nafeer A. Malik, Advocate Supreme Court Principal Quaid-e-Azam Law College, Lahore.

Rana Ali Akbar, Advocate for Topper Law College.

Mushtaq Ahmed Mohal, Advocate Supreme Court, Sh. Irfan Akram, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Institute of Law.

Ahmed Qayyum, Advocate Supreme Court for Lahore Law College.

Abbas Mirza, Advocate Supreme Court for Farabee Law College.

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Punjab University.

Anwar ul Haq Pannu, Advocate Supreme Court, Qaiser Amin Rana, Advocate Supreme Court, Mian Tariq Manzoor, Advocate Supreme Court, Sardar Muhammad Aslam, Advocate Supreme Court, Faiz Ahmed Jandran, Advocate Supreme Court.

Kifayat Ali Jaskani, Principal Shan-e-Ali Law College, Tando Adam.

Barrister Adnan Sheikh, Advocate Supreme Court for Topper Law College, Lahore.

Mushtaq Ahmed Mohal, Advocate Supreme Court for PSC.

Malik Matiullah, Advocate Supreme Court for Asian Law College.

Malik Anique Khattana, Advocate Supreme Court (in C.M.A.3046/18).

Rana M. Arif, Advocate Supreme Court (in C.M.A. 2475-L of 2018).

Ashfaq Bhullar, Advocate Supreme Court and Rai M. Nawaz Khan Kharral, Advocate Supreme Court for Qarakuram Law College/CMA-6722/18.

Usama Shafique, Assistant Registrar, University of South Asia.

Sajid Ilyas Bhatti, Addl.Attorney General for Pakistan assisted by Barrister Menal Tariq, Qasim Ali Chohan, Addl. A.G. Pb., Shehryar Qazi, Addl. A.G. Sindh, Malik Akhtar Hussain Awan, Addl. A.G. KP, Ayaz Swati, Addl. A.G. Balochistan, Syed Naveed Abbas, Advocate Supreme Court, Aftab Mustafa, Advocate Supreme Court for Respondent No. 7 on Notice.

Waseem Hashmi, Advisor, HECP, Asif Munir, Director, HECP and Raja Abdul Ghafoor, Advocate-on-Record for HECP on Notice.

2018 S C M R 1944

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and another---Appellants

Versus

ZAEEM AZIZ QURESHI and another---Respondents

Civil Appeals Nos. 144-K and 145-K of 2016, decided on 6th September, 2018.

(Against the judgment dated 02.11.2015 passed by High Court of Sindh, Karachi in C.P. No. D-1595 of 2005)

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

----Ss. 3(1) & 8---Employee of National Airline Corporation ('Corporation')---Financial impropriety---Compulsory retirement from service---Competent authority---Independent decision/opinion of competent authority---Scope---Plea of employee that the decision to compulsorily retire him from service was not taken independently by the competent authority/Chairman---Validity---Decision was taken by the Chairman and CEO in presence of the other members of the Board of Directors and minutes of the meeting were duly signed by the Chairman and CEO---Even otherwise the Chairman had independently endorsed the decision of compulsory retirement of employee at the footnote of the minutes of the meeting, which was substantial compliance of subsection (1) of S. 3 of the Removal from Service (Special Powers) Ordinance, 2000---Employee was not able to point out any prejudice caused to him by the order of competent authority taken in the Employee Leadership Team meeting, meaning thereby the decision was even concurred by a larger and higher forum, and was communicated by H.R. Manager which practice was common in a corporate environment---Even in the representation made by the employee impugning decision of the competent authority he admitted that order was made by a competent authority---Appeal was allowed accordingly.

Maharashtra State Mining Corporation v. Sunil son of Pundikarao Pathak (2006) 5 Supreme Court Cases 96; GOA Shipyard Ltd. v. Babu Thomas (2007) 10 Supreme Court Cases 662 and Balbir Chand v. Food Corporation of India Ltd. (1997) 3 Supreme Court Cases 371 ref.

Khalid Javed, Advocate Supreme Court for Appellants (in C.A. No.144-K of 2016).

Salahuddin Ahmed, Advocate Supreme Court for Appellant (in C.A. No. 145-K of 2016).

Salahuddin Ahmed, Advocate Supreme Court for Respondent (in C.A. No.144-K of 2016).

Khalid Javed, Advocate Supreme Court for Respondents (in C.A. No. 145-K of 2016).

2018 S C M R 1952

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SHER BAZ KHAN GAADHI---Petitioner

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Petition No. 2607 of 2018, decided on 5th July, 2018.

(Against the judgment dated 28.6.2018 of the Lahore High Court, Lahore, passed in Writ Petition No. 222355 of 2018)

(a) Constitution of Pakistan---

----Art. 63(1)(c)---Representation of the People Act (LXXXV of 1976), S. 12(2)(a)---Candidate contesting General Elections---Nomination papers, rejection of---Dual citizenship---Submitting false affidavit with respect to dual citizenship---Record indicated that the respondent-candidate submitted his nomination papers on 10.6.2018 and filed the relevant affidavit in such regard on 11.6.2018---Two days later, he renounced his foreign citizenship on 13.6.2018---On the day the respondent filed his nominated papers he had not renounced his foreign citizenship and was a foreign citizen---Even, if it was assumed that the application of renunciation of foreign citizenship had been filed earlier, no disclosure of the same had been made by the respondent in the relevant column of the affidavit---Respondent had filed a false affidavit and made a false declaration on oath, therefore, he was disqualified from contesting elections---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S. 12(2)(a)---Candidate contesting General Elections---Nomination papers, rejection of---Failure to disclose expenses incurred on foreign travel---Affidavit that had to be submitted along with nomination papers required a candidate to disclose his foreign travels during the last three years and the costs incurred thereon---Respondent-candidate crossed out the column on the affidavit requiring details of such travels and their costs---Report submitted before court by the relevant Authority showed that the respondent had a rich travelling history during the last three years---Respondent did not deny his travel history but tried to argue that at the relevant time he was a foreign national and thus not required to disclose his travel history---Such argument could not be accepted by the court---Respondent deliberately concealed his travel history in the relevant affidavit at the time of filing his nomination papers---Respondent concealed material facts under oath which he was required to disclose in his nomination papers/affidavit, therefore, he was disqualified from contesting elections---Appeal was allowed accordingly.

Barrister Haris Azmat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

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

M. Arshad, D.G. Law, ECP for Respondent No. 2.

2018 S C M R 1956

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Mushir Alam and Sajjad Ali Shah, JJ

CIVIL APPEALS NOS.3 AND 4 OF 2018 AND

(On appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A. No.98703/2017)

CIVIL PETITION NO.3412 OF 2017 AND

(On appeal from the judgment/order dated 28.08.2017 passed by the Islamabad High Court, Islamabad in W.P.2975/2016)

CIVIL PETITIONS NOS.45 AND 64 TO 70 OF 2018

(On appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A.98703/2017)

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and 3 others---Appellants/Petitioners

Versus

MUHAMMAD FAHAD MALIK and 10 others---Respondents

Civil Appeals Nos. 3, 4 of 2018, 3412 of 2017 and Civil Petitions Nos.45, 64 to 70 of 2018, decided on 12th January, 2018.

(a) Constitution of Pakistan---

----Arts. 70, 75 & 154 & Fourth Sched. Parts. I & II---Pakistan Medical and Dental Council (Amendment) Ordinance (III of 2014), Preamble---Pakistan Medical and Dental Council (Amendment) Ordinance (XI of 2015), Preamble---Council of Common Interest, powers of---Scope---Council of Common Interest ("CCI") had no role in the legislative process with respect to the matters enumerated in the Federal Legislative List, rather it was restricted to formulation and regulation of policies in relation to the said matters, and that too contained only in Part II of such List---Once policies were finalized, CCI could not interfere in the legislative process, nor could any legislation be struck down for the reason that CCI was not involved in the relevant legislative process---Additionally, CCI could exercise supervision and control over the related institutions but not over Parliament, which according to the scheme of the Constitution was supreme and all the other institutions had to function whilst remaining within their constitutional domain---Parliament, without any restriction or constraint, had absolute and unfettered authority to make laws with respect to the matters enumerated in the Federal Legislative List, without requiring any approval or assent from any forum or authority in the country, including CCI (except Presidential assent in terms of Art. 75 of the Constitution)---Pakistan Medical and Dental Council (Amendment) Ordinance, 2014 and Pakistan Medical and Dental Council (Amendment) Ordinance, 2015, therefore, were not invalid on the ground that they were not laid before CCI before promulgation.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 33---Constitution of Pakistan, Arts. 70, 75 & 154 & Fourth Sched. Parts. I & II---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016 ("the Regulations")---Council of Common Interest ("CCI"), powers of---Scope---Question as to whether approval of CCI was necessary before making the Regulations---Held, that Parliament, by means of S. 33(1) of the Pakistan Medical and Dental Council Ordinance, 1962, had authorized Pakistan Medical and Dental Council (PMDC) to make regulations with the prior approval of the Federal Government on the matters enumerated therein---Through S. 33(2) of the Ordinance, Parliament had allowed PMDC to make Regulations on its own accord without the prior approval of the Federal Government on the matters provided therein---Such powers had been granted to PMDC by Parliament, the supreme law-making authority---Parliament had the absolute authority to make laws and the approval of CCI was not required in such regard---Similarly, Regulations promulgated in exercise of delegated powers available under the parent statute also did not require the approval of CCI.

(c) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 33---Pakistan Medical and Dental Council ("PMDC")---Power to make Regulations pertaining to centralized admission programme---Scope---Pakistan Medical and Dental Council was authorized to monitor the whole process of admission which included, particularly, the centralized admission program at the Provincial level and any Regulations promulgated on such matter shall neither be beyond the authorized mandate of PMDC under the Pakistan Medical and Dental Council Ordinance, 1962, nor inconsistent with the intent thereof.

(d) Constitution of Pakistan---

----Arts. 89 & 264---General Clauses Act (X of 1897), Ss. 6 & 6A---Ordinance promulgated by the President amending an Act of Parliament---Expiry of amending Ordinance---Effect---Article 89 of the Constitution, provided that every Ordinance shall stand repealed on the expiration of 120 days from its promulgation or upon the passing of a resolution disapproving it if passed by the National Assembly or either House (as the case may be) before the expiration of that period---However, the National Assembly or either House (as the case may be) may by a resolution extend, only once, the Ordinance for a further period of 120 days---Any amendment/insertion/substitution made by an amending Ordinance to a statute/Act of Parliament would only be for a limited period of 120 or at the most 240 days, unless provided permanency by Parliament by making it (the amending Ordinance) an Act of Parliament---Any amendment/insertion/introduction made by an amending Ordinance would not survive after its lapse/repeal.

Gooderham and Works Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90; Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Government of Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others 1992 SCMR 602 and Muhammad Arif and another v. The State and another 1993 SCMR 1589 ref.

(e) Constitution of Pakistan---

----Art. 89--- Power of the President to promulgate Ordinances---Scope---Re-promulgating identical or somewhat identical Ordinances---Re-promulgation of Ordinances, especially when the earlier ones were either not approved or disapproved by Parliament, was a fraud on the Constitution and a subversion of democratic legislative processes.

(f) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 3 & 33---Constitution of Pakistan, Art. 89---Pakistan Medical and Dental Council (Amendment) Ordinance (III of 2014), Preamble---Pakistan Medical and Dental Council (Amendment) Ordinance (XI of 2015), Preamble---MBBS and BDS (Admissions, House job and Internship) Regulations, 2016---Pakistan Medical and Dental Council (PMDC) and its Executive Committee, dissolution of---Constitution of an Ad hoc Council and Executive Committee---Any amendment/ insertion/substitution made by the Pakistan Medical and Dental Council (Amendment) Ordinance, 2014 and Pakistan Medical and Dental Council (Amendment) Ordinance, 2015 ("the Amending Ordinances") in the Pakistan Medical and Dental Council Ordinance, 1962 ("the Ordinance") did not survive after the Amending Ordinances lapsed/were repealed, and the Ordinance stood revived---Since the Amending Ordinances had lapsed/been repealed therefore the Council constituted thereunder had ceased to exist with effect from 25-4-2016---Furthermore the MBBS and BDS (Admissions, House job and Internship) Regulations, 2016 framed under S. 33 of the Ordinance by the Council constituted under S. 3 thereof, both of which were substituted by the Pakistan Medical and Dental Council (Amendment) Ordinance, 2015, also ceased to exist having been illegally and invalidly framed---Supreme Court directed that in the facts and circumstances, the various actions/activities/orders/decisions etc. taken in the ordinary day-to-day business by the earlier Council, were protected under the de facto doctrine, until reviewed, revised, amended or modified by the new Council to be constituted after fresh elections were conducted; that an Ad hoc Council shall remain functional and intact after which fresh elections shall be conducted in accordance with law, and in the meantime, the present Registrar of Pakistan Medical and Dental Council (PMDC) shall continue to work till an appropriate order was passed in such behalf by the President of PMDC; that the Ad hoc Council may re-visit the relevant law/policies/rules/regulations etc., and any actions/activities/orders/decisions etc. taken by such Council till its termination/dissolution shall be legal and valid for all intents and purposes; however, in case any issue arises in such regard, for resolution thereof, an appropriate application may be filed before the Supreme Court.

(g) Constitution of Pakistan---

----Art. 189---Judgment of the Supreme Court---Prospective effect---Scope---Judgments of the Supreme Court, unless declared otherwise, operated prospectively

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record assisted by Syed Faraz Raza, Moazzam Habib and Miss Marium Rauf, Advocates for Appellants/Petitioners (in C.As.3 and 4/2018 also in in C.Ps. 64 to 70 of 2018).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Sardar Shahbaz Ali Khan and Ms. Naz Gul Shah, Advocates for Appellants/Petitioners (in C.P. 3412 of 2017).

Ch. Muhammad Ashfaq Bhullar, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record assisted by M. Dastagir, Advocate for Appellants/Petitioners (in C.P.45/2018).

Respondent in person along with father (for respondent No.1 in C.A.3 of 2018).

Munawar-us-Salam, Advocate Supreme Court, Barrister Tariq Saeed Rana, Legal Advisor, Shalamar Medical College, Lahore for Respondent No.8 (in C.A.3 of 2018).

Syed Ali Zafar, Advocate Supreme Court, Munawar-us-Salam, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court for Respondent No.1 (in C.A.4 of 2018).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.2 (in C.P.3412 of 2017).

Commander (R) Farasat Ali, Deputy Registrar, NUMS for Respondent No.6 (in C.A.3 of 2018).

Ahsan Masood, Legal Advisor, CMH Lahore Medical College for Respondent No.7 (in C.A.3 of 2018).

Dr. Arshad Ali Khan, AMS + Usman Rana, Litigation Officer, Ch. Muhammad Attique, Legal Advisor, UHS for Respondents Nos.3 and 4 (in C.A.3 of 2018).

Ashtar Ausaf Ali, Attorney General for Pakistan, Muhammad Waqar Rana, Addl. A.G.P., Ch. Aamir Rehman, Addl. A.G.P., assisted by Asad Rahim Khan, Arsal Amjad Hashmi and Usama Rauf, Advocates for the Federation.

Dr. Asim Hussain on Court's Notice.

2018 S C M R 1991

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

Mst. MADIHA YOUNUS---Petitioner

Versus

IMRAN AHMED---Respondent

Civil Petition No. 39-K of 2018, decided on 3rd September, 2018.

(Against the judgment dated 6.12.2017 passed by High Court of Sindh, Karachi in C.P. No. S-2210 of 2017)

Guardians and Wards Act (VII of 1890)---

----S. 25---Custody of minors---Compromise/agreement between parents---Custody with mother---Visitation rights of father---Maintenance of minors---Comprehensive plan for custody, visitation rights and maintenance of minors, and obligations of both parents issued by the Supreme Court listed.

Supreme Court issued the following comprehensive plan with regard to custody, visitation rights and maintenance of minors, and obligations of both parents:

(i) Both the minors shall remain with the mother.

(ii) On every alternate weekend minors may reside with the father, who shall pickup the minors from the house of the mother on Friday at about 8:00 p.m. late evening and shall drop the minors at the house of the mother on Sunday by 01:00 p.m. in the afternoon.

(iii) During summer vacations the custody of the minors shall be handed over to the father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the mother at evening on the 4th Sunday during the vacations so that minors may have four weeks to spent with their father

(iv) Winter vacations were generally due from 21st December to 30th December. First week of the winter vacation shall be spent by the minors with their father and second week with the mother.

(v) During Eid-ul-Fitr the minors shall celebrate Eid with their father from chand raatat 8:00 p.m. till second day of Eid upto 08:00 p.m.

(vi) On Eid-ul-Adha the mother shall allow the minors to celebrate Eid with their father who shall pick the minors from the residence of mother on the second day of Eid-ul-Adha at 11:00 a.m. in the morning till 3rd day of Eid at 10:00 p.m. or earlier.

(vii) Minors may spent alternate unscheduled holidays with their father from 10:00 a.m. to 08:00 p.m. in the evening.

(viii) The father shall bear all expenses of the minors i.e. school fees, uniforms, van fees as well as other miscellaneous expenses as may be needed for the minors.

(ix) In addition to such expenses the father shall also provide a sum of Rs.5,000/- per month for each minor for their other personal needs and requirements.

(x) In case there was any family occasion for which the father desired and wished that his sons may also attend, he shall inform the mother who shall not unreasonably stop the minors from attending such family events and/or functions.

(xi) Both the mother and father shall not do any act that may prejudice the minors' mind towards the other parent.

Syed Ehsan Raza, Advocate Supreme Court for Petitioner.

Ishaque Sathi, Advocate Supreme Court for Respondent.

2018 S C M R 1995

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

MUHAMMAD RASHID BHATTI---Petitioner

Versus

The DIRECTOR GENERAL FIA, HEADQUARTERS, ISLAMABAD and others---Respondents

Civil Petition No. 631-K of 2016, decided on 21st December, 2017.

(Against the judgment dated 14.07.2016, passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.151(K)CS/2010)

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

----R. 3(c)---Fundamental Rules, Pt. II, R. 17(1), proviso---Inter-se seniority---Grant for seniority in case of supersession and subsequent promotion---Petitioner, who was working as sub-inspector in BPS-14 in the Federal Investigation Agency, was superseded by several sub-Inspectors of BPS-14 on two separate occasions---Such supersession was not challenged by the petitioner at that time---Subsequently the petitioner was promoted as Inspector (BPS-16) and on assumption of such promoted office, he made representation to the department for inter-se seniority as Inspector (BPS-16)---Service Tribunal declined request of petitioner for inter-se seniority by observing that he was considered twice for promotion by the Department Promotion Committee, but superseded on each occasion by the Committee on account of many factors; that such supersession was approved by the Department Promotion Committee in its successive meetings and resultantly the petitioner could not regain his inter se seniority---Plea of petitioner that proviso to R. 17(1) of Fundamental Rules made express provision for granting of seniority in case of supersession and subsequent promotion---Validity---Proviso to R. 17(1) provided for a situation where the civil servant who was entitled to be promoted from a particular date but for no fault of his own was wrongfully prevented from rendering services in the higher post was to be paid the arrears of pay and allowances of such higher post through proforma promotion or upgradation by ante-dated fixation of seniority---Present case, however, was neither of a tenure post nor a deferment case nor that of petitioner being not promoted from a particular date for no fault of his own---Petitioner was deliberately superseded and such supersession was also endorsed by the Departmental Promotion Committee---Rule 17(1) of Fundamental Rules as relied upon by the petitioner therefore, was not applicable to the facts and circumstances of the present case---Petition for leave to appeal was dismissed and leave was refused accordingly.

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

----S. 3(2)---Constitution of Pakistan, Art. 212(3)---Appeal against judgment of Service Tribunal before the Supreme Court---Pleadings---Scope--- Contention challenging vires of a service rule not raised before the Service Tribunal raised for the first time before the Supreme Court---Such plea could not be allowed by the Supreme Court.

Sanaullah Noor Ghouri, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Asim Mansoor Khan, D.A.G. for Respondents.

2018 S C M R 1998

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Faisal Arab, JJ

SECRETARY ESTABLISHMENT DIVISION and others---Petitioners

Versus

Dr. IMDAD ALI RAZA SEEHAR---Respondent

Civil Petition No. 589 of 2017, decided on 1st March, 2018.

(On appeal against the judgment dated 9.1.2017 passed by the Federal Service Tribunal, Karachi in Appeal No. 92/(K)CS/2013)

Civil service---

----Removal from service---Absence from duty---Unblemished service of more than 21 years---Effect---Removal from service converted to compulsory retirement---Respondent-employee at the relevant time was eligible to avail leave with full pay for upto 387 days and extraordinary leave up to five years, but without extension of leave he could not stay away from his duty even for a day let alone weeks and months---Respondent went abroad for higher education and then his mother allegedly fell ill for which the respondent required extension in his extraordinary leave---Questions whether respondent's mother was suffering from a disease which was incapable of being treated in the country and if he was alone in the family to attend to his mother had not been answered---Respondent, in the circumstances, could not go unpunished, but at the same time his unblemished service of more than 21 years could not be allowed to go unrequited---Supreme Court converted respondent's removal from service into compulsory retirement, and observed that it had become routine for high ranking officers to go abroad on different pretexts and stay there for good without knowing that their country, which had spent a great deal on them while holding examination for Civil Superior Service and providing them training in the academies, needed their undivided and whole hearted service more than any other entity; and that such a casual and even callous attitude towards the civil service could not be ignored lightly.

Rashid Hafeez, DAG for Petitioners.

Abid S. Zuberi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent.

2018 S C M R 2001

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

CONSTITUTION PETITION NO.57 OF 2016

(Under Article 184(3) of the Constitution)

AND

C.M.A. NO.681-K OF 2018 IN CONST. P. NO.57 OF 2016

(Application for amendment of petition)

AND

C.R.P. NO. 440 OF 2016 IN C.M.A. NO. 5135 OF 2016

IN C.R.P. 142 OF 2015 IN CONST. P. NO. 104 OF 2011

(On review of this Court's order dated 24.8.2016 passed in

C.M.A. No. 5135/2016)

AND

CONSTITUTION PETITION NO. 24 OF 2018

(Under Article 184(3) of the Constitution)

AND

HUMAN RIGHTS CASE NO. 30998-S OF 2018

(Regarding shortage of water supply in Karachi)

AND

HUMAN RIGHTS CASE NO. 50363-P OF 2010

(In the matter regarding acute shortage of water supply in Karachi)

AND

CONSTITUTION PETITION NO. 37 OF 2018

(Under Article 184(3) of the Constitution)

AND

CONSTITUTION PETITION NO. 38 OF 2018

(Under Article 184(3) of the Constitution)

Barrister ZAFARULLAH KHAN and others---Petitioners/Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Decided on 4th July, 2018.

(a) Constitution of Pakistan---

----Art. 9---Right to water---Right to life---Scope---Right to clean water stemmed from the right to life enshrined in the Constitution as a Fundamental Right---Water was a resource to which everyone was entitled, and it was indispensable to those who wished to lead a dignified life---Access to water formed the basis of many other rights including the right to life, health and quality of life.

General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2061; Suo Motu Case No.10 of 2010 (Contamination of Water of Mancher Lake due to Disposal Effluent from MNV Drain now converted into RBPOD) 2011 SCMR 73 and Shahab Utso v. Government of Sindh through Chief Secretary and others 2017 SCMR 732 ref.

