SCMR 2019 Judgments

2019 S C M R 1553

[High Court of Australia]\

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

COMCARE---Appellant

Versus

MICHAELA BANERJI---Respondent

[2019] HCA 23

Decided on 7th August, 2019.

(a) Civil service---

----Apolitical public service---Freedom of political communication---Scope---Civil servant violating his/her code of conduct by posting/broadcasting material on social media critical of his/her department, the Government and members of Parliament---Effect---Termination of employment---[Australian] Public Service Code of Conduct ("the Code") included a requirement under S. 13(11) of the Public Service Act, 1999 ('the 1999 Act') that public service employees at all times behave in a way that upheld the values, integrity and good reputation of public service; that public service was apolitical, performing its functions in an impartial and professional manner [section 10(1) of the 1999 Act]; and that an Agency Head of a government department could impose sanctions on a public service employee found to have breached the Code, including termination of employment [section 15(1) of the 1999 Act]---Question as to whether Ss. 10(1), 13(11) & 15(1) of the 1999 Act imposed effective burden on implied freedom of political communication, and whether said provisions served a legitimate purpose---Held, that impugned provisions of the 1999 Act had a purpose consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical public service---Impugned provisions were reasonably appropriate and adapted to or were proportionate to their purpose and accordingly did not impose an unjustified burden on the implied freedom of political communication---Implied freedom of political communication was not a personal right of free speech; it was a restriction on legislative power---Such freedom extended only as far as necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.

Australian Public Service ("APS") Code of Conduct ("Code") included a requirement under section 13(11) of Public Service Act, 1999 ('the 1999 Act') that employees behave in a way that upheld APS Values and integrity and good reputation of APS. Section 10(1) of 1999 Act provided that APS was apolitical, and performed functions in impartial and professional manner. Agency Head was empowered by section 15(1) of the 1999 Act to impose sanctions on employee found to have breached the Code, including termination of employment. Departmental and APS guidelines cautioned against unofficial public comment and recorded a "rule of thumb" that anyone posting material online should assume that their identity and employment would be revealed. Respondent who was an employee of a Government Department published tweets anonymously, using the social media platform 'Twitter', which were critical of her Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament. Following an investigation, a delegate of the relevant Agency Head determined that the respondent had breached the Code and proposed a sanction of termination of employment. After providing the respondent with opportunities to respond to the proposed sanction, the delegate decided to impose that sanction under section 15(1) of the 1999 Act, and a notice of termination was provided to the respondent. Respondent claimed compensation under Safety, Rehabilitation and Compensation Act 1988 for injury resulting from the termination of her employment.

Questions as to whether sections 10(1), 13(11) and 15(1) of the 1999 Act ('the impugned provisions) imposed effective burden on implied freedom of political communication; whether burden on such implied freedom was justified; whether impugned provisions of the 1999 Act served a legitimate purpose, and whether they were suitable, necessary and adequate in balance.

Held, Per Kiefel CJ, Bell, Keane and Nettle, JJ:

Implied freedom of political communication was not a personal right of free speech. It was a restriction on legislative power which arose as a necessary implication from sections 7, 24, 64 and 128 and related sections of the Constitution of Australia and, as such, extended only so far as was necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication was relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposed an unjustified burden on the implied freedom of political communication was a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricted the ability of an individual or a group of persons to engage in political communication, the law would not infringe the implied freedom of political communication unless it had a material unjustified effect on political communication as a whole.

Brown v Tasmania (2017) 261 CLR 328; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; Wotton v Queensland (2012) 246 CLR 1 and Unions NSW v New South Wales (2013) 252 CLR 530 ref.

Impugned provisions of the 1999 Act also applied to 'anonymous' communications. Under the APS guidelines as a rule of thumb, anyone who posted material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment would be revealed. The risk of identification which justified such rule of thumb was obvious, and it was borne out by the facts of the present case. Further, as was also explained in the guidelines to APS employees, where an APS employee broadcasted tweets which were harsh or extreme in their criticism of the Government or Opposition or their respective policies, or of individual members of Parliament whatever their political persuasion, and the nature of the author's employment was later discovered, as it was in the present case, the fact that an employee of the APS was then seen to have engaged in conduct of that kind was bound to raise questions about the employee's capacity to work professionally, efficiently and impartially; was likely to seriously disrupt the workplace; and, for such reasons, was calculated to damage the integrity and good reputation of the APS. Where the employee broadcasted tweets commenting on policies and programmes of the employee's Department or which were critical of the Department's administration, damage to the good reputation of the APS was apt to occur even if the author's identity and employment were never discovered. In light of such considerations, it would be facile to suppose a parliamentary intention to exclude anonymous communications from the ambit of the impugned provisions of the 1999 Act.