(b) Constitution of Pakistan---

----Arts. 9 & 184(3)--- Water scarcity--- Conservation of water---Construction of Diamer Bhasha Dam and Mohmand Dam---Establishment of an account for donations for construction of dams---All economies of the world were dependent upon water as a resource for the livelihood of its people and for their sustained development---Need for water reservoirs was not only expedient but also sine qua non for the survival of the people and economy of the country---Importance of water could never be overstated for an agrarian economy, like Pakistan, particularly when it relied upon a single river and its tributaries, as its source, to cater almost all of its water requirements---Pakistan faced a water crisis and it was pertinent that it immediately began to adopt measures to solve the problems that contributed to water scarcity---Experts on the subject were unanimous that the Diamer Bhasha Dam and Mohmand Dam must be built on urgent basis by the Federal Government and in such regard there was no dispute or discord of any nature amongst the Provinces---As custodians of the Constitution, the judiciary must ensure that the right to water was enforced, particularly considering the grim and precarious situation that the country was in at the moment---Supreme Court directed the Federal and Provincial Governments, the Water and Power Development Authority (WAPDA) and all the executive authorities in the country who were responsible or had nexus/connection with the building of the Diamer Bhasha Dam and Mohmand Dam and all matters connected thereto, to take all necessary steps for the commencement of construction and early completion of said dams; that a comprehensive report in such regard with detailed timelines and milestones shall be submitted to the Supreme Court within a period of three weeks by an Implementation Committee headed by the Chairman WAPDA and for the time being comprising experts and officials of the Federal and Provincial Governments including certain other officials; that an account shall be established for the time being in the name of the Registrar of the Supreme Court for collecting funds donated by the people of the country for the construction and establishment of the dams; that the funds in the said account shall be utilized solely for the construction and establishment of the dams and shall for the time being be operated under the orders of the Supreme Court on the recommendations of the Implementation Committee; that the funds in the account shall not under any circumstance or for any reason be diverted or utilized for any purpose other than the construction of the dams; that monies shall only be released from the fund account as reimbursements to the Government at the brick and mortar stage of the project rather than as direct payments to consultants or contractors and/or executing agencies; that such payments shall be made after the corresponding bills/payment certificates and the works carried out had been strictly verified and approved by a Fund Disbursement Committee and a release order was issued by the Registrar of the Supreme Court; that till verification and disbursement by such Committee, the monies in the fund shall be invested in some profit-bearing scheme so that the amount collected did not lose its value over time due to inflation; that all contributions made to the funds shall enjoy tax free status and shall be exempted from scrutiny (unless there were reasonable grounds to believe that such contributions represented the proceeds of crime); that no questions shall be asked by any authority or department including, but not limited to the tax authorities, relating to the source of funds contributed to the account, and that the utilization of the said funds shall be subject to audit as per directions of the Supreme Court.

(c) Constitution of Pakistan---

----Arts. 9 & 184(3)---Right to life---Enforcement by the Supreme Court---Scope---In terms of the provisions of Art. 184(3) of the Constitution read with Art. 9 and as guardians of the Fundamental Rights of the people of Pakistan, Supreme Court has the jurisdiction to issue necessary directions to the Government for the practical enforcement of the primordial right to life.

(d) Constitution of Pakistan---

----Arts.9 & 184(3)---Water scarcity---Construction of Kalabagh Dam---Consensus between Provinces---Public interest and common good---Supreme Court observed that all the Provinces entertained apprehensions on the issue of construction of Kalabagh Dam; that dams, particularly those that were large in size and magnitude, were national projects to be carried out for the collective benefit of the whole nation and not for the advantage of one specific group of persons at the cost of another; that the importance of dams increased manifold when countries faced near drought-like circumstances; that people of the country needed to put aside their minor differences or suspicions for the common good; that the needs of the country and its citizens as a whole superseded those of any one person or group of persons; that all citizens of the country should honour public interest and the common good and strive harder to work towards forging unanimity with respect to the construction of Kalabagh Dam so as to ensure water security for the prosperity of the country and future generations.

(e) Constitution of Pakistan---

----Arts. 9 & 184(3)---Water scarcity---Causes---Erratic flow of rivers---Increasing gap in supply and demand of water---Unsustainable use of groundwater--- Poor irrigation infrastructure--- Soil salinization---Improper disposal of waste---Unregulated growing of crops---Sea-water intrusion in coastal areas---Causes of water shortage in Pakistan identified by the Supreme Court.

(f) Constitution of Pakistan---

----Arts. 9 & 184(3)--- Water shortage/scarcity--- Remedial steps---Improvement of infrastructure and equipment---Regulation of extraction of ground water---Rationalizing price of water according to use---Reducing un-accounted quantity of water---Environmental upgradation and forestation---Rainwater harvesting---Capacity building of concerned organizations and departments---Educating public in conversation techniques and efficient use of water---Certain steps that should be taken to address the issue of water scarcity provided in detail by the Supreme Court.

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners/Applicants (in Const. P. 57/2016).

Nemo for Petitioners/Applicants (in Const. P. 24/2018).

Nemo for Petitioners/Applicants (in Const. P. 37/2018).

Nemo for Petitioners/Applicants (in C.R.P. 440/2016).

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Petitioners/Applicants (in Const. P. 38/2018).

Malik Abdul Latif Khokhar, Advocate Supreme Court for Petitioners/Applicants (in H.R.C. 50363-P/2010).

Nemo for Petitioners/Applicants (in C.M.A. 5788/2018).

Khalid Jawed Khan, Attorney General for Pakistan and Syed Nayyar Abbas Rizvi, Addl. A.G.P. assisted by Barrister Asad Rahim Khan for Federation.

Razzaq A. Mirza, Addl. A.G. Punjab, Ms. Sehar Chaudhry, Law Officer, Irrigation, Punjab, Shehryar Qazi, Addl. A.G. Sindh, Jamal Mustafa Syed, Secy. Irrigation, Sindh, Khalid Mehmood, M.D. KWSB, Sindh, Ayaz Swati, Addl. A.G. Balochistan and Barrister Qasim Wadood, Addl. A. G. Khyber Pakhtunkhwa for Provinces.

Dr. Muhammad Rahim Awan, Secretary for LJCP.

Shams-ul-Mulk, ex-Chairman WAPDA, Zafar Mehmood, ex-Chairman WAPDA and Mujeeb-ur-Rehman Pirzada, Advocate Supreme Court on Court's Call.

Shoaib Ahmed Siddiqui, Secretary, Naseer Ahmed Jillani, Senior Chief (Water), Arshad Ali, Joint Secretary for M/o Planning and Development on Court's Notice.

Shumail Ahmed Khawaja, Secretary and Syed Muhammad Mehar Ali Shah, Joint Secretary/Commissioner Indus Water for M/o Water Resources.

Arif Ahmed Khan, Secretary for M/o Finance.

Yousaf Naseem Khokhar, Secretary for M/o Climate Change.

Lt. Gen. (R) Muzammil Hussain, Chairman, M. Babar, Deputy Director and Shahzad Asif, Director for WAPDA.

2018 S C M R 2023

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

SHARJEEL INAM MEMON---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Civil Petition No. 730-K of 2018, decided on 31st August, 2018.

(Against the Order dated 14.5.2018 passed by High Court of Sindh, Karachi in C.P. No. D-2891 of 2018)

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

----S. 9--- Constitution of Pakistan, Art. 185(3)--- Bail, refusal of---Medical grounds---Lower back pain and lumber spasm---Plea of accused that his medical condition was serious and he needed specialized treatment, which was not available in jail---Validity---High Court while declining bail to accused had expressed its doubt as to the veracity and reliability of certain medical reports presented by the Medical Board---Report of another Medical Board stated that the condition of the accused was not life-threatening and was not likely to cause disability---No report from any doctor was available on record which suggested that the accused needed disc surgery with replacement---Bail petition filed by accused was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 185(3)---Bail---Bail sought on medical grounds---Purpose of bail on medical ground was to ensure that an under-trial prisoner was allowed to avail medical treatment and or surgical intervention if need be in hospital of his choice in the country and not to set him at liberty till conclusion of trial.

Dadio v. Sobharo and another 2010 SCMR 576 ref.

Abid S. Zuberi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Munsaf Jan, Special Prosecutor, NAB for the NAB.

2018 S C M R 2027

[Supreme Court of Pakistan]

Present: Mushir Alam and Munib Akhtar, JJ

AURANGZAIB---Petitioner

Versus

MEDIPAK (PVT.) LTD. and others---Respondents

Civil Petition No. 2743 of 2017, decided on 3rd October, 2018.

(On appeal from the order dated 13.6.2017 passed by the Lahore High Court, Rawalpindi Bench in W.P. No. 2042 of 2016)

(a) Payment of Wages Act (IV of 1936)---

----Ss. 1(4) & 2 [as amended by the Labour Laws (Amendment) Ordinance (LIII of 2001)]---Claim under the Payment of Wages Act, 1936---Maintainability---Since amendments made by the Labour Laws (Amendment) Ordinance, 2001 to the Payment of Wages Act, 1936, only two things needed be shown by a person who sought to bring his claim within its scope: firstly, that he was a "person employed", and secondly that he was employed in either a "factory" or an "industrial establishment" or a "commercial establishment"---After the Amending Ordinance there was no longer any requirement that the claimant establish himself to be a "workman", as defined under any labour legislation or otherwise.

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

----S. 2(i)--- "Workman", definition of--- Scope--- "Salesman"---Salesman, was not a "workman" within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

(c) Payment of Wages Act (IV of 1936)---

----S. 2(vi) [as amended by the Punjab Payment of Wages (Amendment) Act (VII of 2014)]---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(j)---Claim made by a salesman under the Payment of Wages Act, 1936---Relief---Scope---Although claim filed by salesman was maintainable under the Payment of Wages Act, 1936 but he did not fall within the definition of a 'workman'---In such circumstances the salesman was entitled to relief in contractual terms---After the Constitution (Eighteenth Amendment) Act, 2010, the Province of Punjab amended the Payment of Wages Act, 1936 by way of Punjab Payment of Wages (Amendment) Act, 2014 such that, clause (b) of S. 2(vi) of 1936 Act was omitted, thus, when the salesman/petitioner filed his claim in the year 2015, both contributions to the provident fund, i.e., as made by him as well as the company, came within the definition of "wages" and thus relief could be granted to him accordingly under the Payment of Wages Act, 1936---Petition for leave to appeal was converted into appeal and allowed accordingly.

Abrar Ahmed, Advocate High Court (appeared with permission of the Court) and Syed Rifaqat Shah, Advocate-on-Record for Petitioner.

Abdul Rab Chaudhry, Advocate Supreme Court for Respondent No. 1.

2018 S C M R 2039

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Syed Mansoor Ali Shah, JJ

Criminal Appeals Nos. 523, 524 and 525 of 2017

(On appeal from judgment of Balochistan High Court, Quetta dated 30.6.2016, passed in Crl. A. No. 114, 141 and 142/2016)

and

Criminal Appeal No. 494 of 2017

(On appeal from judgment of Balochistan High Court, Quetta dated 23.5.2016, passed in Crl.A No. 84/2015)

and

Criminal Appeal No. 452 of 2017

(On appeal from judgment of Balochistan High Court, Quetta dated 25.4.2016, passed in Crl. Jail Appeal No. 33/2015)

and

Criminal Appeal No. 22 of 2018

(On appeal from judgment of Balochistan High Court, Quetta dated 19.12.2016, passed in Crl. A. No. 269/2015)

and

Criminal Appeal No. 51 of 2017

(On appeal from judgment of Balochistan High Court, Quetta dated 19.12.2016, passed in Crl. A. No. 269/2015)

and

Criminal Petition No. 94-Q of 2017

(On appeal from judgment of Balochistan High Court, Quetta dated 13.11.2017, passed in Crl. A. (CNS) No. (T)58/2017)

The STATE through Regional Director ANF---Appellant/Petitioner

Versus

IMAM BAKHSH and others---Respondents

Criminal Appeals Nos. 523, 524, 525, 494, 452, 51 of 2017, 22 of 2018 and Criminal Petition No. 94-Q of 2017, decided on 3rd October, 2018.

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

----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics---Report of Government Analyst---Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory---Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory---Said chain of custody, was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory---Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory---Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure---Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample(s) and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

Amjad Ali v. State 2012 SCMR 577 and Ikramullah v. State 2015 SCMR 1002 ref.

(b) Interpretation of statutes---

----'Directory' and 'mandatory' provisions in a statute---Distinction---To distinguish where the directions of the legislature were imperative and where they were directory, the real question was whether a thing had been ordered by the legislature to be done and what was the consequence, if it was not done---Some rules were vital and went to the root of the matter, they could not be broken; others were only directory and a breach of them could be overlooked provided there was substantial compliance---Duty of the court was to try to unravel the real intention of the legislature---Such exercise entailed carefully attending to the scheme of the Act and then highlighting the provisions that actually embodied the real purpose and object of the Act---Provision in a statute was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceedings---Some parts of a statute, thus, may be mandatory whilst others may be directory---Furthermore certain portion of a provision, obligating something to be done, may be mandatory in nature whilst an other part of the same provision, may be directory, owing to the guiding legislative intent behind it---Even parts of a single provision or rule may be mandatory or directory---In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man.

N.S. Bhindra's - Interpretation of Statutes - 12th edition. Lexis Nexis. P.435; Crawford, Statutory Construction, p.104; Maxwell, Interpretation of Statutes, 11th edition, pp 369; The Collector of Sales Tax, Gujranwala v. Super Asia Muhammad Din and Sons 2017 SCMR 1427 and Zia Haider Rizvi v. Deputy Commissioner of Wealth Tax 2011 SCMR 420 ref.

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

----R. 3---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotic---Narcotic Testing Laboratories---Qualification of Government Analyst---Supreme Court directed that the Federal Government and the respective Provincial Governments shall ensure that the Government analysts in the Narcotics Testing Laboratories were qualified as per R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001('the Rules'); that the tests and their protocols were common across the country and as per International guidelines; that the officials of the National and Provincial Narcotics Testing Laboratories shall follow the Rules in the best manner possible so that efficient and meaningful chemical analysis could be achieved, and that in case of failure, disciplinary action shall be taken against the officials, in accordance with law.

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

----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics---Report of Government Analyst---Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory while R. 6 was mandatory to the extent that the full protocols ought to be mentioned in the report of the Government Analyst---Non-compliance of R. 6, in such context, would render the report of the Government Analyst inconclusive and unreliable.

Raja Inam Ameen Minhas, Special Prosecutor ANF, Ch. Aitsham-ul-Haq, Special Prosecutor ANF and Tariq, DD (Law), ANF for the State.

Syed Nayyab H. Gardezi, DAG on Court's Notice.

M. Shabbir Rajput, Advocate Supreme Court for Respondents (in Crl. As. 452 of 2017 and 51 of 2018).

Nemo for Respondents.

2018 S C M R 2051

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

MUHAMMAD ASJAD ABBASI and others---Petitioners

Versus

IQBAL MUHAMMAD CHAUHAN and others---Respondents

Criminal Original Petition No. 57 of 2015 in S.M.C. No. 10 of 2005, Crl. M.A. No. 1879 of 2016 in Criminal Original Petition No. 57 of 2015, Crl. O.P. No. 42 of 2017 in S.M.C. No. 10 of 2005, Crl. M.A. No.1292 of 2017 in Crl. O.P. No. 57 of 2015, Crl. M.A. No. 1293 of 2017 in Crl. O.P. No. 57 of 2015, C.M.A. 6998 of 2017 in C.R.P. No.Nil of 2017 in S.M.C. No. 10 of 2005, Crl. M.A. No. 1926 of 2017 in Crl. O.P. No. 57 of 2015 and Crl. M.A. No.430 of 2018, decided on 4th May, 2018.

(Impleadment Application)

Per Ejaz Afzal Khan, J; Faisal Arab, J agreeing; Maqbool Baqar, J, dissenting.

(a) Wajib-ul-arz---

----Meaning---Wajib-ul-arz was a village administration document describing existing customs regarding rights and liabilities of the village proprietary body and the government---Said document was an outcome of consensus of the village proprietary body and the government reached at the time of settlement of the village.

Haji Qudrat Ali v. Government of N.W.F.P., through Secretary, Law Department, Peshawar 1993 SCMR 381 and Mst. Bhag Bhari v. Mst. Bhagan PLD 1954 Lah. 356 ref.

(b) Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 12---Punjab Land Dispositions (Saving of Shamilat) Ordinance (I of 1959), S. 3---Constitution of Pakistan, Arts. 23 & 24---Rules of Guzara land, or forest and waste lands of the Murree and Kahuta Tahsils, other than Reserved and Protected Forests [made under S. 76(c) of the Forest Act, 1927], Rr. 4A & 4B---Housing scheme initiated by a private developer---Shamilat-i-deh land broken up for construction---Adverse environmental impact---[Per Ejaz Afzal Khan, J (Majority view): Perusal of the relevant clauses of the wajib-ul-arz of each of the villages which were provided to the private developer for the housing scheme in question showed that the rights of the proprietary body of the village in shamilat-e-deh were neither exclusive nor unlimited---Rights in shamilat-e-deh were confined to grazing their cattle etc. and not beyond that---Wajib-ul-arz of the villages further provided that shamlat-i-deh could neither be broken up for cultivation nor partitioned without the permission of the government---Such restriction was also provided under Rr. 4A & 4B of the Rules of Guzara land, or forest and waste lands of the Murree and Kahuta Tahsils, other than Reserved and Protected Forests [made under S. 76 (c) of the Forest Act, 1927]---In such circumstances it was not understandable as to how suitable chunks of land were chosen and taken possession of without having recourse to the legal proceedings and without the permission of the government in gross violation of the law governing the partition of such land---Section 3 of Punjab Land Dispositions (Saving of Shamilat) Ordinance, 1959 by no stretch of imagination neutralized the effect of any of the clauses of wajib-ul-arz dealing with shamilat-i-deh nor did it override or extinguish rights of the government in shamilat-i-deh---Government land was aggressively taken possession of and lavishly enjoyed by a cabal of land grabbers but those sitting in the chambers of power at every level aided and abetted them as if it was not for them to prevent such acts---Any area of shamilat-i-deh broken up for cultivation or any other purpose, partitioned, taken possession for constructed in violation of the wajib-ul-arz and Rr. 4A & 4B of the Rules, being illegal and unlawful was of no effect---Supreme Court directed that the area thus broken up, partitioned, taken possession of or constructed shall be retrieved by the Government forthwith; that all construction work in shamilat-i-deh shall be stopped forthwith; that the construction work carried in private ownership would continue only if it was approved by the relevant development authority and Environmental Protection Agency; that all persons and officials of there venue department involved in the present case shall be proceeded against, and National Accountability Bureau shall investigate the case and file references against all those who were found responsible for committing, aiding and abetting the crime at any level or in any form; that the Implementation Bench for the present case shall deal with the questions of what to do with the allottees, how to deal with their cases and what remedial measures could be taken in such behalf, and that the Provincial Government and the Forest Department shall take care of the areas of the shamilat-i-deh to develop it by afforestation and reforestation]---[Per Maqbool Baqar, J (Minority view): Relevant wajib-ul-arz allegedly provided that the shamilat land could not be partitioned without the sanction of the government, and that the trees within the shamalat land shall be presumed to be owned by the government---In the first place, the wajib-ul-arz document could either be a statement of local custom and usage, or could be a recital of agreements---Since nothing had been placed before the court to show that the relevant wajib-ul-arz had been prepared with the consent of the village proprietary body and the government, therefore, the same, could not be treated as an agreement, but only as a statement of local custom or usage---Furthermore S. 3 of Land Disposal (Saving of Shamilat) Ordinance 1959, recognized the right of an owner in shamilat land to sell his share therein---Any restriction in such regard, either through wajib-ul-arz, or any rule, which was inconsistent to or in conflict with the provisions of Arts. 23 & 24 of the Constitution was void---Partitioning of the shamilat land had been in practice in the subject area since long and almost 50% of the land in the region, comprised of shamilat and the same had been partitioned amongst its owners, and a number important buildings were constructed on such lands---Question of compliance or non-compliance of the environmental laws and as to whether the subject construction/development was causing any damage to the environment and ecology were sub-judice before the Environmental Tribunal---In such circumstances it would not be just and fair to order retrieval of the subject lands as the issue requires in depth and detailed hearing so that the same be decided after thrashing out all the material aspects of the case, and by keeping in view the relevant law, and its implications---Substantial construction and physical development had already taken place and the Provincial Government had never raised any objection to the utilization of the shamilat land for the purpose as done in the present case, and further no one from the village proprietary body raised any objection to the subject construction/ development before any governmental authority---Large number of people had invested their life long savings in the subject housing scheme, some through loans from Banks, therefore, it was appropriate that present case/petition be fixed for further hearing].

(c) Illegality---

----Illegal act would remain illegal.

Sardar Muhammad Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Crl. O.P. 57 of 2017).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Gohar Ali Khan, Advocate Supreme Court for Petitioners (in Crl. M.A. 1879 of 2016, C.M.A. 6998 of 2017 and Criminal M.A. 1926 of 2017).

Nemo for Petitioners (in Crl. O.P. 42 of 2017).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Crl. M.As. Nos. 1292-1293 of 2017).

Shakeel Ahmed, A.G., Punjab and Barrister Qasim Chauhan, Additional A.-G. Punjab for Respondents Nos. 1 and 2.

Respondent No.3 in person.

Moulvi Anwar-ul-Haq, Advocate Supreme Court and Raja Inam Ameen Minhas, Advocate Supreme Court for Respondent No.4.

Ch. Ehtesham ul Haq Advocate Supreme Court for Respondent No.5.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 6 - 16.

Shafqat Abbasi, Advocate Supreme Court for Respondents (in Crl. M.A. 430 of 2018).

Sohail Mehmood, DAG for Federation of Pakistan.

Asif Iqbal, D.-G., Nawaz Malik, Dir (Law) and Shahid Hussan, Dy. Dir. for Environment EPA, Punjab.

2018 S C M R 2077

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ZAHID HUSSAIN MAKHDOOM---Petitioner

Versus

The SECRETARY/CHAIRMAN, RAILWAY BOARD, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Petition No. 194-K of 2017, decided on 20th December, 2017.

(Against the judgment dated 30.01.2017, passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No. 37(K)CS/2013)

Civil service---

----Dismissal from service---Employee remaining absent from duty for about 16 months---Unblemished record of 35 years of service---Effect---Dismissal from service converted into compulsory retirement---Plea of railway employee/petitioner that he had applied for leave for 720 days, which was not allowed to him and owing to a tribal dispute the petitioner and his family members, due to danger, had to leave place of report and thus was unable to report for duty---Service Tribunal did not accept such explanation of the petitioner on the ground that he has not lodged any FIR in respect of threat to his life or to that of his family members---Held, that imposition of major penalty of dismissal was not proportionate to the misconduct of the petitioner more so when Railway authorities themselves had been taking lenient view on such matters---Fact that petitioner remained absent on account of threat to his life and life of his family members, though was not substantiated by the petitioner ¬through documentary proof but such fact had also not been disputed by the Railway authorities---Petitioner had unblemished record of 35 years of service with the Railway department and his absence in question was the first occasion on which he remained absent from duty---In such circumstances penalty of dismissal from service imposed on petitioner was converted into that of compulsory retirement from the date of his dismissal.

Malik Naeem Iqbal, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Syed Abdul Waheed, Advocate Supreme Court and Aijaz Ahmed Burriro, Divisional Superintendent, Pak. Railways, Karachi for Respondents.

2018 S C M R 2080

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

WALI MUHAMMAD KHAN and another---Appellants

Versus

Mst. AMINA and others---Respondents

Civil Appeal No. 175-P of 2011, decided on 15th August, 2018.

(On appeal against the judgment dated 14.11.2011 of the Peshawar High Court, Peshawar passed in C.R. No. 350 of 2010)

Gift---

----Donor, a pardanashin lady---Requirements---Exclusion of sisters from inheritance---Gift of property purportedly made by mother to her sons to the exclusion of daughters---Proof and burden of proof---Document whereon the statement of the mother/purported donor was allegedly recorded and on which she was stated to have affixed her thumb impression was not produced; and instead a simple photo copy of such document was produced, which neither constituted primary nor secondary evidence---Burden of proof to establish the gift laid on the sons/appellants but they failed to discharge such burden---Appellants had alleged that the gift was made in the presence of a person "G", but he did not testify---Both sides maintained that the purported donor was an old, illiterate, parda observing lady---Paper on which her purported statement was recorded bore a thumb impression---Appellants had to establish that the purported donor had impressed her thumb impression on it but they made no effort to prove it, which they could have done by having it forensically examined and having it compared with some document on which she had admittedly impressed her thumb, such as her identity card and or her passport---Person who recorded the alleged statement of purported donor, did not make any effort to verify her identity through any means, let alone her national identify card/passport---Said person also did not take simple precautions, such as enquiring from the purported donor about her family members and the reason why her children were not present---Since an elderly parda observing illiterate lady intended to divest her entire property in favour of only two of her children, every precaution should have been taken to ensure that the parda clad person who was produced before the revenue officer was actually the purported donor---Subsection (7) of S. 42 of the Khyber Pakhtunkhwa Land Revenue Act, 1967 required that the person from whom the property was being acquired was to be identified by, "two respectable persons… whose signatures or thumb-impressions shall be obtained by the Revenue Officer"---Such procedure was not followed in the present case---Furthermore the register of mutations was not produced, nor verified copies therefrom exhibited---Appellants had completely failed to establish the purported gift in their favour---Appeal was dismissed with the observation that the courts exercised extreme caution when faced with 'gifts' which deprived female members of a family.