Section 13(11) of the 1999 Act did not purport to proscribe all forms of "anonymous" communications: only those which failed to "uphold" the APS Values and the integrity and good reputation of the APS within the meaning of section 13(11). It was in each case a question of fact and degree whether or not a given "anonymous" communication infringed section 13(11) by failing to uphold the APS Values and the integrity of the APS. Depending on the circumstances and content of an "anonymous" communication, the communication may damage the good reputation of the APS even while it remained anonymous. Consequently, if the impugned provisions of the 1999 Act were restricted in their operation to communications other than "anonymous" communications, the impugned provisions would cease to operate as a deterrent against a significant potential source of damage to the integrity and good reputation of the APS.

Law which prohibited or limited political communication to any extent would generally be found to impose an effective burden on the implied freedom of political communication. The question was whether that burden was justified according to the two-part test of whether the impugned law was for a legitimate purpose 'consistent with the system of representative and responsible government mandated by the Constitution of Australia', and, if so, whether that law was 'reasonably appropriate and adapted to the achievement of that objective'. Purpose of the impugned provisions i.e. sections 10(1), 13(11) and 15(1) of the 1999 Act was to ensure that employees of the APS at all times behaved in a way that upheld the APS Values and the integrity and good reputation of the APS. APS Values were attuned to the maintenance and protection of an apolitical public service that was skilled and efficient in serving the national interest. There could be no doubt that the maintenance and protection of an apolitical and professional public service was a significant purpose 'consistent with the system of representative and responsible government mandated by the Constitution of Australia'.

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Monis v The Queen (2013) 249 CLR 92; Tajjour v New South Wales (2014) 254 CLR 508; McCloy v New South Wales (2015) 257 CLR 178 and Brown v Tasmania (2017) 261 CLR 328 ref.

It was highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government had confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS would faithfully and professionally implement accepted government policy, irrespective of APS employees' individual personal political beliefs and predilections. To the same end, it was most desirable if not essential that management and staffing decisions within the APS be capable of being made on a basis that was independent of the party political system, free from political bias, and uninfluenced by individual employees' political beliefs. The requirement imposed on employees of the APS by sections 10(1) and 13(11) of the 1999 Act at all times to behave in a way that upheld the APS Values and the integrity and good reputation of the APS represented a rational means of realising those objectives and thus of maintaining and protecting an apolitical and professional public service. The impugned provisions were suitable in the necessary sense. [p. 1578] I

Impugned provisions of the 1999 Act, including their prescription of the range of penalties and the procedures for the assessment of breach and the imposition of penalty and review, presented a plainly reasoned and focused response to the need to ensure that the requirement of upholding the APS Values and the integrity and good reputation of the APS trespassed no further upon the implied freedom of political communication than was reasonably justified. Provided a decision maker imposing a penalty under section 15 of the 1999 Act acted reasonably, and so in accordance with the legal requirement that the penalty be proportionate to the nature and gravity of the contravention and the personal circumstances of the employee, there could be no risk of infringement of the implied freedom of political communication. It was no part of a decision maker's function in imposing penalty under section 15 to take the implied freedom into account. The task was to impose a penalty which accorded to the nature and gravity of the subject breach and the personal circumstances of the employee in question.

Chief of Defence Force v Gaynor (2017) 246 FCR 298 ref.

Termination of the respondent's employment was not unlawful. Penalty imposed was in accordance with the provisions of the 1999 Act and so within the limits set by the implied freedom of political communication.

Per Gageler, J; concurring

The answer to whether sections 10(1)(a), 13(11) and 15(1)(a) and (3) of the 1999 Act operated to infringe the constitutionally implied freedom of political communication across the range of their potential operations turned on whether the burden which those provisions operated to impose on freedom of political communication was a burden that was justified. The burden was justified if two conditions were satisfied. One was that the object of the impugned provisions, identified in section 3(a) of the 1999 Act, was consistent with the constitutionally prescribed system of representative and responsible government. The other was that the impugned provisions were reasonably appropriate and adapted to achieve that identified object in a manner consistent with that constitutionally prescribed system of government. The impugned provisions, satisfied both said conditions. The object identified in section 3(a) of the 1999 Act was not only consistent with the constitutionally prescribed system of representative government but served positively to promote the constitutionally prescribed system of responsible government. Sections 10(1)(a), 13(11), 15(1)(a) and (3) were narrowly tailored to achieve that object in a manner which minimally impaired freedom of political communication. The burden which the impugned provisions imposed on freedom of political communication was therefore justified.