Barkat Ali v. Muhammad Ismail, 2002 SCMR 1938 ref.

Ghulam Nabi, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (Absent) for Appellants.

Khalid Khan, Advocate Supreme Court for Respondents Nos.1 and 2.

Nemo for Respondents Nos. 3 - 6.

2018 S C M R 2086

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SHAUKAT ALI---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and others---Respondents

Civil Appeal No. 1042 of 2018, decided on 26th September, 2018.

(Against the order dated 10.8.2018 of the Election Commission of Pakistan, Islamabad passed in Case No. 3(1)/2016-GA)

(a) Elections Act (XXXIII of 2017)---

----S. 9(1)---Constitution of Pakistan, Arts. 8(2) & 25---Power of the [Election] Commission to declare a poll void---Turnout of women voters less than ten percent of the total votes polled in a constituency---Vires of S. 9(1) of the Elections Act, 2017---Section 9(1) was consciously designed for a society in which several practices depriving women of legitimate legal rights were commonplace---Article 25(3) of the Constitution unequivocally allowed for special provisions to be made for the benefit of women as an exception to the general rule of equal treatment---Said Article clearly allowed positive discrimination in favour of women---Right to vote was a very precious right guaranteed directly by the Constitution, therefore, the safeguards provided in respect of women by S. 9(1) of the Elections Act, 2017 were permissible under Art. 25(3) of the Constitution and hence, intra vires.

Shirin Munir's case PLD 1990 SC 295 ref.

(b) Elections Act (XXXIII of 2017)---

----S. 9(1)---Constitution of Pakistan, Arts. 8(2) & 25---Power of the [Election] Commission to declare a poll void and order a re-poll---Scope---Turnout of women voters less than ten percent of the total votes polled in a constituency---Power of the Election Commission to order re-poll in terms of S. 9(1) of the Elections Act, 2017 was not automatic and reasons for the same had to be provided---Each time the Election Commission invoked its power where turnout of women voters was less than ten percent of the total votes polled in the constituency, it would have to provide reasons for its order which, in any case, would be justiciable before the court of competent jurisdiction.

Gohar Ali Khan, Advocate Supreme Court for Appellants.

M. Arshad, D.G. Law, ECP for Election Commission of Pakistan.

Sohail Mahmood, DAG on Court's Notice.

Bilal Hassan Minto, Advocate Supreme Court amicus curiae.

Nemo for Private Respondents.

2018 S C M R 2092

[Supreme Court of Pakistan]

Present: Mushir Alam, Manzoor Ahmad Malik, Sardar Tariq Masood, Muhammad Al-Ghazali and Dr. Muhammad Khalid Masood, JJ

HAYATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Shariat Appeal No. 7 of 2017, decided on 24th September, 2018.

(On appeal against the judgment dated 22.05.2012 passedby Federal Shariat Court in Crl. A. No. 4/Q, Crl. M. R. No. 1/Q and Crl. A. No.5/Q of 2011)

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Qatl-i-amd---Reappraisal of evidence---Conviction based on confession before police and other inadmissible evidence---No direct evidence was available against the accused---Main evidence relied upon by the courts below was confession of accused before the investigation officer, which was inadmissible evidence in terms of Arts. 38 & 39 of the Qanun-e-Shahadat, 1984---Pointing out of the place where dead body of deceased was thrown and the place of recovery of motorcycle by the accused could not be termed as discovery as a consequence of information received from the accused within the meanings of Art. 40 of the Qanun-e-Shahadat, 1984 as the said places were already in the knowledge of the police and the complainant party, therefore, it was also inadmissible evidence---Neither the prosecutor nor the defence made any objection upon bringing the said inadmissible pieces of evidence on record---Conviction of accused was based on inadmissible evidence---Accused was acquitted of the charge of murder in circumstances--- Appeal was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Conviction--- Recovery of weapon at pointation of accused---Recovery of empties from place of occurrence---Such recoveries alone were not sufficient for conviction and they were termed as corroborative piece of evidence.

(c) Criminal trial---

----Court, duty of---Recording of evidence---Inadmissible evidence---Trial judge had to check admissibility of evidence without waiting for any such objection from either side because the judge was required to be vigilant and had to play an active role while recording the evidence of witnesses---Trial Court was duty bound to decide an objection regarding admissibility of evidence then and there and should not defer the same till the end of the trial.

M. Siddique Khan Baloch, Advocate Supreme Court/Advocate-on-Record for Appellant.

Syed Baqir Shah, State Counsel.

2018 S C M R 2098

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Sardar Tariq Masood, JJ

MAULA BUX SHAIKH and others---Petitioners

Versus

CHIEF MINISTER SINDH and others---Respondents

C.P. No. 78-K of 2015, decided on 3rd October, 2018.

(On appeal against order dated 21.11.2014 passed by the Sindh Service Tribunal, Karachi, in Appeal No. 195 of 2014)

Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 2(ii), 2(xxiii), 2(xxv), 2(xxvii) & 10(1) & First and Second Sched.---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974, R. 3(2)---Promotion---Criteria/education qualification for promotion to next grade---Domain of Executive---Notification for promotion to post of Executive Engineer (BS-18)---Said notification provided 13% promotion quota to Diploma holders and 7% promotion quota to B.Tech (Hons.) degree holders---Plea of petitioner/Assistant Engineer (BS-17) that work of Executive Engineer BS-18 was strictly that of a Professional Engineer, who had an engineering degree from an Accredited Engineering Institution in the country or abroad as included in the First and Second Schedule of the Pakistan Engineering Council Act, 1975, and that Diploma holders and B.Tech (Hons.) degree holders were not professional engineers and could not perform work of a Professional Engineer---Validity---Deciding whether a particular academic qualification of a civil servant/employee was sufficient for promotion from one grade to another higher grade fell under the domain of the Government, whereas it is in the domain of the Pakistan Engineering Council to decide whether a particular academic qualification could be equated with another academic qualification but it had no power to say that a civil servant/employee holding particular academic qualification could not be promoted from a particular grade to a higher grade---Impugned notification could not be validly or justifiably challenged on the ground that it impinged or infringed upon any of the provisions of the Pakistan Engineering Council Act, 1975, and thus would be ultra vires---Provisions of said Act nor the rules and regulations made under it would operate as bar on Government to prescribe for qualification and other conditions of service of civil servants/employees for promotion to higher grade---Supreme Court dismissed the petition and refused leave with the direction that the Government shall not allow or permit any person to perform professional engineering work as defined in the Pakistan Engineering Council Act, 1975, who did not possess accredited engineering qualification from the accredited engineering institution and his name was not registered as a registered engineer or professional engineer under the said Act.

Pakistan Diploma Engineers Federation (Registered) through its Chairman v. Federation of Pakistan through Secretary Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807; Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others 1992 PLC (C.S.) 637; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701; Muhammad Younus Aarain v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134 and Nazir-ul-Hasan and 2 others v. Syed Anwar Iqbal and others 2014 SCMR 1827 ref.

Salah-ud-Din Ahmed, Advocate Supreme Court for Petitioner No. 1.

Rasheed A Rizvi, Senior Advocate Supreme Court for Petitioner Nos. 2 - 3.

Sabtain Mehmood, Assistant A.-G. Sindh for Respondent Nos. 1 - 4.

Ghulam Haider Shaikh, Advocate Supreme Court for Respondent No.5.

Nemo for Respondents Nos. 6, 7 and 9.

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Respondents Nos. 8 and 12.

M. Aqil Awan, Senior Advocate Supreme Court for Respondents Nos. 10, 11, 13 to 17.

2018 S C M R 2116

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sajjad Ali Shah and Munib Akhtar, JJ

NATIONAL INSURANCE COMPANY LIMITED---Petitioner

Versus

AHMED ALI BHAMBHRO and others---Respondents

Civil Appeal No 80-K of 2017, decided on 21st June, 2018.

(Against the order dated 10.5.2017 passed by the High Court of Sindh in C.P. No. D-4428/2014)

National Insurance Corporation Employees' Pension Funds Regulation, 1986---

----Regln. 6(3)--- Pensionary benefits of transferred employee---Respondent-employee was transferred from Pakistan National Produce Company Limited to the National Insurance Corporation Limited ("the Insurance Corporation") under an administrative order of the competent authority on the basis that the former company had been wound up---At the time of his retirement, question arose about the pensionary benefits of the respondent for the period he spent in his erstwhile company i.e. Pakistan National Produce Company Limited (PNPCL)---On the refusal of his pensionary benefits, the respondent approached the High Court, which through the impugned order granted him the pensionary benefits for the period for which he had been serving in the erstwhile company---Plea of Insurance Corporation that pensionary benefits were not available to the respondent under the rules of his erstwhile company and besides Regulation No. 6(3) of National Insurance Corporation Employees' Pension Funds Regulation, 1986 prohibited pensionary benefits until and unless expressly and unequivocally granted to an employee---Validity---Respondent was not working in Insurance Corporation on deputation rather in compelling circumstances he had been transferred, therefore, provisions of Regln. 6(3) had no relevance to the present case---Record did not show whether the erstwhile company did not carry a pension scheme, therefore, respondent's pensionary benefits for the period he had served in the erstwhile company could not be denied---Appeal filed by Insurance Corporation against judgment of High Court was dismissed accordingly.

Zahid Ebrahim, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Sanaullah Noor Ghori, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

Respondents Nos. 2 - 4 ex parte.

2018 S C M R 2118

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Munib Akhtar, JJ

HAROON SHAFIQUE---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 45 of 2017, decided on 16th July, 2018.

(Against the judgment dated 10.07.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1270 of 2009 and Murder Reference No. 398 of 2009)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt-- Spur of the moment fight without any premeditation---Occurrence took place during night and although the prosecution had mentioned availability of electric light at the spot yet admittedly no electric bulb had been secured during the investigation---Incident had taken place at the dera of a lamberdar but admittedly he had not been produced by the prosecution before the Trial Court---Said lamberdar and his son had also been injured during the same incident yet despite being natural and independent witnesses both of them had not been produced by the prosecution during the trial giving rise to an adverse inference that had they entered the witness-box they would have deposed against the prosecution---Case record showed that during the same incident the accused and one of the co-accused had also been injured and they had received injuries on vital parts of their bodies but the actual circumstances in which such injuries had been caused to the accused and his co-accused had never been divulged by the prosecution---Almost all the co-accused persons attributed effective roles, had been acquitted by the High Court and, thus, the accused could not have been convicted and sentenced without independent corroboration---High Court itself had concluded that no independent proof regarding the alleged motive had been adduced by the prosecution before the Trial Court and that the alleged recovery of a pistol from the accused's custody during the investigation was legally inconsequential because the crime-empties had been sent to the Forensic Science Laboratory after the alleged recovery of a pistol from the accused's possession---Post-mortem examination of the dead body of deceased had been conducted after about fifteen hours of his death giving rise to an inference that time had been consumed by the complainant party and the local police in cooking up a story for the prosecution and in procuring and planting eye-witnesses---High Court had itself concluded that it was a case of a free fight which had taken place at the spur of the moment without any premeditation---Benefit of doubt had to be extended to the accused in such circumstances---Appeal was therefore allowed and the conviction and sentence of the accused recorded by the High Court were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

Hasnat Ahmad Khan, Advocate Supreme Court for Appellant with Appellant in person.

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

2018 S C M R 2121

[Supreme Court of Pakistan]

Present: Mushir Alam and Sajjad Ali Shah, JJ

Malik KHAN MUHAMMAD TAREEN---Petitioner

Versus

Messrs NASIR AND BROTHER COAL COMPANY through Proprietor and others---Respondents

Civil Petition No. 80 of 2018, decided on 3rd October, 2018.

(Against the judgment dated 13.11.2017 passed High Court of Balochistan, Quetta in Civil Revision No. 109 of 2015)

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

----Ss. 16(c) & 21---Civil court---Territorial jurisdiction---Objections against jurisdiction---Mining lease---Scope---Mines situated in place "D"---Suit filed by plaintiff in civil court at place "Q"---Civil court at place "Q" in consideration of fact that mining lease was situated in place "D" returned the plaint to be presented before the Court having territorial jurisdiction, which order was maintained by the District Judge---High Court, however, concluded that "the matter in issue pertained to an area of some mining lease and rights thereon; that it did not directly relate to right and interest in the immoveable property, thus suit could be filed at the place where the cause of action in whole or in part had arisen, and that the objection as to territorial jurisdiction was not timely pressed by the defendant, and such conduct amounted to waiver---Consequently, the High Court directed civil court at place "Q" to proceed with the matter in accordance with law---Legality---Mining lease meant rights and interest in mines and minerals in and on the surface of earth or land---Mines and minerals were regarded as moveable property---Rights and interest in mines and mineral on or in the surface of land was separate and distinct from "rights to or interest in immoveable property" within the contemplation of clause (d) of S. 16, C.P.C.---All mines and minerals were always deemed to be the property of Government, irrespective of fact that title to surface land vested in an individual, certain department or any other authority---High Court had rightly held that no rights and interest in the immoveable property was involved in the present case---Defendant instead of raising objections as to territorial jurisdiction of the civil court, engaged into a long drawn battle in the High Court and Supreme Court, and was ultimately driven to Trial Court to contest the suit on merits---Written statement was filed by the defendant with considerable delay, raising issue of territorial jurisdiction---Although issue of territorial jurisdiction was raised before settlement of issues but not at the earliest opportunity---Since the objection as to territorial jurisdiction was not raised promptly before the civil court at place "Q" as required under S. 21, C.P.C., and no prejudice was shown to have been caused to the defendant, therefore civil court at place "Q" was competent to decide the controversy and had the requisite jurisdiction---Petition for leave to appeal was dismissed and leave was refused accordingly.

Sojitz Coal Resources Pty. Ltd. v. Commissioner of State Revenue [2015] QSC 9; Water and Power Development Authority and another v. Assistant Director Mines and Minerals, Attock and others PLD 2012 Lah. 83; Messrs National Highway Authority through Duly Authorized Director (Legal) v. The Chief Secretary, Government of the Punjab, Lahore and 5 others PLD 2017 Lah. 390 and Fateh-ul-Mulk Ali Nasir and 4 others v. Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals and 6 others 2015 CLC 1762 ref.

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

----S. 21---Civil court---Territorial jurisdiction---Objections against territorial jurisdiction---Such objections unless raised before the Court of first instance "at the earliest possible opportunity" were not even considered by the appellate or revisional Court---Appellate or revisional Court would only consider such objections provided all three conditions as set down in S. 21, C.P.C. were met; firstly, objection as to territorial jurisdiction was raised in the Court of first instance; secondly, such objection was raised at the earliest opportunity and in case the issues were settled, before settlement of issue; and, thirdly, there had been consequent failure of justice.

Pathumma v. Kuntalan Kutty AIR 1981 SC 1683 ref.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Tariq Mehmood, Advocate Supreme Court for Respondents.

2018 S C M R 2128

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Sajjad Ali Shah, JJ

Khawaja MUHAMMAD ASIF---Petitioner

Versus

MUHAMMAD USMAN DAR and others---Respondents

Civil Petition No. 1616 of 2018, decided on 19th October, 2018.

(On appeal against the judgment dated 26.04.2018 passed by the Islamabad High Court, Islamabad in Writ Petition No 2907 of 2017)

(a) Representation of the People Act (LXXXV of 1976) [since repealed]---

----S. 12(2)(f)---Constitution of Pakistan, Art. 62(1)(f)---Nomination papers, scrutiny of---Returning Officer, powers of---Upon finding a nomination paper to be non-compliant with the election law all that a Returning Officer could do was to reject a nomination paper without attributing any sort of dishonesty to the contesting candidate---Only when a contesting candidate had already been declared disqualified under Art. 62(1)(f) of the Constitution by a competent court of law, the Returning Officer could reject his nomination papers straight away on such basis.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976) [since repealed], S. 12(2)(f)---Disqualification from membership of National Assembly---Grounds---Omission to disclose an asset in nomination papers---Dishonesty---Proof---Mere omission to list an asset could not be labeled as dishonesty unless some wrongdoing was associated with its acquisition or retention which was duly established in judicial proceedings---No set formula could be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification on a candidate---Element of bad intention with regard to an undeclared asset had to exist before it was described as dishonest---Intervention through a writ in the nature of quo warranto in financial matters against an elected member could only be justified when non-disclosure of an asset was meant to conceal a wrongdoing---Law did not envisage that every rejection of nomination papers on account of non-disclosure of an asset would lead to disqualification under Art. 62(1)(f) of the Constitution therefore unless some wrongdoings or dishonesty associated with an undeclared asset was established the outcome of the case would not culminate into disqualification for life---Where a matter with regard to an undisclosed asset was taken to court, it would not form the opinion that it was a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired---Where no satisfactory explanation was forthcoming and the undeclared asset also did not commensurate with the elected member's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset.

Aguilar v. Office of Ombudsman decided on 26.2.2014; Rai Hassan Nawaz v. Haji Muhammad Ayub PLD 2017 SC 70 and Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 ref.

(c) Representation of the People Act (LXXXV of 1976) [since repealed]---

----Ss. 12(2)(f) & 42A---Constitution of Pakistan, Art. 62(1)(f)---Member of National Assembly---Disqualification from membership of National Assembly---Concealment of foreign employment and salary in nomination papers---Plea of respondent that the petitioner, who was a member of the National Assembly and a Federal Minister, whilst holding public offices in Pakistan continued to serve a foreign based company as its fulltime employee, hence he not only violated the oath of his office and the rule of conflict of interest but also failed to disclose his monthly salary derived from such employment in the statement of assets and liabilities filed under the provisions of Ss. 12(2)(f) & 42A of the Representation of the Peoples Act, 1976, (since repealed) and thus stood disqualified to be member of the National Assembly---Validity---On the basis of the contents of the contract of employment the status of the petitioner was though shown to be of a fulltime employee of the foreign company but in actuality the petitioner was not shown to have gone to the foreign country to work for the company in such capacity---Petitioner retained his presence in Pakistan as a member of the Federal Cabinet---Even if the petitioner had rendered legal advice on phone, the respondent had failed to demonstrate that the petitioner or any of his family members owned any shares in the foreign company which had financial dealings with the Federation of Pakistan and their competing financial interests had undermined the impartiality of the petitioner by leaking any information to the said company or unduly benefited it in any manner that fell within the ambit of conflict of interest---Further it had also not been established that the petitioner by using his official position was instrumental in extracting some undue benefit from the Federal Government in favour of the foreign company---No case of conflict of interest was made out against the petitioner---While the petitioner's monthly salary from foreign employment was disclosed in the tax return filed with the nomination papers, nothing was left in hand as savings from the salary to be declared as an asset hence the figure '0' was written in the relevant column of the tax return after recording the monthly salary settled under the foreign contract---Petitioner's declaration of foreign salary as one of his sources of income under the foreign employment contract existed on the record, so it can't be said that it was case of non-declaration of a source of income---No case for issuance of a writ in the nature of quo warranto was made out---Petition for leave to appeal was converted into appeal and allowed accordingly.

(d) Representation of the People Act (LXXXV of 1976) [since repealed]---

----S. 12(2)(f)--- Constitution of Pakistan, Art. 62(1)(f)---Disqualification from membership of National Assembly---Disclosure of salary from employment in nomination papers---Scope---Where a person deriving income from salary had already spent it then all that was required to be disclosed was the source from which he derived his salary, not the entire quantum of salary that he received as it no more existed in his hand in the form of an asset---Occasion to declare salary as an asset arose only when at the stage of filing nomination papers it had either accrued but the employee at his own instance has not collected from the employer, who kept it in trust for the employee or where the salary had been received but after spending some of it, part of it still existed as his savings in the form of cash-in-hand or cash-in-bank---So the salary that had not been collected at the option of the employee or the savings from the salary that existed in the hands of the employee at the time of contesting elections needed to be declared as an asset in the nomination papers.

(e) Representation of the People Act (LXXXV of 1976) [since repealed]---

----S. 12(2)(d)---Income Tax Ordinance (XLIX of 2001), S. 102---Constitution of Pakistan, Art. 62(1)(f)--- Disqualification from membership of National Assembly---Non-payment of income tax on salary earned from a foreign company---Disqualification of the petitioner, who was a member of the National Assembly and a Federal Minister, was sought on the ground that no income tax on salary derived from employment with a foreign company was paid, which was his obligation under S. 102 of the Income Tax Ordinance, 2001---Validity---Section 12(2)(d) of the Representation of the People Act, 1976 required every contesting candidate to make a declaration that they or their spouses or any of their dependents or the business entities mainly owned by them were not in default in payment of any government dues or utility charges in excess of ten thousand rupees for over a period of six months at the time of filing the nomination papers---Such default could only be established had it been shown that a bill or a recovery or demand notice or an assessment order was issued by an authority that was competent to recover government dues yet the same had remained unpaid; however, that was not the case in the present proceedings---In absence of any such demand from the concerned government department, the court in proceedings in the nature of quo warranto could not take upon itself the obligation to make assessment of tax on its own which only the income tax department was competent to do under the law---No case for issuance of a writ in the nature of quo warranto was made out---Petition for leave to appeal was converted into appeal and allowed accordingly.

(f) Representation of the People Act (LXXXV of 1976) [since repealed]---

----S. 12(2)(f)--- Constitution of Pakistan, Art. 62(1)(f)---Disqualification from membership of National Assembly---Failure to disclose a foreign Bank account in nomination papers---Innocent omission---Plea that at the time of filing his nomination papers for the General Elections, 2013, the petitioner failed to disclose therein a certain sum of money which was lying deposited in a foreign Bank account---Plea of petitioner that such omission happened due to oversight---Validity---Said bank account was disclosed by the petitioner in the statement of assets and liabilities filed in the year 2015 as required under S. 42A of the Representation of the People Act, 1976---Complete Bank statement of the said account was on the record which reflects that the petitioner opened his account on with a sum of AED 5,000/- and five years later closed it---In the interregnum, the Bank had only been debiting Bank charges periodically which brought down the original deposit amount from AED 5,000 to AED 4,715----So right from the day the Bank account was opened and till its closure, no business was transacted in the said account which substantiates the plea taken by the petitioner that the Bank account's non-disclosure was an innocent omission and not intended to conceal some wrongdoing---Other than making a deposit of AED 5,000/- no transaction had taken place in the said account which throughout its life remained dormant---Petitioner could not be labeled dishonest for omitting to declare such a small amount under Art. 62(1)(f) of the Constitution---No case for issuance of a writ in the nature of quo warranto was made out---Petition for leave to appeal was converted into appeal and allowed accordingly.

Munir A. Malik, Senior Advocate Supreme Court, Rashdeen Nawaz Kasuri, Advocate Supreme Court and Zahid F. Ebrahim, Advocate Supreme Court assisted by Ch. Najam-ul-Hassan, Advocate and Ahmed Nawaz Chaudhry, Advocate-on-Record for Petitioner.

Sikandar Bashir Mohmand, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Waqar Chaudhry, DPA (Litigation) for Respondent No.3.

2018 S C M R 605

[Supreme Court of Canada]

Present: McLachlin, C.J., Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

DELOITTE & TOUCHE (NOW CONTINUED AS DELOITTEE LLP)---Appellant

Versus

LIVENT INC., through its Special Receiver and Manager Roman Doroniuk and another---Respondents

and

CANADIAN COALITION FOR GOOD GOVERNANCE AND CHARTERED PROFESSIONAL ACCOUNTANTS OF CANADA---Interveners

Decided on 20th December, 2017.

(On Appeal from the Court of Appeal for Ontario)

Per Gascon and Brown JJ; Karakatsanis and Rowe JJ. concurring; McLachlin C.J., Wagner and Côté JJ. dissenting in part.

(a) Torts---

----Professional negligence---Pure economic (financial) loss, recovery of---Duty of care---Scope---Negligent misrepresentation or performance of service by auditor---General test/framework to be examined by court in cases of pure economic loss arising from an auditor's negligent misrepresentation or performance of a service comprised of two stages; whether a prima facie duty of care existed between the parties, and if so, whether there were any residual policy considerations that may negate the imposition of a duty of care---Principles stated.

General framework set out in Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L.), and later refined in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, ["Anns/Cooper framework"] applied in cases of pure economic loss arising from an auditor's negligent misrepresentation or performance of a service. Comprising two stages, the 'Anns/Cooper framework' asked whether a prima facie duty of care existed between the parties, and if so, whether there were any residual policy considerations that may negate the imposition of a duty of care.

Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L.); Hercules; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 and Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, at pp. 10-11 ref.

At the first stage, a prima facie duty of care was recognized where proximity and reasonable foreseeability of injury were established. When assessing proximity, if a relationship fell within a previously established category, or was analogous to one, then the requisite close and direct relationship was shown. If a risk of reasonably foreseeable injury could also be shown, the first stage of the 'Anns/Cooper framework' was complete and a duty of care may be identified. In such circumstances, the second stage of the framework would seldom be engaged because any residual policy considerations would have already been taken into account when the proximate relationship was first identified. Where an established proximate relationship could not be found, courts must undertake a full proximity analysis. To determine whether the close and direct relationship existed, courts must examine all relevant factors arising from the relationship. In cases of pure economic loss arising from negligent misrepresentation or performance of a service, two factors were determinative in the proximity analysis; the defendant's undertaking and the plaintiff's reliance. Where the defendant undertook to provide a representation or service in circumstances that invited the plaintiff's reasonable reliance, the defendant became obligated to take reasonable care and the plaintiff had a right to rely on the defendant's undertaking. These corollary rights and obligations created a relationship of proximity. Any reliance on the part of the plaintiff, which fell outside of the scope of the defendant's undertaking, necessarily fell outside the scope of the proximate relationship and, therefore, of the defendant's duty of care. This principle properly limited liability on the basis that the defendant could not be liable for a risk of injury against which he did not undertake to protect.

W. N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913), 23 Yale L.J. 16, at pp. 49-50); Haig, at p. 477; Caparo Industries plc. v. Dickman, [1990] 1 All E.R. 568 (H.L.), at pp. 637-38; Glanzer v. Shepard, 135 N.E. 275 (N.Y. 1922) at pp. 275-76; Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at pp. 445-46; E.J. Weinrib, "The Disintegration of Duty" (2006), 31 Adv. Q. 212, at p. 230 and Weinrib; A. Beever, Rediscovering the Law of Negligence (2007), at pp. 293-94 ref.

For assessing reasonable foreseeability in the prima facie duty of care analysis, it entailed asking whether an injury to the plaintiff was a reasonably foreseeable consequence of the defendant's negligence. Reasonable foreseeability concerned the likelihood of injury arising from the defendant's negligence. The purpose underlying the undertaking and the corresponding reliance limited the type of injury that could be reasonably foreseen to result from the defendant's negligence. An injury to the plaintiff would be reasonably foreseeable if the defendant should have reasonably foreseen that the plaintiff would rely on his or her representation and such reliance would, in the particular circumstances of the case, be reasonable. Both the reasonableness and the reasonable foreseeability of the plaintiff's reliance would be determined by the relationship of proximity between the parties.

At the second stage of the 'Anns/Cooper framework', the question was whether there were residual policy considerations outside the relationship of the parties that may negate the imposition of a duty of care. This stage was not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Factors to be considered included whether the law already provided a remedy; whether the recognition of the duty of care created 'spectre' of unlimited liability to an unlimited class, and whether there were other reasons of broad policy that suggested that the duty of care should not be recognized. Such policy inquiry was significant within the 'Anns/Cooper framework' and followed the proximity and foreseeability inquiries. The policy inquiry assessed whether, despite the proximate relationship between the parties and the reasonably foreseeable quality of the plaintiff's injury, the defendant should nonetheless be insulated from liability. Since policy inquiry could limit liability in the face of findings of both proximity and reasonable foreseeability it should be narrowly relied upon.

Yuen Kun Yeu v. Attorney-General of Hong Kong, [1988] 1 A.C. 175 (P.C.) and Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd., [1993] 3 S.C.R. 206, at p. 218 ref.

(b) Torts---

----Professional negligence--- Duty of care--- Scope--- Negligent misrepresentation or performance of service by auditor---Financial manipulation/fraud committed by Directors of a company---Auditor failing to discover such fraud---Company going into liquidation---Question as to whether auditor breached his duty of care and therefore was liable for company's losses, and, if yes, then what would be the quantum of damages---[Per Gascon and Brown JJ (Majority view)] Duty of care was established where "proximity" between parties and "reasonably foreseeability of injury" were established---In the present case, while the Directors were engaged in financial manipulation the auditor issued a press release and a comfort letter for the purpose of soliciting investment for the company, and also carried out the audit---First requirement of "proximity" between the parties was thus established---As for the second requirement of "reasonably foreseeability of injury" auditor's negligence in relation to the press release and the comfort letter resulted in injuries that were not reasonably foreseeable---Auditor's services in such regard were engaged for the purpose of soliciting investment, not management oversight---As company's losses did not flow from a failure to solicit investment, company could not be allowed to recover for the increase in its liquidation deficit---However, recovery for the increase in company's liquidation deficit which followed or resulted from the audit should be allowed---Increase in company's liquidation deficit fell within the duty of care owed by the auditor to the company in relation to the preparation of a statutory audit, the express purpose of which was to assist the company in management oversight---Auditor owed the company duty of care, which it breached---Remoteness of loss was not a bar to the company's recovery---Auditor could not rely on either the defence of illegality or of contributory fault, because the fraudulent acts of company's Directors could not be attributed to the corporation---[Per McLachlin C.J (Minority view)]: Scope of auditor's duty of care was defined solely by the purposes for which the audit statements were prepared---Auditor's wrongful act did not deprive the company of the ability to attract investment capital, and it did not prevent the company from detecting misfeasance in the company's management---Company did not prove that auditor's wrongdoing prevented its shareholders from exercising supervision in a manner that would have ended the company's loss-creating activities at an earlier date---Loss at issue had not been shown to fall within the scope of auditor's duty of care---Policy considerations of 'unfair allocation of loss' and 'indeterminacy' would also preclude imposing liability on the auditor.

Directors of the company in question manipulated the financial records to enhance its success. Company's auditor did not discover such fraud. In August 1997, however, the auditor identified irregularities in the reporting of profit from an asset sale but it did not resign. Instead, for the purpose of helping the company to solicit investment, the auditor helped prepare, and approved, a press release issued in September 1997, which misrepresented the basis for the reporting of the profit. In October 1997, the auditor provided a comfort letter for a public offering. It also prepared company's 1997 audit, which it finalized in April 1998. New equity investors later discovered the fraud. A subsequent investigation and re-audit resulted in restated financial reports. Company filed for insolvency protection in November 1998. It sold its assets and went into receivership in 1999. Company sued its auditor later in tort and contract. Trial judge held that auditor owed a duty of care to provide accurate information to company's shareholders. He held that auditor failed to meet the standard of care under this duty, either when it failed to discover the fraud and act on that discovery in August 1997, or when it signed off on company's 1997 financial statements in April 1998. The trial judge held that the measure of damages was the difference between company's value on the date on which auditor should have resigned and company's value at the time of insolvency. Trial judge reduced this by 25 percent to account for contingencies or trading losses, which he held were too remote to make auditor liable. The trial judge consequently awarded damages to the company for breach of its duty of care, and alternatively for breach of contract. The Court of Appeal upheld the trial judge's award and dismissed auditor's appeal.

Per Gascon and Brown JJ; [Majority view]:

Present case required a full proximity analysis between the client-company and the auditor. From August to October 1997, the services which the auditor provided to the company - particularly its ongoing assistance in relation to the 'press release' and the provision of the 'comfort letter' - were undertaken for the purpose of helping the company to solicit investment. Given such undertaking, company was entitled to rely upon the auditor to carry out these services with reasonable care. It follows that a relationship of proximity arose but only in respect of the content of auditor's undertaking. Losses outside the scope of this undertaking were not recoverable from the auditor. With respect to the press release and the comfort letter, the auditor never undertook to assist company's shareholders in overseeing management; it could not therefore be held liable for failing to take reasonable care to assist such oversight. Given that the company had no right to rely on auditor's representations for a purpose other than that for which the auditor undertook to act, company's reliance was neither reasonable nor reasonably foreseeable. Consequently, the increase in company's losses or liquidation deficit, which arose from that reliance, was not a reasonably foreseeable injury. Because no prima facie duty of care arose, there was no need to consider residual policy considerations.

Duty was owed by an auditor in preparing a statutory audit and a claim by a corporation for losses resulting from a negligent statutory audit could succeed. A statutory audit was prepared to allow shareholders to collectively supervise management and to take decisions with respect to the overall administration of the corporation. Such function could not be discharged by the company's shareholders in the present case by reason of auditor's negligent 1997 audit. Auditor did not alter the purpose for which it undertook to provide the 1997 audit or disclaim liability in relation to that purpose. Proximity was therefore established in relation to the statutory audit, on the basis of the previously recognized proximate relationship. In addition, the type of injury the company suffered was a reasonably foreseeable consequence of auditor's negligence. Through the 1997 audit, the auditor undertook to assist company's shareholders in scrutinizing management conduct. By negligently conducting the audit, and impairing company's shareholders' ability to oversee management, the auditor exposed the company to reasonably foreseeable risks, including losses that would have been avoided with a proper audit. Because proximity was based on a previously recognized category, there was no need to consider residual policy considerations. Auditor owed the company duty of care, which it breached. Auditor could not rely on either the defence of illegality or of contributory fault, because the fraudulent acts of company's directors could not be attributed to the corporation.

Remoteness was not a bar to company's recovery. Remoteness examined whether the harm was too unrelated to the wrongful conduct to hold the defendant fairly liable. It overlapped conceptually with the reasonable foreseeability analysis but the duty of care analysis was concerned with the type of injury that was reasonably foreseeable as flowing from the defendant's conduct, whereas the remoteness analysis was concerned with the actual injury suffered by the plaintiff. However, the loss in the present case, which stemmed from auditor's failure to fulfill the specific undertaking it made to the company in relation to the 1997 audit was reasonably foreseeable.

A.M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 360 and L. N. Klar and C.S.G. Jefferies, Tort Law, (6th ed. 2017), at p. 565 ref.

Trial judge and Court of Appeal erred in finding that auditor's negligence in relation to the press release and comfort letter resulted in injuries that were reasonably foreseeable in light of the proximate relationship between the parties. At that time, auditor's services were engaged for the purpose of soliciting investment, not management oversight. As company's losses did not flow from a failure to solicit investment, company could not be allowed to recover for the increase in its liquidation deficit beginning in the fall of 1997. However, recovery for the increase in company's liquidation deficit which followed the 1997 audit should be allowed. Increase in company's liquidation deficit fell within the duty of care owed by the auditor to the company in relation to the preparation of a statutory audit, the express purpose of which was to assist the company in management oversight. Trial judge assessed company's damages following the 1997 audit at $53.9 million. Applying the trial judge's 25 percent contingency reduction to this amount resulted in a final damages assessment of $40,425,000. This was the amount for which the auditor was liable. At trial, the company conceded that its losses for negligent performance of a service or breach of contract would be identical. Therefore, the same quantum of liability on auditor applied for the concurrent claim in breach of contract.

Per McLachlin C.J., dissenting [Minority view]:

Audit statements were prepared in the present case for three purposes; first, to report accurately on company's finances and provide it with audit opinions on which it could rely for the purpose of attracting investment; second, to uncover errors or wrongdoing for the purpose of enabling the company itself to correct or otherwise respond to the misfeasance; and, third, to provide audit reports on which company's shareholders could rely to supervise its management. Scope of auditor's duty of care was defined solely by these three purposes.

Auditor's wrongful act did not deprive the company of the ability to attract investment capital. In fact, the company attracted a great deal of capital on the strength of auditor's statements. Likewise, auditor's wrongful act did not prevent the company from detecting misfeasance in the company's management, which the company would have corrected had it known. Finally, the company did not prove that auditor's wrongdoing prevented its shareholders from exercising supervision in a manner that would have ended the company's loss-creating activities at an earlier date. The trial judge did not find that company's shareholders relied on auditor's negligent audit statements; or that had they received and relied on accurate statements; or that they would have acted in a way that would have prevented the company from carrying on business and diminishing its assets in the period between the issuance of the relevant statements and company's insolvency. Crucially, the trial judge did not ask whether the shareholders had in fact relied on the audits and he did not ask whether, if they had relied, this reliance prevented them from taking steps to alter course. Finally, he did not ask whether these actions, had they been taken, would have prevented the losses that the company built up during the seven-month period in question. If the trial judge had asked these questions, he would have been obliged to answer them in the negative, since the company offered no proof to support affirmative answers. As a result, the factual basis for establishing loss on the basis of shareholder supervision was entirely lacking.

Since the loss at issue had not been shown to fall within the scope of auditor's duty of care, the first step of the test for recovery of pure economic loss arising from a negligent misrepresentation i.e., whether duty of care existed between the parties, was not established. It was therefore unnecessary to go on to the second step i.e. whether prima facie liability was negated by policy considerations unrelated to the relationship between the parties. However, were it necessary to do so, the policy considerations of 'unfair allocation of loss' and 'indeterminacy' would preclude imposing liability on the auditor.

Company could not recover the losses it claimed against the auditor. The claim in tort must be dismissed. The result was the same with respect to company's action in contract.

Per Gascon and Brown JJ:

(c) Torts---

----Damages---Defence of illegality---Scope---Said defence barred an otherwise valid action in tort on the basis that the plaintiff had engaged in illegal or immoral conduct and, therefore, should not recover---Grounded in public policy, defence of illegality was available in very limited circumstances, only where it was necessary to preserve the "integrity of the justice system"---Integrity of the justice system would only be compromised where a damage award in a civil suit would, in effect, allowed a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law.

Hall v. Hebert, [1993] 2 S.C.R. 159, at p. 169 and British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27, at para. 20 ref.

Per McLachlin C.J.:

(d) Torts---

----Professional negligence---Negligent misrepresentation---Recovery of pure economic (financial) loss---Limitations---'Duty of care' and 'remoteness of loss'---Scope---Recovery of pure economic loss flowing from negligent misstatement could be limited on two basis; first where the scope of the duty of care of the advice-giver did not cover the loss claimed; and, second where the loss was too remote from the negligent act and thus was not legally caused by that act---Both inquiries invoked similar considerations and arrived at the same point---Scope of the duty of care inquiry looked to the relationship between the defendant's advice and the plaintiff's loss; it asked if that relationship was proximate---In cases of economic loss, it inquired into the purpose for which the advice was given and asked whether a reasonable person would have expected, or foreseen, that negligent advice would lead to the loss in question by virtue of the plaintiff's reliance on the advice---Remoteness inquiry looked at the wrongdoing and its proximity to the loss claimed---Factors to be considered in such regard were not closed; the advice-giver's knowledge of the claimant's circumstances, the reasonable expectations arising from the relationship, and the presence of intervening factors that led to the loss were some of the factors required for such inquiry.

(e) Torts---

----Professional negligence---Negligent misrepresentation by auditor---Auditor, liability of---Scope---'Duty of care' and 'remoteness of loss'---Auditor that provided a year-end report for the purpose of enabling a company's shareholders to supervise management did not, absent proof, assume responsibility for what the shareholders decided to do with that information---Purpose of an annual audit report was to inform shareholder decision making, not to govern it---Auditor did not underwrite the entire risk associated with the shareholders' exercise of business judgment; it was liable only for exposing shareholders to the risk of the information it had provided being wrong---Even if the whole loss would have been avoided if the auditor had met the standard of care, the company may recover in damages only that part of the loss that may be attributed to the auditor's breach of its duty of care, which was restricted by the purpose or purposes for which it provided its opinion---Auditor was not liable for the indeterminate quantum of loss that the shareholders' course of action (or inaction) may trigger, since determining that course of action was beyond the auditor's undertaking of responsibility, and thus outside the scope of its duty of care---Similarly, loss that could not be attributed to the auditor's breach would be too remote to recover.

Peter H. Griffin, Matthew Fleming, Scott Rollwagen and Nina Bombier for the appellant.

Solicitors for the appellant: Lenczner Slaght Royce Smith Griffin, Toronto; Dentons Canada, Toronto.

Peter F. C. Howard, Patrick O'Kelly, Nicholas McHaffie and Aaron Kreaden for the respondent.

Solicitors for the respondent: Stikeman Elliott, Toronto and Ottawa.

Markus Koehnen, David Kent and Jeffrey Levine for the intervener the Canadian Coalition for Good Governance.

Solicitors for the intervener the Canadian Coalition for Good Governance: McMillan, Toronto.

Guy J. Pratte, Nadia Effendi and Duncan A. W. Ault for the intervener Chartered Professional Accountants of Canada.

Solicitors for the intervener Chartered Professional Accountants of Canada: Borden Ladner Gervais, Toronto and Ottawa.

2018 S C M R 924

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ.

CANADIAN BROADCASTING CORPORATION---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

and

CTV, a Division of Bell Media Inc., Global News, a Division of Corus Television Limited Partnership, The Globe and Mail Inc., Postmedia Network Inc., Vice Studio Canada Inc., Aboriginal Peoples Television Network and AD IDEM/Canadian Media Lawyers Association---Interveners

Decided on 9th February, 2018.

(On appeal from the Court of Appeal of Alberta)

Injunction---

----Mandatory interlocutory injunction, grant of---Principles and scope---Ban on publication which revealed identity of a victim---Upon the prosecution's request, a mandatory ban prohibiting the publication, broadcast or transmission in any way of any information that could identify the victim was ordered [pursuant to S. 486.4(2.2) of the Canada Criminal Code]---Prior to the issuance of the publication ban, a media outlet posted information revealing the identity of the victim on its website---After media outlet refused to remove such information, the prosecution sought an order citing the media outlet in criminal contempt of the publication ban and an interlocutory injunction directing the removal of the victim's identifying information---Trial judge concluded that the prosecution had not established the requirements for a mandatory interlocutory injunction, and dismissed its application---Court of Appeal allowed the appeal and granted the mandatory interlocutory injunction---Validity---To obtain a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant's case at the first stage [of the RJR-MacDonald test] was not whether there was a serious issue to be tried, but rather whether the applicant had demonstrated a strong prima facie case---Potentially severe consequences for a defendant which could result from a mandatory interlocutory injunction further demanded an extensive review of the merits at the interlocutory stage---Test for obtaining mandatory interlocutory injunction entailed showing a strong likelihood on the law and the evidence presented that, at trial, the applicant would be ultimately successful in proving the allegations set out in the originating notice---Applicant must also demonstrate that irreparable harm would result if the relief was not granted and that the balance of convenience favoured granting the injunction---Decision to grant or refuse an interlocutory injunction was a discretionary exercise, with which an appellate court must not interfere solely because it would have exercised the discretion differently---Appellate intervention was justified only where the Trial judge proceeded on a misunderstanding of the law or of the evidence before him; where an inference could be demonstrated to be wrong by further evidence that had since become available; where there had been a change of circumstances, or where the decision to grant or refuse the injunction was so aberrant that it must be set aside on the ground that no reasonable judge could have reached it---Perusal of the originating notice in the present case showed that the prosecution brought an application for criminal contempt and sought an interim injunction in that proceeding---Prosecution thus proceeded on the basis that its application for an interlocutory injunction was sought in respect of the citation for criminal contempt---Two applications were linked, such that the latter was tied not to the mere placement by the media outlet of the victim's identifying information on its website, but to the sought-after criminal contempt citation---Each prayer for relief did not launch an independent proceeding; rather, both related to the alleged criminal contempt --- Originating application must state both the claim and the basis for it and the remedy sought, but in the present case the prosecution's originating notice disclosed only a single basis for seeking a remedy i.e. media outlet's alleged criminal contempt of court---Prosecution was, therefore, bound to show a strong prima facie case of criminal contempt of court---Prosecution's burden was not to show a case for criminal contempt that leant one way or another, but rather a case, based on the law and evidence presented, that had a strong likelihood that it would be successful in proving media outlet's guilt of criminal contempt of court---Such burden was not an easy burden to discharge and the prosecution had failed to do so in the present case--- Trial judge applied the correct legal test in deciding the prosecution's application and his decision that the prosecution case failed to satisfy that test did not, in the circumstances, warrant appellate intervention--- Appeal was allowed accordingly.

RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applied [Canada] Criminal Code, R.S.C. 1985, c. C-46, s. 486.4(2.1)(2.2); Alberta Rules of Court, Alta. Reg. 124/2010, r. 3.8(1); Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at pp. 154-55; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 at p. 1046 (H.L.) and Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 para. 22 ref.

Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 distinguished.

Frederick S. Kozak, Q.C., Sean Ward, Tess Layton and Sean Moreman, for the Appellant.

Iwona Kuklicz and Julie Snowdon, for the Respondent.

Iain A.C. MacKinnon, for the Interveners.

2018 S C M R 967

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ.

DELTA AIR LINES INC.---Appellant

Versus

GABOR LUKACS---Respondent

and

ATTORNEY GENERAL OF ONTARIO, CANADIAN TRANSPORTATION AGENCY, INTERNATIONAL AIR TRANSPORT ASSOCIATION AND COUNCIL OF CANADIANS WITH DISABILITIES---Interveners

Decided on 19th January, 2018.

(On appeal from the Federal Court of Appeal)

Per McLachlin C.J; Wagner, Gascon, Côté, Brown and Rowe JJ. concurring; Abella, Moldaver and Karakatsanis JJ. dissenting.

(a) Administrative law---

----Administrative body---[Government] Transportation Agency---Complaint---Maintainability---Standing (locus standi) of complainant---'Public interest standing' and 'private interest standing'---Discretion of administrative body to dismiss complaint---Scope---Complainant alleged that a certain air carrier's practices regarding transportation of obese persons were discriminatory and filed a complaint before the Transportation Agency ("the Agency")---Agency dismissed the complaint on basis that complainant failed to meet the tests for private interest standing and public interest standing as developed by and for courts of civil jurisdiction; that complainant lacked private interest standing because he was not himself obese, and so could not claim to be aggrieved or affected or to have some other sufficient interest; that complainant lacked public interest standing because his complaint did not challenge the constitutionality of legislation or the illegal exercise of an administrative authority---Appellate Court allowed complainant's appeal and held that a strict application of the law of standing as applied in courts was inconsistent with the Agency's enabling legislation, and directed that the matter be returned to the Agency to determine, otherwise than on the basis of standing, whether it would inquire into, hear and decide the complaint--- Validity---[Per McLachlin C.J. (Majority view): Relevant statute (Canada Transportation Act, S.C. 1996) bestowed broad discretion on the Agency to hear and determine complaints---In the present case, the Agency did not reasonably exercise its discretion to dismiss the complaint---Decision was reasonable if it was justifiable, transparent and intelligible, and fell within a range of possible, acceptable outcomes---Agency's decision that the complainant lacked standing did not satisfy the requirements of justification, transparency, and intelligibility for two reasons; first, the Agency presumed public interest standing was available and then applied a test that could never be met---Any valid complaint against an air carrier would impugn the terms and conditions established by a private company---Such a complaint could never, by its very nature, be a challenge to the constitutionality of legislation or the illegality of administrative action---Imposition of a test that could never be met could not be what Parliament intended when it conferred a broad discretion on an administrative body such as the Agency to decide whether to hear complaints---Agency's application of the test was also inconsistent with the rationale underlying public interest standing, which was for the court to use its discretion, where appropriate, to allow more plaintiffs through the door---Agency did not maintain a flexible approach to said question and in so doing unreasonably fettered its discretion---Secondly, the total denial of public interest standing was inconsistent with a reasonable interpretation of the Agency's legislative scheme---Applying the tests for private and public interest standing in the way the Agency did in the present case would preclude any public interest group or representative group from ever having standing before the Agency, regardless of the content of its complaint---In effect, only a person who was himself/herself targeted by the impugned policy could bring a complaint, which would be contrary to the scheme of the relevant statute [(Canada Transportation Act, S.C. 1996)---Parliament had seen fit to grant the Agency broad remedial authority and to allow the Agency to act to correct discriminatory terms and conditions before passengers actually experienced harm---To refuse a complaint based solely on the identity of the group bringing it prevented the Agency from hearing potentially highly relevant complaints, and hindered its ability to fulfil the statutory scheme's objective---Appellate Court should not have held that standing rules could not be considered by the Agency in its reconsideration of the matter---Better approach would be to send the matter back to the Agency for reconsideration in its entirety---Deference required that the Agency determined for itself how to use its discretion, provided it did so reasonably---Supreme Court (Canada) remitted the matter to the Agency to reconsider the matter in whole, whether on the basis of standing or otherwise]---[Per Abella, J, dissenting (Minority view): Nothing in the Agency's mandate circumscribed its ability to determine how it would decide what cases to hear---Parliament had given the Agency wide discretion to choose, according to its own institutional constraints and demands, how it would promote its overall mandate to regulate and adjudicate national transportation issues---Agency's power to process and resolve complaints was framed in discretionary language, giving the Agency the authority to make its own rules about how it carried on its work, as well as the manner of, and procedures for, dealing with matters before the Agency---In the present case, the Agency developed its standing rules in full accordance with its legislative mandate, and there is no basis for interfering with them---Agency was entitled to apply a gate keeping or screening mechanism which enabled it to balance, in a transparent and effective manner, the Agency's various competing interests and demands, such as access and resources---Complainant brought a complaint with no underlying facts, no representative claimants and no argument; his complaint was purely theoretical, his interest in the issues was academic, and the proposed suit did not constitute an effective and reasonable means of bringing the issue before the Agency---Agency's decision to deny the complaint on the basis that the complainant lacked standing was reasonable in the circumstances, thus, it was unnecessary to remit the matter to the Agency]---Appeal was partly allowed.