The burden which any law operated to impose on freedom of political communication laid in its incremental effect on the ability of a person or persons to make or to receive communications capable of bearing on electoral choice. The burden which sections 10(1)(a), 13(11), 15(1)(a) and (3) of the 1999 Act operated to impose on freedom of political communication was a constraint on the scope of political communication permitted to be made by a person who was an APS employee for so long as he or she remained an APS employee. It was not a blanket restraint on all civil servants from communicating to anyone any expression of view on any matter of political controversy. The constraint which the impugned provisions of the 1999 Act operated to impose on political communication by an APS employee was both substantial and directly targeted at political communication. It operated on persons within a specified class, but did not discriminate on the basis of any particular viewpoint.

Brown v Tasmania (2017) 261 CLR 328 at 386 [188]; [2017] HCA 43 and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 77 ref.

Requirement of section 13(11) of the 1999 Act that an APS employee must at all times "behave in a way" that "upholds" the APS Value identified in section 10(1)(a) was a requirement to observe a professional standard. What it demanded of a person who was an APS employee was observance of a measure of restraint or moderation in the expression of a political opinion. The precise measure was highly situation-specific and could not readily be reduced to a set of prescriptive rules of behaviour. The level of circumspection in the expression of a political opinion that might properly be expected of an APS employee in a discussion with a journalist or a member of the public, for example, might not properly be expected of that same APS employee in a discussion with a close friend or relative. Likewise, the level of circumspection that might properly be expected may depend on the APS employee's level of seniority and responsibility. Further section 13(11) of the 1999 Act in its application to section 10(1)(a) was not self-executing. Whether or not an APS employee had failed to behave in a way that upheld the APS Value identified in section 10(1)(a) was not a question that could arise for determination by a court. It was a question that had been committed to administrative determination in accordance with established procedures.

Impugned provisions of the 1999 Act also applied to 'anonymous' communications. Confidence of the Government, the Parliament and the public in the APS as an apolitical and professional organisation would be undermined without more were an APS employee free to engage with impunity in clandestine publication of praise for or criticism of a political policy of the Government of the day or of a political party which might then or later be represented in the Parliament.

Per Gordon, J; concurring

Impugned provisions read in the context of the 1999 Act as a whole, required members of the APS, on pain of sanction, to behave at all times in a way that upheld the values of political neutrality, impartiality and professionalism, while being openly accountable to the government, the Parliament and the public within the framework of ministerial responsibility. The requirement to uphold the apolitical nature, integrity and good reputation of the APS not only was consistent with, but was a defining characteristic of, the constitutionally prescribed system of representative and, in particular, responsible government. Such values directly promoted the internal character and functioning of the APS and public confidence in its capacity to serve the government of the day. They did not impose an unjustified burden on the implied freedom of political communication.

It was necessary to identify the legal and practical operation and effect of the impugned provisions of the 1999 Act within the framework of the relevant statutory scheme. First, the impugned provisions could not be read in isolation. In understanding the legal and practical operation of the provisions, the content and process of the statutory scheme, including section 15 of the 1999 Act, must be considered. In particular, sections 13(11) and 10(1)(a) of the 1999 Act were not self-executing. They were only given legal "teeth" through determination of breach. They provided for a both just and appropriate sanction and transparency in that their application required procedural fairness and was subject to review. Second, the impugned provisions were directed to a specific group of people, "APS employees". They did not apply to the public at large. Third, the impugned provisions did not, in their terms, directly target political communication. The provisions were directed at the conduct of APS employees "at all times", not just in the course of employment, but not all conduct. A "nexus" was required: the conduct must fail to uphold the APS Values and, further or alternatively, the integrity and good reputation of the APS. Whether the specific conduct was caught would necessarily require an evaluative judgment that would depend on the seniority of the APS employee, when, where and how any public comment was made, and the language and tone of the comment. Specifically, not all public comment by a public servant would be found to be in breach of the statutory scheme - only those comments that failed to uphold the APS Values or the integrity and good reputation of the APS and, thus, failed to uphold an essential part of what was necessary for responsible government. Fourth, the content of the burden was transparent. The scheme of the 1999 Act imposed distinct procedures for determination of breach, which included merits review as well as independent assessment of the appropriateness of the sanction.