Canada Transportation Act, S.C. 1996, c. 10, ss. 5, 17, 25, 37, Part V.; Canadian Transportation Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104, s. 5(1); [Canada] Air Transportation Regulations, SOR/88-58, ss. 111, 113, 113.1; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Petro-Canada v. Workers' Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135 and Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267 ref.

Per McLachlin, C.J [Majority view]

(b) Review---

----Administrative decision, review of---Scope---Reviewing court may supplement the reasons given in support of an administrative decision, but it could not ignore or replace the reasons actually provided---Additional reasons must supplement and not supplant the analysis of the administrative body.

Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 353, 17 Imm. L.R. (4th) 154, at para. 28 ref.

Per Abella, J; dissenting with McLachlin, C.J [Minority view]

(c) Administrative law---

----Administrative body/Tribunal---Complaint---Standing (locus standi) of complainant---Scope and principles---Standing rules existed to enable a court or tribunal to economize and prioritize its resources, and ensure that it benefited from contending points of view that were advanced by those best placed to advance them---Requiring a tribunal to adjudicate even marginal or inadequately substantiated complaints would grind the operation of a tribunal to a halt and could be "devastating" to private litigants---Tribunals were not required to follow the same procedures courts used, but when a tribunal choose to apply and exercise its broad legislative mandate by borrowing an approach to standing long sanctioned by the courts as an effective and principled way to determine which cases it would hear, reviewing courts should not interfere merely because the court might have applied the mandate differently---Where the adopted standing procedures flowed from the same concerns and rationales as those relied on by courts, there was no reason for a tribunal to be immunized from access to a procedure courts had endorsed---Access to justice demanded that both courts and tribunals be encouraged to develop screening methods to ensure that access to justice would be available to those who needed it most in a timely way---Fact that a Tribunal's governing legislation had a public interest dimension did not preclude it from adopting similar rules of standing to those used by the courts.

Carlos P. Martins and Andrew W. Macdonald for Appellant.

Cabor Lukács, on his own behalf.

Heather Mackay and Edmund Huang, for the intervener the Attorney General of Ontario.

Allan Matte and Mante Molepo, for the intervener the Canadian Transportation Agency.

David Neave and Derek Bell, for the intervener the International Air Transport Association.

Byron Williams, Joelle Pastora Sala and Alyssa Mariani, for the intervener the Council of Canadians with Disabilities.

Benjamin Zarnett, as amicus curiae, and Jane Scholes.

2018 S C M R 1284

[Supreme Court of Canada]

Present: McLachlin, C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

MARIE-EVE MAGOON and another---Appellants

Versus

HER MAJESTY THE QUEEN---Respondent

Decided on 13th April, 2018.

(On appeal from the Court of Appeal for Alberta)

(a) Criminal law---

----'Unlawful confinement'--- Meaning and principles--- Unlawful confinement occurred if for any significant period of time [the victim] was coercively restrained or directed contrary to his/her wishes, so that he/she could not move about according to his/her own inclination and desire---Unlawful confinement consisted of restricting the victim's liberty, but not his or her ability to escape---Restriction need not be to a particular place or involve total physical restraint---Restraint of the victim through physical acts of violence was sufficient but not necessary to establish unlawful confinement---Confinement could be effected by fear, intimidation and psychological and other means.

R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24; R. v. Bottineau, [2006] O.J. No. 1864 (QL) (S.C.J.), aff'd 2011 ONCA 194, 269 C.C.C. (3d) 227; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) and R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 89 ref.

(b) Criminal law---

----'Unlawful confinement' of child---Question as to whether parents could be liable for unlawful confinement of their own children---Legal standard for proving unlawful confinement was the same for children as for adults, but in the case of a parent-child relationship, courts must keep in mind that children were inherently vulnerable and dependent, and routinely received and expected directions from their parents---Prosecution does not have to prove some special or extreme form of confinement in cases involving parents and their children---Finding of confinement did not require evidence of a child being physically bound or locked up; it could also result from evidence of controlling conduct---Although parents were lawfully entitled to restrict the liberty of their children in accordance with the best interests of the child, if a parent engaged in abusive or harmful conduct toward his or her child that surpassed any acceptable form of parenting, the lawfulness of his or her authority to confine the child ceased---Disciplining a child by restricting his or her ability to move about freely, by physical or psychological means, contrary to the child's wishes, which exceeded the outer bounds of punishment that a parent or guardian could lawfully administer, constituted unlawful confinement.

(c) Criminal law---

----'Unlawful confinement' and 'murder'---Question as to whether 'unlawful confinement' and 'murder' of the victim was part of the same transaction justifying a conviction for 'first degree murder'---Victim, who was six years old, died at the home of her father and stepmother ('accused persons')---Victim was allegedly burned, forced for hours to run up and down the stairs as a form of punishment, and severely beaten because of which she suffered damage to her internal organs, and a subdural hematoma and cerebral swelling caused by blows to the head---Accused persons did not seek medical attention for the victim until she was in complete cardiac and respiratory failure---Accused persons were charged for unlawfully confining the victim while inflicting fatal injuries on her, and were accordingly convicted of first degree murder by the Court of Appeal---Held, that physical abuse of the victim and coercive directions given to her by her parents continued until her injuries rendered her unconscious---Victim was confined and coercively restrained and directed contrary to her wishes---Such confinement was clearly unlawful---Acts of "discipline" were grossly disproportionate, cruel, degrading, deliberately harmful, and far exceeded any acceptable form of parenting---Unlawful confinement and murder of victim were two distinct criminal acts that formed part of a single transaction---Unlawful confinement and the assaults leading to victim's death were part of the same single transaction of coercion and abuse, and the unlawful confinement persisted right up to the moment victim lost consciousness---Not all acts of violence against the victim were tied to the fatal blows, some of the assaults that met the causation standard for the murder were distinct from the acts of confinement---Moreover the assaults against the victim were part, but not all, of what established the unlawful confinement, since the confinement also involved non-physical acts of coercion---Act of unlawful confinement of the victim was, therefore, not consumed in the act of her killing---Accused persons had been rightly convicted of first degree murder---Appeals were dismissed accordingly.

R. v. Harbottle, [1993] 3 S.C.R. 306 ref.

[Canada] Criminal Code, R.S.C. 1985, c. C-46, ss. 231(5)(e) and 279(2) applied.

Michael Bates and Nicole Rodych, for the Appellant Marie-Eve Magoon.

Brendan M. Miller and Jeinis S. Patel, for the Appellant Spencer Lee Jordan.

Christine Rideout and Andrew Barg, for the Respondent.

2018 S C M R 1478

[Supreme Court of Canada]\

Present: McLachlin C.J., Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ

JOSEPH PETER PAUL GROIA---Appellant

Versus

LAW SOCIETY OF UPPER CANADA---Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF SASKATCHEWAN, LAW SOCIETY TRIBUNAL, ADVOCATES' SOCIETY, BARREAU DU QUÉBEC, CANADIAN CIVIL LIBERTIES ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INDEPENDENT CRIMINAL DEFENCE ADVOCACY SOCIETY, FEDERATION OF LAW SOCIETIES OF CANADA, ONTARIO CROWN ATTORNEYS' ASSOCIATION, ONTARIO TRIAL LAWYERS ASSOCIATION, CANADIAN BAR ASSOCIATION AND CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO---Interveners

Decided on 1st June, 2018.

(On appeal from the Court of Appeal for Ontrio)

Per Moldaver J; McLachlin C.J., Abella, Wagner and Brown JJ. concurring; Côté, J concurring in part; Karakatsanis, Gascon and Rowe, JJ, dissenting in part.

(a) Legal practitioner---

----Professional misconduct---In-court incivility--- Disciplinary proceedings---Finding of professional misconduct by the Law Society (Bar Council)---Appeal---Standard of review---'Reasonableness standard' and 'correctness standard'---Question as to which standard was applicable to Law Society's decision finding lawyer guilty of professional misconduct for in-court incivility---[Per Moldaver J; Majority view] Reasonableness standard applied to Law Society's misconduct findings and sanctions---Decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function were entitled to deference from courts, and were thus presumptively reviewed for reasonableness  Law Society's approach to determining when incivility amounted to professional misconduct and its application of that approach in assessing a lawyer's conduct involved an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it---Determining when in-court behaviour amounted to professional misconduct did not fall under the category of questions of central importance to the legal system as a whole and outside the decision-maker's expertise, for which correctness standard would be appropriate---Although the permissible scope of lawyers' behaviour was arguably of central importance to the legal system as a whole, it could not be said that assessing whether incivility amounted to professional misconduct was outside the Law Society's expertise---To the contrary, Law Society disciplinary tribunals had significant expertise regulating the legal profession, and Law Society disciplinary panels were composed, in part, of other lawyers, who were aware of the problems and frustrations that confronted a practitioner---Furthermore, a deferential standard of review did not threaten a trial judge's power to control his or her courtroom---Trial judge was free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a Law Society's disciplinary decision by a different court---Fact that the behaviour occurred in a courtroom was an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it did not impact on the standard of review---[Per Karakatsanis, Gascon and Rowe, JJ; Majority view] Reasonableness was the applicable standard of review---Fact that a lawyer's behavior occurred in the courtroom did not deprive the Law Society of its legitimate role in regulating the profession nor did it justify heightened judicial scrutiny---[Per Côté, J; Minority view] Where the impugned conduct occurred in a courtroom the Law Society's finding of professional misconduct was reviewable on the correctness standard---Fact that the relevant conduct occurred in a court of law implicated constitutional imperatives about the judiciary's independence and its capacity to control its own processes, and rebutted the presumption of reasonableness---Correctness review/standard was required because the Law Society's inquiry into in-court professional misconduct engaged the contours of the constitutional relationship between the courts and government regulators---Judicial independence was, without question, a cornerstone of democracy and essential to both the impartiality of the judiciary and the maintenance of the rule of law---Inquiry by a law society into a lawyer's in-court conduct risked intruding on the judge's function of managing the trial process and his authority to sanction improper behaviour---To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they saw fit, the judiciary  not a regulatory body, a creature of the political branches of government  should have the final say over the appropriateness of a lawyer's conduct in that sphere---Reasonableness standard of review, which required judicial deference to a Law Society's disciplinary determinations, was inconsistent with such prerogative---Correctness review was required to ensure proper respect for the judiciary's constitutionally guaranteed place in democracy.

Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 42; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 45; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Mouvementlaïquequébécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46 and McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21 ref.

(b) Legal practitioner---

----Professional misconduct---In-court incivility/uncivil behaviour during trial  Law Society (Bar Council)---Multi-factorial, context-specific approach for assessing whether in-court incivility amounted to professional misconduct---Scope---Multi-factorial, context-specific approach for assessing whether a lawyer's in-court behaviour crossed the line into professional misconduct on the basis of incivility was appropriate---First, the importance of civility to the legal profession and the corresponding need to target behaviour that detrimentally affected the administration of justice and the fairness of a particular proceeding had to be recognized---At the same time, the Law Society had to remain sensitive to the lawyer's duty of resolute advocacy; a duty of particular importance in the criminal context because of the client's constitutional right to make full answer and defence---Law Society had to recognize the need to develop an approach that would avoid a chilling effect on the kind of fearless advocacy that was at times necessary to advance a client's cause, and that was both flexible and precise---Rigid definition of when incivility amounted to professional misconduct in the courtroom was neither attainable nor desirable; rather, determining whether a lawyer's behaviour warranted a finding of professional misconduct must remain a context-specific inquiry that was flexible enough to assess behaviour arising from the diverse array of situations in which lawyers found themselves---Standards of civility must be articulated with a reasonable degree of precision---Multi-factorial, context-specific approach struck a reasonable balance between flexibility and precision: it set a reasonably precise benchmark that instructed lawyers as to the permissible bounds of ethical courtroom behaviour, by articulating a series of contextual factors  what the lawyer said, the manner and frequency in which it was said, and the presiding judge's reaction to the lawyer's behaviour  that ought generally to be considered when evaluating a lawyer's conduct, and by describing how those factors operated when assessing a lawyer's behaviour---With respect to what the lawyer said, while not a standalone "test", prosecutorial misconduct allegations, or other challenges to opposing counsel's integrity, crossed the line into professional misconduct unless they were made in good faith and had a reasonable basis---Requiring a reasonable basis for allegations protected against unsupportable attacks that tarnished opposing counsel's reputation without chilling resolute advocacy---Reasonable basis requirement, however, was not an exacting standard; it was not professional misconduct on account of incivility to challenge opposing counsel's integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted---Nor was it professional misconduct to advance a novel legal argument that was ultimately rejected by the court---Good faith inquiry asked what the lawyer actually believed when making the allegations---In contrast, the "reasonable basis" inquiry required a Law Society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations---Looking at the reasonableness of a lawyer's legal position at such stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context  this would allow a Law Society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the Law Society's opinion, ought to have known or ought to have done---Such approach would risk unjustifiably tarnishing a lawyer's reputation and chilling resolute advocacy---With respect to the frequency of what was said and the manner in which it was said, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language were more likely to warrant disciplinary action---As for the presiding judge's reaction to the lawyer's behaviour, when the impugned behaviour occurred in a courtroom, what, if anything, the judge did about it and how the lawyer modified his or her behaviour thereafter became relevant---Finally, the multi-factorial, context-specific approach also allowed the Law Society disciplinary tribunals to proportionately balance the lawyer's expressive freedom with its statutory mandate in any given case---Flexibility built into the context-specific approach to assessing a lawyer's behaviour allowed for a proportionate balancing in any given case---Considering the unique circumstances in each case enabled Law Society disciplinary tribunals to accurately gauge the value of the impugned speech, which, in turn, allowed for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflected a proportionate balancing of the lawyer's expressive rights and the Law Society's statutory mandate.

(c) Legal practitioner---

----Professional misconduct--- Scope--- In-court incivility/uncivil behaviour during trial---Allegations of impropriety made against the opposing counsel on the basis of a sincerely held but erroneous legal beliefs---Disciplinary proceedings against lawyer by the Law Society---Defendant-lawyer, was hired by a client to defend him in a trial---Trial was characterized by a pattern of escalating acrimony and by a series of disputes between the defendant-lawyer and prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by the defendant-lawyer---Much of the disagreement stemmed from defendant-lawyer's honest but mistaken understanding of the law of evidence and the role of the prosecutor---During the trial the judge directed defendant-lawyer to stop repeating his misconduct allegations, which direction was followed---After conclusion of trial, the Law Society brought disciplinary proceedings against defendant-lawyer on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial---Defendant was found guilty of professional misconduct, his licence to practice law was suspended for two months and he was ordered to pay nearly $247,000 in costs---On appeal, the Law Society Appeal Panel also concluded that defendant was guilty of professional misconduct, but it reduced his suspension to one month and decreased the costs award against him to $200,000---In its decision, the Appeal Panel developed a multi-factorial, context-specific approach for assessing whether in-court incivility amounted to professional misconduct---[Per Moldaver J; Majority view: Although the approach adopted by the Appeal Panel was appropriate, the finding of professional misconduct against the defendant on the basis of incivility was unreasonable---First, even though the Appeal Panel accepted that the defendant's allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis---Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief could not ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the prosecutors, the defendant was not deliberately misrepresenting the law and was not ill-motivated---Despite this, the Appeal Panel used defendant's legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety---Such a finding was not reasonably open to the Appeal Panel---Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief would be reasonably based as long as they had a sufficient factual foundation---Question for incivility purposes was not whether the defendant was right or wrong on the law; rather, the question was whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation---In the present case, defendant's allegations did have a factual foundation---Defendant's legal errors, coupled with the prosecutors' conduct, provided the reasonable basis for his allegations---Accordingly, based on the Appeal Panel's own approach, defendant's allegations were made in good faith and they were reasonably based---Second, the other contextual factors in the present case could not reasonably support a finding of professional misconduct against the defendant on the basis of incivility---Evolving abuse of process law at the time accounted, at least in part, for the frequency of defendant's allegations; the presiding judge took a passive approach in the face of defendant's allegations; and defendant's behaviour changed in response to the directions of the trial judge---Appeal Panel failed to account for such contextual factors in its analysis---Only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that the defendant was not guilty of professional misconduct---Since the defendant, in the circumstances of the present case, could not reasonably be found guilty of professional misconduct, the complaints against him were dismissed and there was no need to remit the matter to the Law Society---Appeal was allowed accordingly]---[Per Karakatsanis, Gascon and Rowe, JJ; Minority view: Appeal Panel's decision was reasonable and there was no basis to interfere with its findings---Reviewing court could not supplement the decision maker's (Appeal Panel's) reasoning for the purpose of undermining it---Neither may a court reweigh evidence or contextual factors considered by the decision maker (Appeal Panel)---At all times, the starting point of reasonableness review was the reasons for the decision under review---Reviewing court should give effect to the Appeal Panel's decision to adopt an approach with both subjective and objective considerations (i.e. to require good faith and a reasonable basis for allegations of prosecutorial misconduct or that impugn the integrity of an opponent)---Appeal Panel was free to consider both the factual and legal basis for the allegations at issue, and to conclude that there was no reasonable basis in fact or in law for defendant's allegations---Appeal Panel's mandate permitted it to determine any question of fact or law that arose in a proceeding before it---As such, the Appeal Panel was entitled to consider whether there was a reasonable basis for the allegations---Reasonableness, as opposed to good faith, implied consideration of whether the allegations, objectively, had a legal or factual basis---Appeal Panel's approach was justified by the serious consequences that irresponsible attacks could have on opposing counsel's reputation as well as the public perception of the justice system---Collapsing the subjective and objective elements of such approach restricted the Appeal Panel's ability to assess the reasonableness of legal submissions to determining whether the lawyer was acting in good faith---Appeal Panel was free to hold that a lawyer who erroneously alleged prosecutorial misconduct or impugned the integrity of opposing counsel should not be shielded from professional sanction because of his or her own incompetence---In determining whether the defendant's allegations crossed the line into professional misconduct, the Appeal Panel applied its expertise and decided how to assess the evidence as a whole---Appeal Panel was open to weigh the evidence in the way it did and its findings were amply supported by the record, as were its conclusions on the cumulative effects of defendant's conduct---Ultimately, the reasons supported the Appeal Panel's conclusion that the defendant was engaged in professional misconduct---Both the evidentiary foundation and the logic of the reasons were sound and decision was justifiable, intelligible, and transparent and fell within the range of reasonable outcomes---Appeal Panel's decision also proportionately balanced the value of freedom of expression with its mandate to ensure that lawyers conducted themselves professionally---Appeal Panel was alert to the importance of lawyers' expressive freedoms and the critical role of zealous advocacy in the legal system---In order to ensure that these principles were limited no more than necessary, the Appeal Panel adopted a contextual approach that took into account the dynamics of the courtroom setting---Appeal Panel was free to reasonably conclude that in the context of the trial, zealous advocacy did not require the defendant to make unfounded allegations of prosecutorial misconduct, to impugn the integrity of his opponents or to frequently resort to invective when describing them---Setting aside the Appeal Panel's finding of professional misconduct in the present case would immunize erroneous allegations from sanction by the Law Society, validate improper conduct and threaten to undermine the administration of justice and it also had the potential to undermine the ability of Law Societies to promote the efficient resolution of disputes].

Earl A. Chernaik, Q.C., and Martin Mendelzon for Appellant.

J. Thomas Curry, Jaan E. Lilles and Andrew M. Porter for Respondent.

James D. Sutton and Allyson Ratsoy, for the intervener the Director of Public Prosecutions.

Milan Rupic, for the intervener the Attorney General of Ontario.

Sharon H. Pratchler, Q.C., for the intervener the Attorney General of Saskatchewan.

Lisa Mallia, for the intervener the Law Society Tribunal.

Terrence J. O'Sullivan, Deborah C. Templer and Matthew R. Law, for the intervener the Advocates' Society.

André-Philippe Mallette, for the intervener Barreau du Québec.

Cara Zwibel, for the intervener the Canadian Civil Liberties Association.

Joseph J. Arvay, Q.C., and Catherine George, for the interveners the British Columbia Civil Liberties Association and the Independent Criminal Defence Advocacy Society.

Gregory DelBigio, Q.C., and Alison M. Latimer, for the intervener the Federation of Law Societies of Canada.

Paul Cavalluzzo and Adrienne Telford, for the intervener the Ontario Crown Attorneys' Association.

Allan Rouben, Thomas Connolly and Darcy Romaine, for the intervener the Ontario Trial Lawyers Association.

Pierre Bienvenu, Andres C. Garin and Jean-Christophe Martel, for the intervener the Canadian Bar Association.

Frank Addario, Samara Secter and Robin Parker, for the intervener the Criminal Lawyers' Association of Ontario.

2018 S C M R 1551

[Supreme Court of Canada]

Present: McLachlin C.J., Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ

WING WHA WONG---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

and

ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS, CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, CANADIAN ASSOCIATION OF REFUGEE LAWYERS, ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL, CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC, SOUTH ASIAN LEGAL CLINIC OF ONTARIO, CANADIAN COUNCIL FOR REFUGEES, CANADIAN CIVIL LIBERTIES ASSOCIATION AND AFRICAN CANADIAN LEGAL CLINIC---Interveners

Decided on 25th May, 2018.

(On appeal from the Court of Appeal for British Columbia)

Per Moldaver, Gascon, Brown, JJ; Rowe, J concurring; McLachlin C.J., Abella and Wagner JJ. dissenting.