Per Edelman, J; concurring:

Despite the deep and broad constraints on freedom of political communication imposed by section 13(11) of the 1999 Act, in the context of the APS Values and with the sanctions in section 15(1), the law was reasonably necessary and adequately balanced given the place of its legitimate policy purpose in [Australia's] constitutional tradition and the importance of that purpose to responsible government. The legislation [i.e. the 1999 Act] was valid in all of its applications.

Section 13(11) when read with section 10(1)(a) of the 1999 Act and the other APS Values, did not impose behavioral obligations that precluded a public servant from making political comment on social media. Rather, they supported an interpretation of section 13(11) that created a boundary, albeit ill-defined, between acceptable expression of political opinions and unacceptable expression of political opinions. Considering that a public servant was intended to be able to take part in their political community, that boundary would only be crossed when comments sufficiently imperiled the trust between, on the one hand, the APS and, on the other, Parliament, the executive government, or the public. An assessment of when that trust would be sufficiently imperiled would depend upon all the circumstances. Although all circumstances were relevant, there were six factors of particular significance to any assessment of whether the relevant trust was sufficiently imperiled: (i) the seniority of the public servant within the APS; (ii) whether the comment concerned matters for which the person had direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities; (iii) the location of the content of the communication upon a spectrum that ranged from vitriolic criticism to objective and informative policy discussion; (iv) whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly; (v) whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and (vi) if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant's duties or responsibilities.

Although the burden imposed by sections 13(11) and 15 of the 1999 Act on the freedom of political communication was deep and wide, it was mitigated by the various review mechanisms available to an employee who had been sanctioned under section 15(1).

Per Kiefel CJ, Bell, Keane and Nettle, JJ:

(b) Legislation---

----Appropriateness---Legitimate purpose---Suitable, necessary and adequate in balance---Law may be regarded as reasonably appropriate and adapted or proportionate to the achievement of a legitimate purpose consistent with the system of representative and responsible government if the law was suitable, necessary and adequate in its balance---Law was suitable in that sense if it exhibited a rational connection to its purpose, and a law exhibited such a connection if the means for which it provided were capable of realising that purpose---Where a law had a significant purpose consistent with the system of representative and responsible government mandated by the Constitution (of Australia) and it was suitable for the achievement of that purpose, such a law was not ordinarily to be regarded as lacking in necessity unless there was an obvious and compelling alternative which was equally practicable and available and would result in a significantly lesser burden on the freedom/right in question---If a law was presented as suitable and necessary in such senses, it was regarded as adequate in its balance unless the benefit sought to be achieved by the law was manifestly outweighed by its adverse effect on the freedom/right.

McCloy v New South Wales (2015) 257 CLR 178; Brown v Tasmania (2017) 261 CLR 328; Clubb v Edwards (2019) 93 ALJR 448; Tajjour v New South Wales (2014) 254 CLR 508; Monis v The Queen (2013) 249 CLR 92; Davis v The Commonwealth (1988) 166 CLR 79; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Cunliffe v The Commonwealth (1994) 182 CLR 272 ref.

Per Gageler, J

(c) Fundamental Rights---

----Public servants---Freedom of political communication---Scope---Question as to whether provisions of a legislation operated to infringe the freedom of political communication---Answer to such question turned on whether the burden which the provisions operated to impose on freedom of political communication was a burden that was justified---Burden was justified if two conditions were satisfied; first, that the object of the impugned provisions was consistent with the constitutionally prescribed system of representative and responsible government, and second, that the impugned provisions were reasonably appropriate and adapted to achieve that identified object in a manner consistent with that constitutionally prescribed system of government.

(d) Civil service---

----Punishment---Discretion of competent authority, exercise of---Such discretion could be exercised only in compliance with the principles of procedural fairness and only within the bounds of reasonableness---Reasonableness or unreasonableness of the imposition of any particular sanction (punishment) from within a range of sanctions (punishments) necessarily fell to be determined in that context by reference to considerations which included whether, and if so to what extent, the sanction could be seen to be proportionate to the severity of the breach that had been found.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Wotton v Queensland (2012) 246 CLR 1 ref.

(e) Fundamental Rights---

----Freedom of political communication---Scope---Law which burdened freedom of political communication by empowering an exercise of an administrative discretion---Validity---Law which conferred discretion capable of being exercised to impose a direct and substantial burden on freedom of political communication was a law that required close scrutiny corresponding to a compelling justification if it was not to infringe the implied freedom of political communication---Validity of such law was to be determined by asking in the first instance whether the burden was justified across the range of potential outcomes of the exercise of that discretion---If the burden was justified across the range of potential outcomes, that was the end of the constitutional inquiry; the law was valid and the validity of any particular outcome of the exercise of discretion was to be gauged by reference solely to the statutory limits of the discretion---In such circumstances no occasion would arise to consider whether the scope of the discretion might be read down in order to ensure that the law was within constitutional power---Consequently there would be no occasion to consider whether a particular outcome might fall within the scope of the discretion as so read down, and there would accordingly be no occasion to consider whether a particular outcome fell within the scope of the discretion having regard to the freedom of political communication.

Wotton v Queensland (2012) 246 CLR 1 ref.

Per Gordon, J

(f) Responsible government, principle of---

----Scope---Securing accountability of government activity was the very essence of "responsible government" − the system of government by which the executive was responsible to the legislature---Responsible government was the means by which Parliament brought the Executive to account so that the Executive's primary responsibility in its prosecution of government was owed to Parliament.

Egan v Willis (1998) 195 CLR 424 at 451 [42]; [1998] HCA 71 ref.

(g) Responsible government, principle of---

----Ministerial responsibility, concept of---Scope---Important element of the principle of responsible government was the concept of ministerial responsibility---Ministerial responsibility meant the individual responsibility of Ministers to Parliament for the administration of their departments, and the collective responsibility of Cabinet to Parliament (and the public) for the whole conduct of administration---Through ministers the whole of the administration, departments, statutory bodies and agencies of one kind and another were responsible to the Parliament and thus, ultimately, to the people---Ministerial responsibility was achieved because Ministers sat in, and were answerable to, Parliament.

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364 and Australia, Royal Commission on Australian Government Administration, Report (1976) at 59 [4.2.1] ref.

(h) Responsible government, principle of---

----Public servants, duty of---Scope---Apolitical public service---Within the system of responsible government, public servants worked for Ministers, who were in turn responsible to Parliament---Such work included, for example, advising upon and implementing ministerial decisions regardless of which party or parties had formed government---Ministerial responsibility to Parliament necessarily entailed loyalty of civil servants to Ministers, and by the same token their anonymity and neutrality---Need for, and importance of, an apolitical public service was not limited to the internal character and functioning of a country's public service; it was essential to upholding the constitutionally prescribed system of representative and responsible government and, no less importantly, the public's perception of that system; it was a defining characteristic of the system of responsible (and representative) government.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 348-349 [23]-[25], 362 [63], 370-371 [88]-[92]; [2013] HCA 18; Wotton v Queensland (2012) 246 CLR 1 at 34 [91]; [2012] HCA 2 and Parker, "Official Neutrality and the Right of Public Comment: I. The Implications of the Bazeley Case" (1961) 20 Australian Journal of Public Administration 291 at 294 ref.

Per Edelman, J

(i) Fundamental Rights---

----Public servant---Freedom of political communication---Scope---Structures proportionality testing---Boundaries of freedom of speech were generally the province of parliament---Judiciary could constrain the choices of a parliament only at the outer margins for reasons of systemic protection---Freedom of political communication [that was implied in the Constitution of Australia] was highly constrained---Said freedom was not an individual freedom; it was an implied constraint that operated directly upon legislative power by restricting that power only so far as necessary for the effective functioning of the system of representative and responsible government manifested in the structure and text of the Constitution (of Australia)---Said requirement of necessity that constrained the implied freedom of political communication meant that freedom of political communication was not a trump over other values that were sought to be implemented in legislation that gave effect to government policy---For the effective functioning of representative and responsible government it was necessary for parliament to make, and the executive to implement, policy decisions that promoted other values---Need to respect parliamentary policy was reflected in the proper application of the adequacy in the balance stage of structured proportionality testing, which required great latitude in the assessment of whether the implied freedom had been contravened by laws that implemented important parliamentary policy---Structured proportionality testing promoted transparent reasoning in the application of an abstract constitutional implication; it requires the court to confront directly the suitability, reasonable necessity, and adequacy in the balance of laws that imposed a burden upon political communication.