Criminal trial---

----Plea of guilty---Scope---Collateral consequences---Withdrawal of guilty plea---Principles---Subjective prejudice caused to accused---Question as to whether accused could withdraw his guilty plea where he was unaware of the collateral consequences of such plea---Accused pleaded guilty to trafficking in narcotics---Accused was not made aware that his conviction and sentence could result in loss of his permanent resident status and removal from Canada without any right of appeal---Accused sought to withdraw plea on basis that it was uninformed and gave rise to miscarriage of justice---[Per Moldaver, Gascon, Brown, JJ; Majority view: Society had a strong interest in the finality of guilty pleas and maintaining their finality was important to ensuring the stability, integrity, and efficiency of the administration of justice---Finality of a guilty plea required that such a plea be voluntary, unequivocal and informed, and to be informed, the accused must be aware of the nature of the allegations made against him, the effect of his plea and the consequences of his plea---Accused persons who sought to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea should be required to establish subjective prejudice---To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either opted for a trial and pleaded not guilty; or, pleaded guilty, but with different conditions---Since the original guilty plea was an exercise of the accused's own subjective judgment, it logically followed that the test for withdrawing that plea should also be directed to the accused's subjective judgment---Such inquiry was subjective to the accused, but allowed for an objective assessment of the credibility of the accused's subjective claim---Ultimately, what mattered was the accused's decision to plead guilty or to proceed to trial, and not whether that decision was, to someone else, reckless or irrational---Such framework was premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded, but like all credibility determinations, the accused's claim about what his or her subjective and fully informed choice would have been was measured against objective circumstances---Courts should therefore carefully scrutinize the accused's assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility---Such approach struck the proper balance between finality of guilty pleas and fairness to the accused---Accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds and requiring the accused to articulate a route to an acquittal was antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty---In the present case, the accused was not aware of the immigration consequences of his conviction and sentence and since immigration consequences bore on sufficiently serious legal interests to constitute legally relevant consequences, his guilty plea was uninformed---However, the accused had not shown a reasonable possibility that, having been informed of the legally relevant consequences, he would have either pleaded differently, or pleaded guilty with different conditions---Though the accused filed an affidavit before the Court of Appeal, he did not depose to what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea, therefore he had not established prejudice giving rise to a miscarriage of justice---In such circumstances there was no basis to permit the accused to withdraw his plea---Appeal was dismissed accordingly]---[Per Wagner, J; Minority view: Guilty plea may be withdrawn if the accused showed that he or she was not aware of a legally relevant collateral consequence, and that there was a reasonable possibility he or she would have proceeded differently if properly informed of that consequence---Legally relevant consequence was one which bore on sufficiently serious interests of the accused---For a collateral consequence to be legally relevant and capable of supporting a determination that a guilty plea was sufficiently informed, it would typically be state-imposed and flow fairly directly from the conviction or sentence, and it must have an impact on the serious interests of the accused---Guilty plea would be uninformed if the accused established on a balance of probabilities that he or she was unaware of a collateral consequence that was legally relevant---At such first step of the inquiry, the only concern was whether the consequence was sufficiently serious that it would constitute a legally relevant consequence---Even if it was shown that a guilty plea was uninformed because the accused was unaware of a legally relevant collateral consequence, an uninformed plea may only be set aside on the basis of a miscarriage of justice if it had resulted in prejudice to the accused---At such second stage of the inquiry, a court must be satisfied of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the collateral consequence, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions---Court shall apply an objective standard for such determination, modified to the extent that a court could take the situation and characteristics of the accused before it into account---Applicable standard of proof was a reasonable possibility, which fell between a mere possibility and a likelihood---One need not presume that a reasonable person in the same situation as the accused would have taken the best or single most rational course of action based on the likelihood of success at trial---Inquiry was not concerned with whether it would have been reasonable to plead guilty, instead, the inquiry considered whether there was a reasonable possibility that a similarly situated reasonable person would have proceeded differently if properly informed, in light of the circumstances and the seriousness of the collateral consequence at issue---Such modified objective approach struck a proper balance between the competing interests when an accused sought to withdraw a guilty plea on the ground that he or she was not aware of a legally relevant consequence, and it allowed a court to take the situation and characteristics of the accused into account in order to properly assess whether the uninformed plea had a prejudicial effect in his or her circumstances; it also ensured that an accused could not seek to strike a plea on the ground that he or she was deprived of information that would have been unlikely to have an impact on the decision in the circumstances---Further, the modified objective inquiry mitigated, to a greater extent than a subjective assessment, the inherently speculative nature of the assessment of prejudice flowing from an uninformed plea---In the present case, the loss of permanent resident status and the risk of removal from Canada without any right of appeal constituted legally relevant consequences---Accused was unaware that his guilty plea might carry these immigration consequences which flowed directly from his conviction and sentence---Plea of accused was therefore uninformed---Reasonable possibility existed that a reasonable person in accused's circumstances would have proceeded differently had he or she been aware of such consequences---Guilty plea of accused therefore gave rise to a miscarriage of justice and must be set aside].

Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(iii); R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Henry, 2011 ONCA 289, 277 C.C.C. (3d) 293 and R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334 ref.

Peter H. Edelmann and Erica Olmstead, for the appellant.

Ron Reimer and John Walker, for the respondent.

Karen G. Papadopoulos, for the intervener the Attorney General of Ontario.

David A. Labrenz, Q.C., for the intervener the Attorney General of Alberta.

Ann Ellefsen-Tremblay and Andrej Skoko, for the intervener the Director of Criminal and Penal Prosecutions.

Erika Chozik and Cate Martell, for the intervener the Criminal Lawyers' Association of Ontario.

Lobat Sadrehashemi and Lorne Waldman, for the intervener the Canadian Association of Refugee Lawyers.

Nicholas St-Jacques, Lida Sara Nouraie and Philipe Knerr, for the intervener Association des avocats de la défense de Montréal.

Avvy Yao Yao Go, Vincent Wan Shun Wong and Sukhpreet Sangha, for the interveners the Chinese and Southeast Asian Legal Clinic and the South Asian Legal Clinic of Ontario.

Jared Will and Joshua Blum, for the intervener the Canadian Council for Refugees.

Anil K. Kapoor and Ian B. Kasper, for the intervener the Canadian Civil Liberties Association.

Faisal Mirza and Dena Smith, for the intervener the African Canadian Legal Clinic.

2018 S C M R 1593

[Supreme Court of Canada]

Present: McLachlin C.J. Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

JUDICIAL COMMITTEE OF THE HIGHWOOD CONGREGATION OF JEHOVAH'S WITNESSES (VAUGHN LEE - CHAIRMAN AND ELDERS JAMES SCOTT LANG AND JOE GURNEY) AND HIGHWOOD CONGREGATION OF JEHOVAH'S WITNESSES---Appellants

Versus

RANDY WALL---Respondent

And

CANADIAN COUNCIL OF CHRISTIAN CHARITIES, ASSOCIATION FOR REFORMED POLITICAL ACTION CANADA, CANADIAN CONSTITUTION FOUNDATION, EVANGELICAL FELLOWSHIP OF CANADA, CATHOLIC CIVIL RIGHTS LEAGUE, CHRISTIAN LEGAL FELLOWSHIP, WORLD SIKH ORGANIZATION OF CANADA, SEVENTH-DAY ADVENTIST CHURCH IN CANADA, JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS, CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS IN CANADA, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION AND CANADIAN MUSLIM LAWYERS ASSOCIATION---Interveners

Decided on 31st May, 2018.

(On appeal from the Court of Appeal for Alberta)

Judicial review---

----Scope---Private parties---Dispute between private parties over membership of a religious organization---Procedural fairness---Scope---Questions as to whether such dispute was justiciable, and whether right to procedural fairness arose without an underlying legal right---Respondent was member of a voluntary religious association ('the appellant')---Any member of appellant-organization had to live according to accepted standards of conduct and morality---Member who deviated and did not repent could be asked to appear before a Judicial Committee of elders and may be disfellowshipped---Respondent was disfellowshipped after he engaged in sinful behaviour and was considered to be insufficiently repentant---Such decision was confirmed by an Appeal Committee---Respondent filed an application for judicial review before the court seeking an order of certiorari quashing the Judicial Committee's decision on the basis that it was procedurally unfair---Both courts below concluded that the courts had jurisdiction to consider the merits of the application filed by the respondent---Held, that (judicial) review of the decisions of voluntary associations, including religious groups, on the basis of procedural fairness was limited for three reasons; first, judicial review was limited to public decision makers, which the Judicial Committee was not---Not all decisions were amenable to a superior court's supervisory jurisdiction---Judicial review was only available where there was an exercise of state authority and where that exercise was of a sufficiently public character---Judicial review was a public law concept that allowed courts to ensure that lower tribunals respected the rule of law---Private parties could not seek judicial review to solve disputes between them and public law remedies such as certiorari may not be granted in litigation relating to contractual or property rights between private parties---Simply because a decision impacted a broad segment of the public did not mean that it was public in the administrative law sense of the term---Present case raised no issues about the rule of law---Appellant-organization in no way was exercising state authority---Second, there was no free-standing right to procedural fairness absent an underlying legal right---Courts may only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights were at stake and the claim was founded on a valid cause of action, for example, contract, tort or restitution---Jurisdiction could not be established on the sole basis that there was an alleged breach of natural justice or that the complainant had exhausted the organization's internal processes---Not enough for the respondent to show that the matter was of importance in some abstract sense---Respondent had no cause of action---No basis had been shown that the respondent and the appellant-organization intended to create legal relations---No contractual right existed between them---Appellant-organization did not have a written constitution, by-laws or rules to be enforced---Negative impact of the disfellowship decision on respondent's client base as a realtor did not give rise to an actionable claim---Matters in issue fell outside the courts' jurisdiction---Third, even where judicial review was available, the courts would consider only those issues that were justiciable---Ecclesiastical issues raised by the respondent were not justiciable---Justiciability related to whether the subject matter of a dispute was appropriate for a court to decide---No single set of rules existed which delineated the scope of justiciability---Court should ask whether it had the institutional capacity and legitimacy to adjudicate the matter---Even the procedural rules of a particular religious group may involve the interpretation of religious doctrine, such as in the present case---Courts had neither legitimacy nor institutional capacity to deal with contentious matters of religious doctrine---Application for judicial review filed by the respondent was liable to be quashed---Appeal was allowed accordingly.

Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50 and Demiris v. Hellenic Community of Vancouver, 2000 BCSC 733, at para. 33 (CanLII); Amselem, at paras. 49-51 ref.

David M. Gnam and Jayden MacEwan, for the appellants.

Michael A. Feder and Robyn Gifford, for the respondent.

Barry W. Bussey and Philip A. S. Milley, for the intervener the Canadian Council of Christian Charities.

John Sikkema and André Schutten, for the intervener the Association for Reformed Political Action Canada.

Mark Gelowitz and Karin Sachar, for the intervener the Canadian Constitution Foundation.

Albertos Polizogopoulos, for the interveners the Evangelical Fellowship of Canada and the Catholic Civil Rights League.

Derek Ross and Deina Warren, for the intervener the Christian Legal Fellowship.

Balpreet Singh Boparai and Avnish Nanda, for the intervener the World Sikh Organization of Canada.

Gerald Chipeur, Q.C., and Jonathan Martin, for the interveners the Seventh-day Adventist Church in Canada and the Church of Jesus Christ of Latter-day Saints in Canada.

Jay Cameron, for the intervener the Justice Centre for Constitutional Freedoms.

Roy Millen and Ariel Solose, for the intervener the British Columbia Civil Liberties Association.

Shahzad Siddiqui and Yavar Hameed, for the intervener the Canadian Muslim Lawyers Association.

2018 S C M R 1634

[Supreme Court of Canada]

Present: McLachlin C.J. Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

JAMES CHADWICK RANKIN, CARRYING ON BUSINESS AS RANKIN'S GARAGE & SALES---Appellant

Versus

J.J. BY HIS LITIGATION GUARDIAN, J.A.J., J.A.J., A.J. AND C.C.---Respondents

and

ONTARIO TRIAL LAWYERS ASSOCIATION AND JUSTICE FOR CHILDREN AND YOUTH---Interveners

Decided on 11th May, 2018.

(On appeal from the Court of Appeal for Ontario)

Per Karakatsanis, J; McLachlin C.J.,Abella, Moldaver, Wagner, Côté and Rowe JJ. concurring; Brown and Gascon JJ. dissenting.

(a) Torts---

----Negligence---Duty of Care---Scope---Foreseeability of personal injury---Minor-driver and victim stole a vehicle from a commercial garage and drove off---Vehicle was being driven by the minor-driver, who crashed the same causing serious injury to the victim-passenger---Victim sued the minor-driver and the garage owner for negligence---At trial, it was held that the garage owner owed a duty of care to the victim---Questions as to whether a commercial garage business owed duty of care to injured passenger; whether risk of personal injury was reasonably foreseeable, and whether the business had positive duty to guard against risk of theft by minors---[Per Karakatsanis, J; Majority view: To establish a duty of care, there must be a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff---Once foreseeability and proximity were made out, a prima facie duty of care was established---Whether or not something was "reasonably foreseeable" was an objective test---Question was properly focused on whether foreseeability was present prior to the incident occurring and not with the aid of hindsight---In the present case, it was not enough to determine simply whether the theft of the vehicle was reasonably foreseeable---Proper question to be asked was whether the type of harm suffered i.e. personal injury was reasonably foreseeable to someone in the position of the garage owner when considering the security of the vehicles stored at the garage---Evidence could establish that the garage owner ought to have known of the risk of theft, however, physical injury was only foreseeable when there was something in the facts to suggest that there was not only a risk of theft, but a risk that the stolen vehicle might be operated in a dangerous manner---To find a duty of care, there must be some circumstance or evidence to suggest that a person in the position of the garage owner ought to have reasonably foreseen the risk of injury that the stolen vehicle could be operated unsafely---Risk of theft in general did not automatically include the risk of theft by minors---Some evidentiary basis was required before a court could conclude that the risk of theft included the risk of theft by minors---In the present case, there was insufficient evidence to suggest that minors would frequent the premises at night, or be involved in joyriding or theft---Aside from evidence that could establish a risk of theft in general, there was nothing else in the present case to connect the risk of theft of the car to the risk of someone being physically injured---Evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury---Burden of establishing a prima facie duty of care owed by the garage owner had not been met, and reasonable foreseeability could not be established on basis of the record--- Further a commercial garage, did not have a positive duty to guard against the risk of theft by minors---Fact that the victim was a minor did not automatically create an obligation to act---[Per Brown, J; Minority view: Reasonable foreseeability inquiry was objective (that is, into what reasonably ought to have been foreseen), and it must be undertaken from the standpoint of a reasonable person---Whether, therefore, the defendant actually foresaw the risk which ultimately manifested in injury to the plaintiff was not determinative---Reasonable foreseeability represented a low threshold and was usually quite easy to overcome---Plaintiff must merely provide evidence to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged---In the present case, both the trial judge and the Court of Appeal held that it was reasonably foreseeable that an individual such as the victim could suffer physical injury as a consequence of the garage owner's negligence in the locking, securing and storing of vehicles---Minors were no less likely to steal a car than any other individual---In order to establish a duty of care, however, the victim was not required to show that the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred were foreseeable---Imposition of a duty of care was conditioned in the present case only upon the victim showing that physical injury to him was reasonably foreseeable under any circumstances flowing from the garage owner's negligence---Trial judge was open to conclude that the garage owner's negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury---Trial judge's finding of reasonably foreseeable physical injury was sufficient to bring the circumstances of the present case within a category of relationships which had already been found to support a duty of care---As a matter of law, proximity was thereby established---Trial judge's finding that the garage owner owed a duty of care to the victim should be upheld and the appeal should be dismissed].

Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 24; A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 322 and L. N. Klar and C.S.G. Jefferies, Tort Law (6th ed. 2017), at p. 212 ref.

(b) Torts---

----Negligence--- Duty of care---Proximity between the parties---Scope---Illegal conduct of plaintiff---Question as to whether illegal conduct of plaintiff/victim could sever any proximity between the parties or negate a prima facie duty of care---Generally speaking illegal or immoral conduct by the plaintiff did not preclude the existence of a duty of care---If the mere fact of illegal behaviour could eliminate a duty, this would effectively immunize negligent defendants from the consequences of their actions, and seriously injured victims would be entirely denied recovery, even when the defendant bore most of the fault---Illegality could however operate as a defence to a tort action in limited circumstances when it was necessary to preserve the integrity of the legal system.

Hall v. Hebert, [1993] 2 S.C.R. 159 and British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27 ref.

David S. Young, Kevin R. Bridel, Cory Giordano and Marie-France Major, for the appellant.

Maia Bent, Cynthia B. Kuehl and Alfonso E. Campos Reales, for the respondents J.J. by his Litigation Guardian, J.A.J., J.A.J. and A.J.

Jennifer Chapman and John Friendly, for the respondent C.C.

Gavin MacKenzie and Brooke MacKenzie, for the intervener the Ontario Trial Lawyers Association.

Bryn E. Gray, Mary Birdsell and Carole Piovesan, for the intervener Justice for Children and Youth.

2018 S C M R 845

[Supreme Court of UK]

Present: Lady Hale, Lord Mance, Lord Reed, Lord Hughes and Lord Hodge

ROBINSON---Appellant

Versus

CHIEF CONSTABLE OF WEST YORKSHIRE POLICE---Respondent

Decided on 8th February, 2018.

(On appeal from [2014] EWCA Civ 15)

Per Lord Reed, JSC; Lady Hale and Lord Hodge, JJSC agreeing; Lord Mance and Lord Hughes, JJSC also agreeing but by different reasoning.

Negligence---

----Duty of care---Police---Police officers causing injury to passer-by while attempting to arrest an accused on a busy street---Question as to whether duty of care was owed to passers-by, and whether police was immune from claims in negligence for injuries caused in course of performing core duties---Two police officers tried to arrest an accused in a busy shopping street when a struggle took place, during which the three men fell on top of the claimant, an old woman aged 76, who was passing by---Claimant suffered injuries as a result and sought damages against the defendant Chief Constable police for personal injuries on the grounds of negligence by the two police officers---Trial judge held that the police officers had acted negligently, since there was a foreseeable risk that passers-by such as the claimant would be injured and they had failed to have regard to the safety of members of the public in the vicinity, but dismissed the claim on the grounds that the police had immunity against claims in negligence---Court of Appeal dismissed the claimant's appeal and held that no duty of care was owed by the police and that, even if the officers had owed the claimant such a duty, on the facts it would not be fair, just and reasonable to impose a duty towards individual members of the public on the police engaged in their core function---Validity---[Per Lord Reed, JSC: There was no general rule that the police were not under any duty of care when discharging their functions of preventing and investigating crime, and they generally owed a duty of care when such a duty arose under ordinary principles of the law of negligence unless statute or the common law provided otherwise---Applying said principles, they might be under a duty of care to protect an individual from a danger of injury which the police themselves had created, but the police were not normally under a duty of care to protect individuals from a danger of injury which the police had not themselves created, including injury caused by the acts of third parties, in the absence of circumstances such as an assumption of responsibility---Discussion of policy considerations was not a routine aspect of deciding cases in the law of negligence, and was unnecessary when existing principles provided a clear basis for the decision, as in the present case---Facts of the present case were concerned with a positive act by the police and not an omission---Reasonably foreseeable risk of injury existed if an arrest of a suspect was attempted in a busy shopping street in a city center at a time when pedestrians, especially physically vulnerable ones such as the claimant, might be knocked into and injured in the course of the suspect attempting to escape; and this was sufficient to impose on the police officers a duty of care towards pedestrians, including the claimant, in the immediate vicinity when the arrest was attempted---Chain of events which had resulted in the claimant being injured had been initiated by the attempt to arrest the accused---Chain of causation had not been interrupted by the accused's voluntary decision to resist arrest, which had resulted in his knocking into the claimant---Such act of the suspect was the very act which the police were under a duty to guard against, and accordingly, the claimant had been injured as a result of being exposed to the very danger from which the police officers had a duty to protect her---Trial judge was entitled to find negligence on the part of the police, which findings should be restored---Chief Constable police/defendant was liable to the claimant for damages to be assessed]---[Per Lord Mance, JSC agreeing with his own reasons: It would be unrealistic to suggest that, when recognizing and developing an established category of negligence the courts were not influenced by policy considerations---In recognizing the existence of any generalized duty in particular circumstances, courts were making policy choices, in which considerations such as proximity and fairness, justice and reasonableness must inhere---It was not possible to state absolutely that policy considerations may not shape police liability where the conduct of the police may be analysed as positive, rather than simply as involving some form of omission---Courts should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicted physical injury---Present case concerned a positive act, not an omission ---Finding of the Trial judge on negligence should be restored]---[Per Lord Hughes, JSC agreeing with his own reasons: Whilst there remains a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided, there was no duty of care towards victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime---No duty of care existed to protect individuals from harm caused by the criminal acts of third parties, however, where action was brought on the basis of physical harm done by the positive acts of the police, it would succeed if, but only if, negligence was proved---Present case was one of positive act, namely arresting the accused, which directly caused physical harm to the claimant---It mattered not that the accused was the first to be in physical contact with the claimant given that the collision with her was by him plus two of the policemen---Finding of negligence by the Trial judge had to be restored and case remitted to the court of trial for assessment of damages].

Caparo Industries Plc v Dickman [1990] 2 AC 605]; Hill v Chief Constable of West Yorkshire [1989] AC 53, HL(E); Stovin v Wise [1996] AC 923, HL(E) and Michael v Chief Constable of South Wales Police (Refuge intervening) [2015] AC 1732, SC(E) ref.

Nicholas Bowen QC, David Lemer and Duncan Fairgrieve for Appellant (instructed by Grieves Solicitors).

Jeremy Johnson QC and Ian Skelt for Respondent (instructed by West Yorkshire Police Legal Services).

2018 S C M R 1018

[Supreme Court of UK]

Present: Lady Hale, President, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones

DRYDEN and others---Appellants

Versus

JOHNSON MATTHEY PLC---Respondent

Decided on 21st March, 2018.

(On appeal from [2016] EWCA Civ 408)

Tort---

----Negligence--- Duty of care--- Employer-employee--- Actionable personal injury--- Scope--- Financial losses of employees on redeployment or termination---Claimants were employed by the defendant (employer) at chemical plants on processes involving platinum salts---In breach of statutory duty the claimants were exposed to higher levels of platinum salts than they should have been---Such platinum sensitisation was not itself physically harmful but lead to allergic reaction involving physical symptoms on further exposure to platinum salts---Claimants' contracts of employment provided for regular checks to screen employees for development of platinum sensitisation, and for sensitised employees to be removed from work areas subject to exposure for possible redeployment and, if redeployment were not possible, for the termination of their employment on special conditions---After such checks, the claimants were found to have developed sensitivity to platinum salts and accordingly were redeployed or dismissed, or resigned---Claimants brought proceedings alleging, inter alia, negligence on the part of the defendant and seeking damages for loss of earnings as a result of losing relatively well paid employment in areas of the plants where it was known that there was an increased risk of exposure to platinum salts---Trial judge found that platinum sensitisation in itself was not a physical injury sufficient to give rise to a cause of action in tort---Court of Appeal upheld decision of Trial judge on the basis that platinum sensitisation did not give rise to detrimental physical effects in the course of ordinary life---Held, that negligence and breach of statutory duty were not actionable in and of themselves---Claimants had to establish that there had been damage in the form of actionable personal injury---Personal injury could be seen as a physical change which made the claimant appreciably worse off in respect of his health or capability, including an injury sustained to person's physical capacity of enjoying life, and as an impairment---Personal injury could also be hidden and symptomless---Absence of symptoms did not prevent a condition amounting to actionable personal injury---In the present case if an individual suffering from platinum sensitization was exposed again to platinum salts, his body was likely to produce allergic symptoms---When an individual became sensitised, such change to his body meant that he lost his capacity to work around platinum salts---Claimants' sensitisation carried the risk of an allergic reaction in the event of further exposure to platinum salts and they had to change their lives to avoid such exposure---Defendant acknowledged that if the claimants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life---Claimants' ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they could no longer do---Such sensitization could not be distinguished from the person who developed a sensitivity to sunlight---Physiological changes to the claimants' bodies were undoubtedly harmful---Bodily capacity of claimants for work had been impaired and they were therefore significantly worse off---Once the sensitisation was identified as an actionable injury in its own right, the defendant's argument that the claimants were claiming only for their lost earnings and therefore for pure economic loss also fell away---Claimants had suffered bodily damage amounting to an actionable personal injury in both negligence and breach of statutory duty---Appeal was allowed accordingly.

Cartledge v E Jopling & Sons Ltd [1963] AC 758, HL(E) and Fair v London & North-Western Railway Co (1869) 21 LT 326, 327 ref.

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281, HL(E) distinguished.

Robert Weir QC and Patrick Kerr (instructed by Leigh Day) for Appellants.

Michael Kent QC and Peter Houghton (instructed by Weightmans LLP (Leicester)) for Respondent.

2018 S C M R 1057

[Supreme Court of UK]

Present: Lady Hale, President, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath

MORRIS-GARNER and another---Appellants

Versus

ONE STEP (SUPPORT) LTD---Respondent

Decided on 18th April, 2018.

(On appeal from [2016] EWCA Civ 180)

Per Lord Reed, JSC; Lady Hale, Lord Wilson and Lord Carnwath, JJSC agreeing; Lord Sumption, JSC also agreeing but with his own reasons.

(a) Tort---

----Invasion of property rights--- 'User damages', award of---Principles---Damages assessed by reference to the value of the use wrongfully made of property, measured by what a reasonable person would have paid for the right of user (sometimes termed "user damages") were readily awarded at common law for the invasion of property rights---Damages were available on a similar basis for the invasion of intellectual property rights.

(b) Damages---

----Common law damages for breach of contract---Principles---Such damages were intended to place the claimant in the same position as he would have been in had the contract been performed---Such damages were therefore normally based on the difference between the effect of performance and non-performance upon the claimant's situation---Where the breach of contractual obligation had caused the claimant to suffer loss, that loss should be measured or estimated as accurately and reliably as possible---Law tolerated imprecision, and there were different legal principles which could assist in estimating the claimant' loss---Contract law damages could not be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, except in exceptional circumstances---Contract law damages were not a matter of discretion; they were claimed as of right and were awarded or refused on the basis of legal principle.