Clubb v Edwards (2019) 93 ALJR 448 at 551-552 [495]-[498]; 366 ALR 1 at 130-131 ref.

(j) Fundamental Rights---

----Public servant---Apolitical public service---Prohibition on making public comments on political matters---Statutory history of laws, rules and regulations in Australia that prohibit public servants from making comments on political matters provided.

(k) Fundamental Rights---

----Public servant---Apolitical public service---Freedom of political communication---Scope---In a system of modern representative government it was fundamentally important, and indeed essential, that a Parliament had the freedom to make laws that implemented the policy decisions it made for the welfare of the governed---Where a law impaired freedom of political communication in a reasonably necessary manner in pursuit of another legitimate object, the law should only be held to be unconstitutional if there was such a gross imbalance between, on the one hand, the importance of that legitimate object to the Parliament, and, on the other hand, the magnitude of the burden that the law placed on the implied freedom of political communication, so as to pose a threat to the integrity of the constitutionally prescribed system of representative and responsible government (in the Constitution of Australia).

Clubb v Edwards (2019) 93 ALJR 448 at 552 [496]-[497]; 366 ALR 1 at 130-131 ref.

B J Tronson for the appellant (instructed by Australian Government Solicitor)

R Merkel QC with C G Winnett and C J Tran for the respondent (instructed by Lander & Co)

S P Donaghue QC, Solicitor-General of the Commonwealth, and C L Lenehan with J D Watson for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with F I Gordon for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

C D Bleby SC, Solicitor-General for the State of South Australia, with L Gavranich for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

J A Thomson SC, Solicitor-General for the State of Western Australia, with N T L John for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions

2019 S C M R 1704

[High Court of Australia]\

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

GLENCORE INTERNATIONAL AGand others---Plaintiffs

Versus

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIAand others---Defendants

[2019] HCA 26

Decided on 14th August, 2019.

(a) Equity---

----Legal professional privilege---Scope---Equity would restrain an apprehended breach of confidential information and would do so with respect to documents which were the subject of legal professional privilege and which were confidential---Equity would restrain third parties if their conscience was relevantly affected.

Lord Ashburton v Pape [1913] 2 Ch 469 and Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 ref.

(b) Legal professional privilege, doctrine of---

----Scope---Documents subject to legal professional privilege---Whether legal professional privilege operated only as an immunity or was also an actionable legal right - Documents in question were created by a law firm, for the sole or dominant purpose of providing plaintiff-company with legal advice about a corporate restructure---Said documents were stolen from the electronic file management system of law firm and disseminated---Defendant-tax authority also obtained copies of the said documents---Plaintiff argued that the documents were subject to legal professional privilege and asked the defendant to return them and provide an undertaking they would not be referred to or relied upon---Defendant refused to return the documents or provide such an undertaking---Plaintiff therefore sought an injunction restraining the taxation authorities from making any use of documents, and an order for the delivery up of the documents---Held, that legal professional privilege was not a legal right which was capable of being enforced, or used as a cause of action---Said privilege was only an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications---Legal professional privilege operated as a means of (defensively) resisting the compulsory production of information, but did not provide a positive right entitling the holder of the privilege to a remedy, such as an injunction restraining the use of legally privileged material---Where documents were withheld from disclosure no question of restraining persons from accessing them could arise---If they had come into the possession of another person in circumstances which raised an equity, an injunction could be granted in order to protect their confidential nature---Relief asked for by the plaintiff sought to transform the nature of the privilege from an immunity into an ill-defined cause of action which may be brought against anyone with respect to documents which may be in the public domain---Plaintiff's proceedings were dismissed with costs accordingly

Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 5th ed (2015) at [21-025]-[21-035] and Lord Ashburton v Pape [1913] 2 Ch 469 ref.

(c) Legal professional privilege, doctrine of---

----History of the doctrine of legal professional privilege stated.

Holdsworth, A History of English Law, 3rd ed (1944), vol 9 at 201 & 202; Brereton, "Legal Professional Privilege", in Gleeson, Watson and Peden (eds), Historical Foundations of Australian Law (2013), vol 2, 127 at 130 and Baker v Campbell (1983) 153 CLR 52 at 60 per Gibbs CJ, 93-94 per Wilson J, 113-114 per Deane J, 126-127 per Dawson J. ref.