(c) Equity---

----Damages in equity, award of---Principles and quantification---Damages could be awarded in substitution for an injunction or specific performance where the court had jurisdiction to grant such a remedy when the proceedings were commenced---Damages on this basis were a monetary substitute for what was lost by the withholding of the remedy---One method of quantifying damages under such head was by reference to the economic value of the right which the court had declined to enforce---Such a valuation could be arrived at by reference to the amount which the claimant might reasonably have demanded in return for the relaxation of the obligation in question.

(d) Damages---

----'Negotiating damages' (sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to perform)---Scope---Restrictive covenant, breach of---Defendants breaching covenants not to compete with claimant or to solicit its clients---Question as to whether claimant was entitled to damages assessed by reference to amount which would notionally have been agreed in hypothetical negotiation between reasonable parties as price for releasing defendants from covenant obligations, and whether difficulty of establishing financial loss justified award of non-compensatory remedy---Claimant-company provided supported living care for vulnerable children and adults---Defendants, who were a former director and shareholder, and a manager, respectively, of the claimant, agreed to be bound for three years by restrictive covenants prohibiting them from competing with claimant or from soliciting its clients---In breach of the restrictive covenants the defendants set up a business which also engaged in supported living services in the same areas as those where the claimant operated---Claimant brought a claim against the defendants alleging breach of restrictive covenants not to compete with the claimant, solicit its clients or use its confidential information, and produced forensic account reports quantifying the loss which it had allegedly suffered in consequence of the defendants' breaches, the benefits obtained by the defendants and a hypothetical fee for releasing the defendants from the restrictions---Trial judge found that the defendants were in breach of the competition and solicitation covenants and held that, since it would be difficult for the claimant to identify the financial loss which it had suffered by reason of the defendants' wrongful competition, it would be just for the claimant to have the option of recovering damages for 'such amount as would notionally have been agreed between the parties, acting reasonably, as the price for releasing the defendants from their obligations', or alternatively 'ordinary compensatory damages'---Claimant elected for damages on the former basis and a hearing on quantum was fixed---Defendants appealed and the Court of Appeal dismissed the appeal, holding that damages based on a hypothetical release fee were available whenever that was a just response, and it was a matter for the judge to decide, taking into account, if he wished, the difficulties which the claimant would have in establishing damages on the ordinary basis---Held, that 'negotiating damages' could be awarded for breach of contract where the loss suffered by the claimant was appropriately measured by reference to the economic value of the right which had been breached, considered as an asset---Imaginary negotiation involved in calculating such "negotiating damages" was merely a tool for arriving at that value and did not in itself make them fundamentally incompatible with the compensatory purpose of an award of contractual damages---Real question was as to the circumstances in which that value constituted the measure of the claimant's loss---In context of present case, such negotiating damages could be awarded for the breach of contract which had resulted in an identifiable loss equivalent to the economic value of the right which had been breached, considered as an asset, even in the absence of any pecuniary losses which were measurable in the ordinary way, since the claimant had in substance been deprived of a valuable asset, and the defendant had taken something for nothing, for which the claimant was entitled to require payment---Trial judge had been mistaken in considering that the claimant had a right to elect how its damages should be assessed, and in supposing that the difficulty of quantifying its financial loss justified the abandonment of any attempt to quantify it---Further the Court of Appeal had been wrong in treating, inter alia, the difficulty of establishing precisely the claimant's financial loss as justifying an award of a monetary remedy which was not compensatory---Basis on which damages were awarded could not be a matter for the discretion of the primary judge---Although the loss in the present case was difficult to quantify, it was a familiar type of loss for which damages were frequently awarded and it was possible to quantify it in a conventional manner, accordingly, the hearing on quantum ordered by the Trial judge should proceed, not for an assessment of the amount which would notionally have been agreed between the parties as the price for releasing the defendants from their obligations, but for the judge to measure, as accurately as possible, the financial loss which the claimant had actually sustained---Issue of how that assessment was best carried out was for the Trial judge to consider---If evidence were led in relation to a hypothetical release fee, it was for the judge to determine its relevance and weight, if any, although such a fee was not itself the measure of the claimant's loss in a case like the present one---Appeal was allowed accordingly.

Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; Attorney General v Blake [2001] 1 AC 268, HL(E); Experience Hendrix llc v PPX Enterprises Inc [2003] 1 All ER (Comm) 830, CA; Lunn Poly Ltd v Liverpool & Lancashire Properties Ltd [2006] 2 EGLR 29, CA and Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370, PC ref.

Per Lord Sumption; agreeing with Lord Reed.

(e) Damages---

----'Negotiating damages', award of---Scope---Damages based on a notional release fee may be awarded in three categories of cases; first, where the claimant had an interest, such as a property right, which extended beyond financial reparation; second, where the claimant would be entitled to the specific enforcement of his right, and the notional release fee was the price of non-enforcement, and third, where the notional price of a release may be relevant as an evidential technique for estimating the claimant's loss, such as in cases of patent infringement.

Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch 538 and Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 ref.

Charles Bear QC and Ian Bergson (instructed by Neves Solicitors LLP Milton Keynes) for Appellants.

Craig Orr QC and Mehdi Baiou (instructed by Pitmans LLP) for Respondent.

2018 S C M R 1203

[Supreme Court of UK]

Present: Lady Hale, President, Lord Wilson, Lord Reed, Lord Hodge and Lady Black

STEEL and another---Appellants

Versus

NRAM LIMITED (formerly NRAM Plc)---Respondent

Decided on 28th February, 2018.

(On appeal from [2016] CSIH 11)

Negligence---

----Negligent misrepresentation--- Solicitor--- Duty of care---Circumstances in which not reasonable for a party to rely on representations made by the solicitor for the opposite party without checking their accuracy---Commercial lender granted a loan to a borrower in relation to its purchase of a property consisting of a number of commercial units, in return for which the borrower granted the lender security over the property---Subsequently the borrower entered into an agreement for the sale of one of the units---Borrower and the lender agreed that, on the sale, the unit would be released from its security in return for a partial repayment and that the security would remain in place in relation to the remaining units---Before such sale was due to be complete, the borrower's solicitor sent an e-mail to the lender wrongly stating that the whole loan was being repaid and requesting the execution of draft deeds of discharge of the security over all the units---Lender did not check the accuracy of the solicitor's email against the available record and discharged the entire security over the units---When the borrower subsequently went into liquidation, the lender raised an action against the borrower's solicitor and her firm, claiming that it had suffered loss and damage as a result of the negligent misrepresentation---Lender's claim was dismissed by the Trial judge on the basis that it was not reasonable for the lender to have relied on the solicitor's representations without checking their accuracy, and that it was reasonable for the solicitor not to have foreseen that it would do so---On appeal the Appellate Court allowed the lender's claim holding that the solicitor had assumed responsibility for the representations in her e-mail since, inter alia, they fell within her area of expertise and she knew that the lender was not represented by solicitors, and that, therefore, it was not necessary to consider whether the lender should have checked their accuracy---Held, that the concept of an assumption of responsibility by a representor to a representee was the foundation of liability in tort for negligent misrepresentation---Representor would not normally assume responsibility towards the representee unless it was reasonable for the representee to have relied on what the representor said and the representor should reasonably have foreseen that he would do so---Solicitor would not assume responsibility towards the opposite party unless it was reasonable for the latter to have relied on what the solicitor said, and unless the solicitor should reasonably have foreseen that the opposite party would actually rely on the statement---Said two ingredients of reasonable reliance and foreseeability were particularly relevant to a claim against a solicitor by the opposing party, because it was presumed to be inappropriate for a solicitor to assume such a responsibility towards the other side---Trial judge had found that the solicitor generally expected the lender to check her requests before complying with them, and therefore that she had not foreseen that they would rely on her assertions without checking their accuracy---In addition, any prudent bank, such as the lender, taking basic precautions would have checked the accuracy of such statements, and it was therefore not reasonable for the lender in the present case to have relied on the e-mail of the solicitor---Any commercial lender about to implement an agreement with its borrower referable to its security did not act reasonably if it proceeded upon no more than a description of the agreement's terms put forward by or on behalf of the borrower, since the terms of the agreement were wholly within the lender's knowledge---Lender knew the terms of the agreement and indeed, as in the present case, was likely to have evolved and proposed them---Accordingly, the Trial judge had been right to conclude that it had not been reasonable for the lender to rely on the representations of the borrower's solicitor without checking their accuracy and that it had been reasonable for the solicitor not to foresee that it would do so---Appeal was allowed accordingly and judgment of Trial judge was restored.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Smith v Eric Bush; Harris v Wyre Forest District Council [1990] 1 AC 831; Caparo Industries Plc v Dickman [1990] 2 AC 605; Allied Finance and Investments Ltd v Haddow and Co [1983] NZLR 22; Midland Bank Plc v Cameron, Thom, Peterkin and Duncans 1988 SLT 611; Al-Kandari v J R Brown and Co [1988] QB 665; Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560; Connell v Odlum [1993] 2 NZLR 257 and Dean v Allin and Watts [2001] EWCA Civ 758, [2001] 2 Lloyd's Rep 249 ref.

Alastair Duncan QC and Chris Paterson (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for Appellants.

Ronald Clancy QV and Graeme Hawkes (instructed by TLT LLP) for Respondent.

2018 S C M R 1256

[Supreme Court of UK]

Present: Lady Hale, President, Lord Wilson, Lord Sumption, Lord Lloyd-Jones and Lord Briggs

MWB BUSINESS EXCHANGE CENTRES LIMITED---Appellant

Versus

ROCK ADVERTISING LIMITED---Respondent

Decided on 16th May, 2018.

(On appeal from [2016] EWCA Civ 553)

Per Lord Sumption, JSC; Lady Hale (President), Lord Wilson, Lord Lloyd-Jones, JJSC agreeing; Lord Briggs, JSC also agreeing but with his own reasons.

(a) Contract---

----Terms---Variation---'No oral modification' clause---Question as to whether such a clause was legally effective---Defendant company entered into a contract, by way of a licence agreement to occupy premises managed by the claimant company, with a "no oral modification clause" stipulating that "all variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect"---Subsequently the defendant fell into arrears of licence payments and there was a telephone conversation between one of the claimant's employees and the defendant's sole director which the latter understood as having resulted in the parties agreeing to a revised payment schedule so that the early payments were reduced and the difference carried onto the later payments---Employee's manager, however, did not agree to any such variation and, in reliance on the terms of the written licence agreement evicted the defendant and sued for the arrears---Defendant counterclaimed for damages for wrongful exclusion from the premises, in reliance on the oral agreement---Trial judge held that the employee had ostensible authority to agree to a variation of the terms of the licence, that she had in fact done so, but that the variation had not been effective because it was not in writing as required by the subject "no oral modification clause" and so the claimant was entitled to rely on the original written agreement to evict the defendant for arrears---Court of Appeal allowed the defendant's appeal, holding that the principle of freedom of contract entitled parties to agree to depart from a previously agreed no oral modification clause, and that the subject clause, therefore, did not preclude an application of the revised agreement---Held, [Per Lord Sumption] that although at common law there were no formal requirements for the validity of a simple contract, which could be made orally or in writing, there was no principled reason why parties could not agree to bind themselves to a provision laying down specified conditions for any subsequent variation of their contract---"No oral modification" clauses were in common use because they prevented attempts, including abusive attempts, to undermine written agreements by informal means; they avoided disputes not just about whether a variation was intended but also about its exact terms; and, they made it easier for corporations to police their own internal rules restricting the authority to agree variations---Law of contract did not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy---No oral modification' clauses did not frustrate or contravene any policy of the law---No conceptual inconsistency existed between a general rule allowing a contract to be made informally and a specific rule that effect would be given to a contract which required writing for a variation---No oral modification clause was intended to achieve contractual certainty about the terms agreed, as was the case with "entire agreement" clauses which sought to nullify prior collateral agreements relating to the same subject-matter, which the courts would enforce---Enforcement of no oral modification clauses did involve the risk that a party may act on the varied contract but then find itself unable to enforce it---Safeguard against such injustice laid in the various doctrines of estoppel---Reliance on an estoppel would require, at the very least some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and for such purpose, something more than the informal promise itself---Effect should be given to a contractual provision requiring specified formalities to be observed for a variation, including a no oral modification clause---In the present case both parties were bound by the subject 'no oral modification clause', thus, the parties' revised agreement was invalid for want of the writing and signatures prescribed by the 'no oral modification clause'---Appeal was allowed accordingly and judgment of Trial judge was restored.

Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd's Rep 611, para 7 and Actionstrength Ltd v International Glass Engineering InGlEnSpA[2003] 2 AC 541, paras 9 (Lord Bingham), 51 (Lord Walker) ref.

Per Lord Briggs, JSC; agreeing with Lord Sumption, JSC, but with his own reasons.

(b) Contract---

----Terms---Variation---'No oral modification' clause---Question as to whether such a clause was legally effective---To give effect to a non oral modification clause was not to override the parties' intentions---Such clause would remain in force until both or all parties agreed to do away with it, as it was conceptually impossible for the contracting parties to impose upon themselves a particular scheme, but not to be free by further agreement to vary or abandon it by any method permitted by the general law---Contractual certainty achieved by 'entire agreement' clauses was not a useful comparison to draw with non oral modification clauses, as the former did not purport to bind the parties' future conduct, thus, did not involve the same conceptual difficulties as the latter---Analogy could be drawn between non oral modification clauses with negotiations subject to contract, where the parties may abandon the requirement of a formal written agreement only expressly or by necessary implication---Cautious recognition of the effect of a non oral modification clause, namely that it continued to bind until the parties had expressly (or by strictly necessary implication) agreed to do away with it, would give the parties most of the commercial benefits of certainty and the avoidance of abusive litigation about alleged oral variation.

Cohen v Nessdale Ltd [1982] 2 All ER 97, 103-104 ref.

Clifford Darton, Sally Anne Blackmore (instructed by Edward Harte LLP) for Appellant.

Michael Paget and Zoe Whittington (instructed by DH Law Ltd) for Respondent.

2018 S C M R 1342

[Supreme Court of UK]

Present: Lord Mance, Deputy President, Lord Sumption, Lord Carnwath, Lord Hodge and Lord Briggs

The COMPETITION AND MARKETS AUTHORITY---Appellant

Versus

R (ON THE APPLICATION OF GALLAHER GROUP LTD.) and others---Respondents

Decided on 16th May, 2018.

(On appeal from [2016] EWCA Civ 719)

Per Lord Carnwath, JSC; Lord Mance (Deputy President), Lord Sumption, Lord Hodge and Lord Briggs, JJSC agreeing.

(a) Competition law---

----Competition regulator---Fair and equal treatment, principle of---Objectively justified discrimination---Scope---Assurances given by Competition regulator to one party not given to other similarly placed parties---Question as to whether difference in treatment of parties breached regulator's duties of fairness and equal treatment---Competition regulator ('the regulator") conducted an investigation into potential competition law infringements by manufacturers and retailers in the sale of tobacco, and concluded that there had been breaches of the prohibitions set out in the relevant Competition law by the claimant manufacturer, the claimant retailer and by other retailers and manufacturers---Regulator determined that an early resolution process was desirable and produced an internal document setting out a number of principles with explanations of the settlement process, and stating, inter alia, that "fairness, transparency and consistency" were integral to an effective settlement process---Several manufacturers and retailers, including the claimants, entered into early resolution agreements ("ERAs"), by which parties, in return for admitting liability and co-operating with the regulator, would receive substantial reductions in the level of financial penalties anticipated---Any party to an 'ERA' could appeal against the final decision despite the admissions in the 'ERA' but in that case it could be liable to an increased penalty---Claimants and others entered into the 'ERAs' with the regulator---At about the same time the regulator gave an assurance to a third party retailer which had entered into an 'ERA' that, if it did not appeal, it would be given the benefit of any successful appeal by any of the other parties to the 'ERA'---No other party including the claimants was told of such assurance or given one---Regulator thereafter issued its final decision and found infringements by all the parties under investigation, including the claimants and third party retailer---Six of those parties appealed, but the claimants and the third party retailer did not and chose to pay the reduced penalties imposed under the 'ERA'---Competition Appeal Tribunal allowed the appeals of the six appellants---Regulator then entered into a settlement with the third party retailer reimbursing the sum it had paid by way of penalty, with interest and costs---Claimants requested similar treatment from the regulator i.e. to withdraw the decisions against them and refund the penalties paid, but the regulator refused---Claimants sought judicial review of such refusal on the ground that they were entitled to the same benefits of settlement as had been afforded to the third party retailer---Trial judge held that the claimants had been treated unfairly and unequally as compared with the third party retailer, but dismissed the claims on the ground that the assurances given to that retailer had been a mistake, and the unequal treatment had been objectively justified on the basis of a rule that a mistake should not be replicated where public funds were concerned---Court of Appeal allowed the claimants' appeal and held that the claimants were in a comparable position to the third party retailer and their less favourable treatment called for objective justification, and that in all the circumstances the plain breach of the principle of fair and equal treatment had not been objectively justified---Held, [Per Lord Carnwath, that [UK] domestic law did not recognise equal treatment as a distinct principle of administrative law and, although consistency was a generally desirable objective, it was not an absolute rule---Regulator owed a general duty during the negotiations to offer equal treatment to those subject to its investigation, since it was applying a single set of legal and policy criteria to a limited group of parties within a single area of business activity---To such extent it might be said that the claimants had, in public law terms, a legitimate expectation, but it said nothing about the legal consequences of such an expectation---Claimants had grounds to complain of the administrative failure to inform them of the assurances given to the third party retailer, and had they known they might have sought similar assurances, but grounds for administrative complaint did not necessarily add up to a cause of action in law---Even accepting that there had been a breach of a legitimate expectation of equal treatment in the failure to replicate those assurances, that would not in itself provide a basis for financial remedy in relation to subsequent events, nor the reversal of financial penalties which had by then been lawfully imposed on and accepted by the claimants---Crucial difference existed between the positions of the third party retailer and the claimants in that all those entering into the 'ERAs' were aware of the possibility that other parties might appeal successfully, and the claimants had taken that risk whereas the third party retailer had not and had instead sought and obtained the assurances on which it relied---Regulator, therefore, could reasonably take the view that an appeal was bound to succeed and that, if the assurances were not honoured, the third party retailer would have a strong case for permission to appeal out of time whereas the claimants would not---Such set of facts constituted objective justification for the regulator taking a different approach to the claimants, and it was not irrational for the regulator to do so, and, accordingly, there were no grounds for the court to interfere with the decision of the regulator]---[Per Lord Sumption, agreeing: Even if the assurances given had been disclosed to the claimants and they had asked for similar assurances, they had no right to them and the benefit of the assurances given to the third party retailer was not at the claimants' expense---Although the giving of those assurance was a mistake on the part of the regulator, that did not affect the claimants' position since they had, by entering into the 'ERAs', accepted the risk that they would not benefit if the appeal succeeded but would benefit from the discount if the appeal failed---Finality and certainty required that the claimants should live with the consequences---Regulator's mistake was that they gave the assurance to the third party retailer, not that they failed to give it to the claimants---Regulator's act of repaying the penalty to the third party retailer after the appeal, while not repaying the respondents, was not irrational because having failed to appeal in reliance on the assurance, the third party retailer would otherwise have been entitled to obtain leave to appeal out of time---Since third party retailer was in materially the same position as the six successful appellants, its appeal would have succeeded - Unlike the third party retailer, the claimants had no basis for a late appeal to the Competition Appeal Tribunal---In such circumstances while the decision of the regulator was discriminatory, the discrimination was objectively justified]---[Per Lord Briggs, agreeing: Regulator's conduct did not transgress the boundaries of lawfulness and rationality---Circumstances of the present case amounted to a powerful objective justification for the unequal treatment, in that the assurance to the third party retailer was a mistake; that its withdrawal likely would have left the third party retailer even better off than if the assurance were honoured, and that the claimants had neither received nor relied upon any similar assurance---On any view the regulator made a rational choice between unpalatable alternatives, with which the court should not interfere]---Appeal was allowed accordingly and judgment of Trial judge was restored.

Per Lord Carnwath, JSC

(b) Judicial review---

----Grounds---'Procedural unfairness' and 'substantive unfairness'---Distinction---Fairness, like equal treatment, was a fundamental principle of a democratic society but not necessarily one which was directly translatable into a justiciable rule of law---Simple/substantive unfairness was not a ground for judicial review, but it was well established that procedural unfairness or impropriety could render a decision unlawful---Substantive unfairness, namely whether that had been unfairness in all the circumstances, was not a distinct legal criterion, nor was it made so by the addition of terms such as "conspicuous" or "abuse of power", which added nothing to the ordinary principles of judicial review.

R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, HL(E); R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, HL(E) and R v Inland Revenue Comrs, Ex p Unilever plc [1996] STC 681, CA ref.

Per Lord Briggs, JSC

(c) Judicial review---

----Public authority---Discrimination---Where a public authority had the option to avoid replicating an earlier mistake but at some cost to equal treatment, the choice was one for the authority rather than the court, subject to the usual constrains of lawfulness and rationality---If, and only if, the authority acted outside such constraints would its choice be subject to judicial review.

Daniel Beard QC, Andrew Henshaw QC, Brendan McGurk (instructed by CMA Legal) for Appellant.

Lord Pannick QC and Hanif Mussa (instructed by Slaughter and May) for Respondent No.1 (Gallaher).

Jessica Boyd (instructed by Burges Salmon LLP) for Respondent No. 2 (Co-operative Group Ltd).

2018 S C M R 1721

[Supreme Court of UK]

Present: Lord Mance, Lord Kerr, Lord Sumption, Lord Reed and Lord Hodge

BRITISH TELECOMMUNICATIONS PLC and another---Appellants

Versus

CARTIER INTERNATIONAL AG and others---Respondents

Decided on 13th June, 2018.

(On appeal from [2016] EWCA Civ 658)

Trade mark---

----Infringement---Injunction to prevent trademark infringement on the internet---'Website blocking order'---Cost of complying with enforcement of 'website blocking order'---Question as to whether an Internet Service Provider, as an innocent intermediary, could be ordered to pay the costs of implementing the injunction/'website blocking order'---Claimants, who were proprietors of a number of domestic and international trade marks registered in relation to certain luxury goods, contended that their trade marks were being infringed by the activities of certain websites which sold counterfeit goods---Online users buying from such websites were using internet services provided by the defendants/Internet Service Providers ("ISPs")---Defendants/ ISPs only provided the network by which its users could access content, but they neither provided nor stored content, thus the defendants/ISPs did not themselves infringe the relevant trademarks---Claimants sought injunctions requiring the defendants/ISPs to adopt technical measures to block, or to attempt to block, their subscribers from accessing the offending websites selling counterfeit goods---Trial judge granted the injunctions sought and also ordered the defendants/ISPs, as the unsuccessful parties albeit innocent of any wrongdoing, to bear the costs of implementing the 'website blocking order'/injunction---Court of Appeal upheld the decision to require the defendants/ISPs to bear the costs of implementing the injunctions---Held, that the Courts' jurisdiction to order parties to assist those whose rights had been invaded by a wrongdoer was not limited to orders for disclosure but was capable of extending to a website blocking order at the request of a trade mark owner---General rule, absent exceptional circumstances, was that the innocent facilitator who was the subject of the order would be entitled to the costs of compliance---Unless there were good reasons for a different order, an innocent intermediary would be entitled to be indemnified by the right holder against the costs of complying with a website blocking order in the same way as was the established position in relation to other orders granted to require an innocent party to assist the claimant in the assertion of its rights against a wrongdoer---No basis existed for requiring an Internet Service Provider serving as a mere conduit to shoulder the burden of remedying an injustice if it had no legal responsibility for the infringement and was not a volunteer but was acting under the compulsion of an order of the court---In principle the rights-holders should indemnify the ISPs for the compliance costs, subject to the limits on relief (set by European Union law)---No reason existed to believe that such an indemnity, which must be limited to reasonable costs, would exceed the limits on relief---Costs were not excessive, disproportionate or such as to impair the claimants' ability to enforce their rights---Critically, the intermediary/ISPs in the present case were legally innocent---Different considerations may apply to those engaging in caching or hosting, which involved greater participation in the infringement and which were more likely to infringe intellectual property laws---Argument that Internet Service Providers benefitted financially from the volume and appeal of the content available on the internet, including content which infringed intellectual property rights, thus, it was fair to make them contribute to the cost of enforcement, was misconceived---Such argument assumed a degree of responsibility on the part of the intermediary/ISP which did not correspond to any legal standard and it (incorrectly) implied that there was a moral or commercial responsibility in the absence of a legal one---Law was not generally concerned with moral or commercial responsibilities except as an arguable basis for legal ones---Even if a moral or commercial responsibility were relevant, it would be hard to discern one in a case like the present one---Website-blocking injunctions were sought by rights-holders in their own commercial interest, and there was no reason why the rights-holder should be entitled to look for a contribution to the cost of defending his rights from anyone other than the infringers---Supreme Court directed that the claimants/right holders shall indemnify the defendants/Internet Service Providers in respect of reasonable costs of processing and implementing the injunction/website blocking order---Appeal was allowed in circumstances.

Aldous LJ in Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233, paras 29-30 approved.

Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133, HL(E) ref.

L'Oréal SA v eBay International AG (Case C-324/09) [2012] Bus LR 1369, ECJ and UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH (Case C-314/12) [2014] Bus LR 541, ECJ distinguished.

Charlotte May QC, Jaani Riordan for Appellants (instructed by Reed Smith LLP).

Adrian Speck QC and Benet Brandreth QC for Respondents (instructed by Wiggin LLP).

Telefonica UK Ltd., Vodafone Ltd. and Hutchison 3G UK Ltd. Interveners (in-house submissions).

Greg Callus (instructed by Preiskel and Co LLP) Intervener (The Open Rights Group) (written submissions only).

Richard Spearman QC Intervener (The Motion Picture Association) (written submissions only).

Edmund Cullen QC and Kiaron Whitehead Intervener (BPI (British Recorded Music Industry) Ltd) (written submissions only).

2018 S C M R 1695

[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, Clarence Thomas and Neil Gorsuch, JJ

MICHAEL NELSON CURRIER---Petitioner

Versus

VIRGINIA---Respondent

Decided on 22nd June, 2018.

(On writ of Certiorari to the Supreme Court of Virginia)

Per Gorsuch, J; Roberts, C.J, Kennedy, Thomas and Alito, JJ concurring.

(a) Criminal trial---

----Double jeopardy, principle of---Scope---Multiple charges related to the same incident---Severance of multiple charges by consent of accused---Separate trials---Question as to whether defendant could be tried for the second charge/trial after being acquitted of the first---Defendant was indicted and charged with burglary, grand larceny, and possession of a firearm as a convicted felon---Before trial, the defense and prosecution agreed to sever the firearm charge from the grand larceny and burglary charges---Case proceeded to trial on the burglary and grand larceny charges, and the defendant was acquitted of both charges---When the prosecution sought to try the defendant on the remaining charge of felon in possession of a firearm, he objected that collateral estoppel (issue preclusion) protections embodied in the Double Jeopardy principle precluded his retrial---Notwithstanding objections of the defendant, he was tried, convicted, and sentenced for the charge of felon in possession of a firearm---Legality---Since the defendant consented to a severance of the multiple charges against him, his second trial and resulting conviction, following an acquittal at his first trial, did not violate the Double Jeopardy principle, which provided that no person may be tried more than once for the same offence---For a second trial to be precluded, the Court must have been able to conclude that "it would have been irrational" in the initial trial to acquit the accused without finding for the defendant on a fact essential to a conviction in the second trial---Even if the defendant's second trial could be classified as a retrial of the same offence, he consented to it---If a single trial on multiple charges would be sufficient to avoid a double jeopardy violation, there could not be a violation where the defendant sought two separate trials and persuaded the Trial Court to grant the request---If consent could nullify a double jeopardy complaint in a situation involving a second trial for a greater offence, it could certainly overcome a double jeopardy complaint---Defendant argued that he had no choice but to seek two trials, because evidence of his prior convictions would have tainted the jury's consideration of the burglary and larceny charges---Present case was not one wherein the defendant had to give up one constitutional right to secure another---Instead, the defendant faced a lawful choice between two courses of action that each bore potential costs and ra¬tionally attractive benefits---Difficult strategic choices were not the same as no choice, and the Constitution did not forbid requiring a litigant to make them---Defendant's plea of double jeopardy had been rightly rejected by the courts below---[Per Kennedy, J; concurring: When a defendant's voluntary choice lead to a second prosecution he could not later use the Double Jeopardy principle, whether thought of as protecting against multiple trials or the relitigation of issues, to forestall the second prosecution---Extent of the Double Jeopardy principle protections could be lost when a defendant agreed to a second prosecution, however such conclusion was premised on the defendant having a voluntary choice, and a different result might occur if such premise was absent].

Jeffers v. United States, 432 U.S. 137 (1977) applied.

Ashe v. Swenson, 397 U.S. 436 distinguished.

McGautha v. California, 402 U.S. 183, 213; United States v. Martinez-Salazar, 528 U.S. 304, 315 and Parklane Hosiery Co. v. Shore, 439 U.S. 326 (1979) ref.

Per Gorsuch, J; Roberts, C.J, Thomas and Alito, JJ concurring; Ginsberg, Breyer, Sotomayor and Kagan, JJ taking a different view.

(b) Criminal trial---

----Civil issue preclusion (res judicata) and 'double jeopardy', principles of---Distinction---Import of civil issue preclusion principle into criminal law through the Double Jeopardy principle---Legality---Defendant was indicted and charged with burglary, grand larceny, and possession of a firearm as a convicted felon---Before trial, the defence and prosecution agreed to sever the firearm charge from the grand larceny and burglary charges---Case proceeded to trial on the burglary and grand larceny charges, and the defendant was acquitted of both charges---When the prosecution sought to try the defendant on the remaining charge of felon in possession of a firearm, he contended that even if he voluntarily consented to holding the second trial, that consent did not extend to the relitigation of any issues the first trial resolved in his favour; that issue preclusion principles in civil cases should be imported into criminal law through the Double Jeopardy principle; that double jeopardy principle should do much more than bar the retrial of the same offence; it should be read to prevent the parties from retrying any issue or introducing any evidence about a previously tried issue---Validity---[Per Gorsuch, J; Civil issue preclusion principle could not be applied to criminal law through the Double Jeopardy principle to stop parties from retrying any issue or bringing in evidence regarding a previously tried issue---Civil preclusion principle and double jeopardy were different doctrines, with different histories, serv¬ing different purposes---Historically, both claim and issue preclusion have sought to promote judicial economy by preventing needless litigation---Such interest may make special sense in civil cases where often only money was at stake, but the Double Jeopardy principle and the common law principles it built upon governed criminal cases and concerned more than efficiency; they aimed instead, to balance vital interests against abusive prosecutorial practices with consideration to the public's safety---[Per Ginsburg, J: Defendant's consent to severance of trials did not waive his right to rely in his second trial on the issue-preclusive effect of an acquittal in the first trial---In the present case the defendant's acquiescence in severance of the felon-in-possession charge did not prevent him from raising a plea of issue preclusion based on his acquittals of breaking and entering and grand larceny---First trial established that the defendant did not participate in breaking and entering the victim's residence or in stealing their safe---Prosecution could attempt to prove that the defendant possessed firearms through a means other than breaking and entering the victims' residence and stealing their safe, but the prosecution should not be permitted to show in the second trial (felon-in-possession trial) what it failed to show in the first trial, i.e., defendant's participation in the charged breaking and entering and grand larceny, after a full and fair opportunity to do so.

Dowling v. United States, 493 U. S. 342 (1990) ref.

2018 S C M R 1749

[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, Clarence Thomas and Neil Gorsuch, JJ

ROBERT LEROY McCOY---Petitioner

Versus

LOUISIANA---Respondent

Decided on 14th May, 2018.

(On writ of Certiorari to the Supreme Court of Louisiana)

Per Ginsburg, J; Roberts, C.J., Kennedy, Breyer, Sotomayor and Kagan, JJ concurring; Alito, Thomas and Gorsuch, JJ dissenting.

Criminal trial---

----Right to assistance of counsel---Counsel representing the accused, authority of---Scope---Plea of guilt---Question as to whether defense counsel for an accused had the authority to concede guilt despite accused wanting to plead not guilty---Accused, who was charged with murdering three victims, pleaded not guilty to murder, insisting that he was out of the State at the time of the killings and that corrupt police officials killed the victims---Accused vociferously insisted on his innocence and adamantly objected to any admission of guilt, but the Trial Court permitted his counsel, to tell the jury during the trial's guilt phase that the accused "committed the three murders"---Counsel's strategy was to concede that accused committed the murders, but argue that his mental state prevented him from forming the specific intent necessary for a murder conviction---Over repeated objection by the accused, counsel told the jury that accused was the killer and that he (counsel) took the burden off of the prosecutor on that issue---Accused testified in his own defense, maintaining his innocence and pressing a plea of alibi difficult to fathom---Trial Court found the accused guilty of all three murders---At the sentencing phase, the counsel again conceded guilt of accused, but urged mercy in view of accused's mental and emotional issues---Court sentenced the accused to death on three counts---Appellate Court below affirmed the convictions and the sentence, reasoning that defense counsel's failure to follow accused's direction not to concede guilt did not deny the accused the assistance of counsel or create a conflict of interest because it did not completely abdicate the defense, rather, the decision to concede guilt was a strategic choice by counsel---[Per Ginsburg, J; (Majority view): Inherent in the right to assistance of counsel was the right of a defendant to choose the objective of his defense and insist that counsel not admit guilt, even if the counsel's experience-based view was that admitting guilt offered the best chance of avoiding the death penalty---Lawyer's domain was trial management, but some decisions were reserved for the client - including whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal---Autonomy to decide that the objective of the defense was to assert innocence belonged in such reserved-for-the-client category---Refusing to plead guilty in the face of overwhelming evidence against the accused, rejecting the assistance of counsel, and insisting on maintaining innocence at the guilt phase of a capital trial were not strategic choices; they were decisions about what the defendant's objectives in fact were---Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as the counsel did in the present case---Accused-client may, however, not share that objective and may wish to avoid, above all else, the opprobrium attending admission that he killed the victims, or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration---When a client made it plain that the objective of "his defence" was to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by conceding guilt---Relevant ethical rules for lawyers might have stopped the counsel from presenting accused's alibi evidence if the counsel knew perjury was involved, but Court below had identified no ethical rule requiring counsel to admit accused's guilt over his objection---Furthermore jurisprudence relating to ineffective-assistance-of-counsel did not apply in the present case, where the client's autonomy, not counsel's competence, was in issue---To gain redress for an attorney's error, a defendant ordinarily must show prejudice, but in the present case the violation of accused's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within accused's sole prerogative---Violation of a defendant's secured autonomy under the right to assistance by counsel was a "structural" error, and when present, such an error was not subject to harmless-error review---Error was structural if it was not designed to protect defendants from erroneous conviction, but instead protected some other interest, such as the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty---Counsel's admission of a client's guilt over the client's express objection was an error structural in kind, for it blocked the defendant's right to make a fundamental choice about his own defense---Accused in the present case must therefore be accorded a new trial without any need first to show prejudice caused to him---[Per Alito, J; (Minority view): Counsel for accused found himself in a situation where the evidence against his accused-client was overwhelming---Accused claimed that the victims were killed by the local police and that he had been framed by a farflung conspiracy of state and federal officials, and his counsel and the trial judge had joined the plot---Unwilling to go along with this incredible and uncorroborated defense, counsel told the accused some eight months before trial that the only viable strategy was to admit the killings and to concentrate on attempting to avoid a sentence of death---At that point - aware of his counsel's strong views - accused could have discharged his counsel and sought new counsel willing to pursue his conspiracy defense---Only few days before trial the accused changed his mind and asked the Trial Court to replace his counsel, who subsequently asked for permission to withdraw---Accused was unable to provide the name of any new counsel, and no new attorney ever appeared on his behalf---Trial Court refused such request of accused, so the accused and his counsel were stuck with each other, and the accused availed himself of his right to take the stand to tell his conspiracy based defence---Importantly counsel did not admit that accused was guilty of intentional murder---Instead, faced with overwhelming evidence that accused shot and killed the three victims, counsel admitted that accused committed one element of that offense, i.e., that he killed the victims, but strenuously argued that accused was not guilty of intentional murder because he lacked the intent (the mens rea) required for the offence---Constitutional right that the majority opinion now discovered - a criminal defendant's right to insist that his attorney contest his guilt with respect to all charged offenses - was unlikely to figure in another case for many years to come due to the very unusual facts of the present case].

Florida v. Nixon, 543 U. S. 175; Strickland v. Washington, 466 U. S. 668; Gonzalez v. United States, 553 U. S. 242, 248 (2008); Jones v. Barnes, 463 U. S. 745, 751 (1983); McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8; United States v. Gonzalez-Lopez, 548 U. S. 140 and Waller v. Georgia, 467 U. S. 39 ref.

2018 S C M R 1770

[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, Clarence Thomas and Neil Gorsuch, JJ

MINNESOTA VOTERS ALLIANCE, ET AL---Petitioner

Versus

JOE MANSKY, ET AL---Respondent

Decided on 14th June, 2018.

(On writ of certiorari to the United States Court of Appeals for the Eighth Circuit)

Per Roberts, C.J; Kennedy, Thomas, Ginsburg, Alito, Kagan and Gorsuch, JJ concurring; Sotomayor and Breyer, JJ dissenting.

Fundamental Rights---

----Freedom of speech---Elections---Ban on "political apparel" inside a polling place---Constitutionality---Election laws in the State (of Minnesota) prohibited individuals, including voters, from wearing a "political badge, political button, or other political insignia" inside a polling place on election day [Minn. Stat. §211B.11(1) (Supp. 2017)]---Said "political apparel ban" covered articles of clothing and accessories with political insignia upon them---State election judges had the au¬thority to decide whether a particular item fell within the ban---Vio¬lators were subject to a civil penalty or prosecution---State distributed an 'Election Day Policy' to election officials providing guidance on enforcement of the ban---Election Day Pol¬icy specified examples of prohibited apparel to include items display¬ing the name of a political party, items displaying the name of a can-didate, items supporting or opposing a ballot question, "issue oriented material designed to influence or impact voting," and "material promoting a group with recognizable political views"---Petitioners challenged the ban on the grounds, that it violated the freedom of speech and argued that it was unconstitutional on its face---Validity---[Per Roberts, C.J; (Majority view): Since political apparel ban applied only in a specific loca¬tion - the interior of a polling place - it implicated the Court's 'forum based' approach for assessing restrictions that the government sought to place on the use of its property---Polling place in State (of Minnesota) qualified as a non-public forum as such it may be subject to content-based restrictions on speech, so long as the restrictions were reasonable and not an effort to suppress expression merely because public offi¬cials opposed the speaker's view---Since the text of the impugned election law made no distinction based on the speaker's political persuasion, the ques¬tion was whether the apparel ban was reasonable in light of the purpose served by the forum i.e. voting---Some forms of campaign advocacy should be excluded from the polling place in order to set it aside as an island of calm in which voters could peacefully contemplate their choices---Casting a vote was a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinc¬tion between voting and campaigning, but the line the State drew must be reasonable---State therefore must be able to articulate some sensible basis for distin¬guishing what may come in from what must stay out---Unmoored use of the term "political" in the impugned statute providing the ban, combined with hap-hazard interpretations the State had provided in official guidance and representations to the Court, caused the State's restrictions to fail such test---Impugned statute did not define the term "political," a word that could broadly encompass anything "of or relating to government, a govern¬ment, or the conduct of governmental affairs"---Far from clarifying the indeterminate scope of the provision, the State's "electoral choices" construction introduced confusing line-drawing problems---First three categories of prohibited items in the 'Election Day Policy' were clear, but the next category - "issue oriented material designed to influence or impact voting"- raised more questions than it answered---State took the position that any subject on which a political candidate or party had taken a stance qualified as an "issue" within the meaning of such category---Such a rule - whose fair enforcement required an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot - was not reasonable---Next broad category in the 'Election Day Policy' - any item "promoting a group with recognizable political views"- made matters worse---State did not confine said category to groups that had endorsed a candidate or taken a position on a ballot question---Resultantly, any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an "issue confronting voters"---State represented that the ban was limited to apparel promoting groups with "well-known" political positions, but such requirement only increased the potential for erratic application, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it---Indeterminate prohibition carried with it the opportunity for abuse, especially where it had received a virtually open-ended interpretation---Discretion that election judges exercised in enforcing the ban must be guided by objective, workable standards---Without such standards an election judge's own politics may shape his views on what counted as "political"---If voters experienced or witnessed episodes of unfair or inconsistent enforcement of the ban, the State's interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it---In such circumstances, if a State wished to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by the ban provided by the impugned election law/statute---Impugned statute's political apparel ban violated the freedom of speech]---[Per Sotomayor, J, dissenting (Minority view): Impugned statute providing the political apparel ban should not be declared unconstitutional on its face without first affording the State's own highest court a reasonable opportunity to pass upon and construe and interpret the impugned statute---When confronting a challenge to the constitutionality of a State's statute, federal courts should be particularly hesitant to speculate as to possible constructions of the State law when the State courts stood willing to address questions about the impugned law---Fair possibility existed that the State court could ascertain a construction that would contain the impugned statute within constitutional bounds---Majority opinion of the present judgment recognized a substantial amount of speech that clearly qualified as "political," such as "items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating support of or opposition to a ballot question"---Fact that the majority opinion had some difficulty deciphering guidance with respect to "issue oriented material designed to influence or impact voting" and "material promoting a group with recognizable political views" did not mean that the statute as a whole was not subject to a construction that fell within Constitutional bounds---Furthermore the political apparel ban was enacted in the late 19th century, and present case was the first time the impugned statute had been challenged on the basis that certain speech was not "political---History of the impugned statute offered some assurance that the statute had not been interpreted or applied in an unreasonable or abusive manner---No evidence existed to show that any individual who refused to remove a political item had been prohibited from voting---No one had been referred for prosecution for violating the impugned ban---Present case should be certified/sent to the State's highest court for a definitive interpretation of the political apparel ban [under Minn. Stat. §211B.11(1) (Supp. 2017)].

International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806-811; Perry Ed. Assn. v. Perry Local Edu¬cators' Assn., 460 U. S. 37, 46 and Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. at 576 ref.

2018 S C M R 1908

[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, Clarence Thomas and Neil Gorsuch, JJ

OHIO, ET AL---Petitioner

Versus

AMERICAN EXPRESS COMPANY, ET AL---Respondent

Decided on 25th June, 2018.

(On writ of Certiorari to the United States Court of Appeals for the Second Circuit)

Per Thomas, J; Roberts, C.J, Kennedy, Alito and Gorsuch, JJ; agreeing; Breyer, Ginsberg, Sotomayor and Kagan, JJ dissenting

(a) Competition law---

----Unreasonable restraint on trade---'Rule of reason'---Principles---Credit card company---'Antisteering provisions' in contracts with merchants---Credit card companies operated a "two-sided platform", providing services to two different groups (cardholders and merchants) who depended on the platform to intermediate between them---Cardholders benefited from holding a card only if that card was accepted by a wide range of merchants, and merchants benefited from accepting a card only if a sufficient number of cardholders used it---Cardholder and the merchant both, ,thus, depended on widespread acceptance of a card---Respondent-credit card company, which had a significant share of the total credit-card transaction volume in the country (United States), competed with its rivals by using a different business model, which focused on cardholder spending rather than cardholder lending---To encourage cardholder spending, respondent-company provided better rewards than the other credit-card companies, which was only possible by charging merchants higher fees than its rivals---Such higher fees caused friction between respondent-company and merchants---To avoid higher fees, merchants often attempted to dissuade cardholders from using cards of respondent-company at the point of sale - a practice known as "steering"---Respondent-company placed antisteering provisions in its contracts with merchants to combat this---Plaintiffs sued respondent-company, claiming that its antisteering provisions violated the prohibition on unreasonable restraints of trade [section 1 of the Sherman Antitrust Act, 1890]---District Court agreed, finding that the credit-card market should be treated as two separate markets-one for merchants and one for cardholders-and that respondent-company's antisteering provisions were anticompetitive because they resulted in higher merchant fees---Appellate Court reversed findings of District Court determining that the credit-card market was one market, not two, and that respondent-company's antisteering provisions did not violate the prohibition on unreasonable restraints of trade---[Per Thomas, J (Majority view): Restraints on trade [as under section 1 of the Sherman Antitrust Act, 1890] may be unreasonable in one of two ways-unreasonable per se or un-reasonable as judged under the "rule of reason"---Respondent-company's antisteering provisions should be judged under the 'rule of reason' using a three-step burden-shifting framework---Such framework required the Court to decide as a first step whether the plaintiffs had proved that respondent-company's antisteering provisions had a substantial anticompetitive effect that harmed consumers in the relevant market---Applying the rule of reason generally required an accurate definition of the relevant market---In the present case, both sides of the two-sided credit-card market-cardholders and merchants-must be considered---Only a company with both cardholders and merchants willing to use its network could sell transactions and compete in the credit-card market---Credit-card networks could not make a sale unless both sides of the platform simultaneously agreed to use their services, therefore, credit-card networks were best understood as supplying only one product-the transaction-that was jointly consumed by a cardholder and a merchant---Accordingly, the two-sided market for credit-card transactions should be analyzed as a whole---Plaintiffs had not carried their burden to show anticompetitive effects due to the antisteering provisions---Argument that respondent-company's antisteering provisions increased merchant fees wrongly focused on just one side of the market---Evidence of a price increase on one side of a two-sided transaction platform could not, by itself, demonstrate an anticompetitive exercise of market power---Instead, plaintiffs must prove that respondent-company's antisteering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the two-sided credit-card market---Plaintiffs failed to prove the same---Plaintiffs offered no evidence that the price of credit-card transactions was higher than the price one would expect to find in a competitive market---Respondent-company's increased merchant fees reflected an increase in the value of its services and the cost of its transactions, not an ability to charge above a competitive price---Respondent-company used higher merchant fees to offer its cardholders a more robust rewards program, which was necessary to maintain cardholder loyalty and encourage the level of spending that made it valuable to merchants---In addition, the evidence that did exist did not support the plaintiffs' view that respondent-company's antisteering provisions were the cause of any increases in merchant fees, since merchant fees of rival credit card companies had continued to increase, even at merchant locations where cards of respondent-company were not accepted---Plaintiffs also failed to prove that respondent-company's antisteering provisions had stifled competition among credit-card companies---To the contrary, while such provisions had been in place, the market experienced expanding output and improved quality---Nor had such antisteering provisions ended competition between credit-card networks with respect to merchant fees---Competitors of respondent-company had exploited its higher merchant fees to their advantage---Antisteering provisions actually stemmed negative externalities in the credit-card market and promoted interbrand competition, and they did not prevent competing credit-card networks from offering lower merchant fees or promoting their broader merchant acceptance---Anti-steering provision of the respondent-company did not violate anti-competition laws---Judgment of Appellate Court was affirmed accordingly]---[Per Breyer, J (Minority view): District Court rightly found that the challenged antisteering provisions added by the respondent-company in its contracts with merchants had significant anticompetitive effects---Said provisions had limited or prevented price competition among credit-card firms for the business of merchants as they required the merchants to agree not to encourage customers to use competitors' credit cards, even cards from those competitors, that intended to charge the merchants lower prices---By doing so, the respondent-company had disrupted the normal price-setting mechanism in the market---As a result of the antisteering provisions, the District Court correctly found, that respondent-company was able to raise merchant prices repeatedly without any significant loss of business, because merchants were unable to respond to such price increases by encouraging shoppers to pay with other cards---Antisteering provisions thereby suppressed competitors' incentives to offer lower prices resulting in higher profit-maximizing prices across the network services market---Consumers throughout the economy paid higher retail prices as a result, and they were denied the opportunity to accept incentives that merchants might otherwise have offered to use less-expensive cards---Furthermore plaintiffs provided evidence that the merchant price increases that resulted from the antisteering provisions were not wholly offset by additional rewards expenditures or otherwise passed through to cardholders, and resulted in a higher net price---If respondent-company's merchant fees were so high that merchants successfully induced their customers to use other cards, respondent-company could remedy such problem by lowering those fees or by spending more on cardholder rewards so that cardholders declined such requests, but what respondent-company should not have done was to demand contractual protection from price competition---Respondent-company presented no expert testimony, financial analysis, or other direct evidence establishing that without its antisteering provisions it would, in fact, be unable to adapt its business to a more competitive market].

State Oil Co. v. Khan, 522 U.S. 3, 10 and Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 723 ref.

(b) Competition law---

----Anti-competitive pricing---Proof---Court would not infer competitive injury from price and output data unless there was some evidence that tended to prove that output was restricted or prices were above a competitive level.

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 237 ref.