(d) Legal professional privilege, doctrine of---

----Scope and significance---Legal professional privilege was described as a right which was fundamental to persons and to the legal system---Said privilege was a practical guarantee of fundamental, constitutional or human rights; it was not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest---Legal professional privilege promoted the public interest because it assisted and enhanced the administration of justice by facilitating the representation of clients by legal advisers---By keeping secret their communications, the client was encouraged to retain a lawyer and to make full and frank disclosure of all relevant circumstances to the lawyer.

Baker v Campbell (1983) 153 CLR 52 at 64 per Gibbs CJ, 106 per Brennan J, 113 per Deane J, 122 per Dawson J.; A M & S Europe Ltd v Commission of the European Communities [1983] QB 878 at 941; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J.; Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 at 206-207 per Fair J.; R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at 612 [31] per Lord Hoffmann and Grant v Downs(1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ. ref.

(e) Common law---

----Manner in which the body of common law developed---Scope---Policy considerations---Law developed through the application of settled principles to new circumstances, by reasoning from settled principles to new conclusions or determining that a category was not closed---Further, the law must develop in coherence with the body of law to which it related---Policy considerations may influence the development of the law but only where that development was available having regard to the state of settled principles---Policy considerations could not justify an abrupt change which abrogated principle in favour of a result seen to be desirable in a particular case. 2

PGA v The Queen (2012) 245 CLR 355 at 373 [29] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; [2012] HCA 21 and Breen v Williams (1996) 186 CLR 71 at 99 per Dawson and Toohey JJ. ref.

I M Jackman SC with T L Phillips for the plaintiffs (instructed by King and Wood Mallesons)

2019 S C M R 1

[Supreme Court of Pakistan]

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

HUMAN RIGHTS CASE NO. 3654 OF 2018: In the matter of

Human Rights Case No.3654 of 2018, decided on 8th November, 2018.

(In the matter regarding appointment of Managing Director, Pakistan Television Corporation).

(a) Public Sector Companies (Corporate Governance) Rules, 2013---

----Rr. 3(1), 3(7), 4(4) [as it existed before amendment by SRO Nos.275(I)/2017], 17(2)(f) & 17(3)---Pakistan Television Corporation's Memorandum and Article of Association, Arts. 83, 85, 86, 87 & 95---Companies Act (XIX of 2017), Ss. 153(g), 204(5) & 212---Constitution of Pakistan, Art. 184(3)---Human rights case---Chairman and Director, Pakistan Television Corporation ("PTV")---Appointment, salary and allowances---Legality---Lack of fiduciary behavior---While the office of the Managing Director of PTV remained vacant, that of the Chairman was occupied by person "Q"---Summaries were moved for relaxation of the upper age limit of 65 years for appointment of "Q" and for the approval of an immensely generous salary package for him---On account of complete lack of skill and experience of running a company, PTV, once a profitable institution, experienced a sharp decline both financially and in its reputation as a major player in the electronic media market---Pakistan Television Corporation ("PTV") was burdened with an exorbitant amount of expenses on account of inefficient and inept management---Business management skills and experience of running a big company were the basic requirements for an MD/Chairman to efficiently run a huge commercial enterprise, such as PTV, but nowhere from the record produced it was evident that the Federal Government considered such criteria while nominating "Q" as a Director of PTV---Post of Director, PTV did not fall within the definition of 'tenure post', therefore the conditions and procedure for appointment provided under Cl.(iii) of Sl. No.141 of the Civil Establishment Code (Esta Code) applied to it---Said conditions provided for publishing an advertisement to gauge the talent pool available for such post, filtering and then assessing the best candidates for the post in accordance with the criteria laid down in the Public Sector Companies (Corporate Governance) Rules, 2013---Admittedly, in the present case, there was no advertisement for appointment thus there was no consideration of any pool of potentially capable candidates from which "Q" was chosen---Disregard of the procedure laid down in Cl.(iii) of Sl. No.141 of the Civil Establishment Code (Esta Code) by the Federal Government in the present case was meant to benefit a predetermined candidate, "Q", whose appointment as Director, PTV was illegal as it was made in violation of the prescribed legal criteria and procedure---Meeting of Board of Directors for appointment of Chairman, PTV was held after the notification of appointment of "Q" as Chairman had already been issued and after he had assumed his charge as a Director and Chairman---Appointment of "Q" as Chairman, PTV, was, thus, also illegal---Furthermore remuneration and other benefits/allowances of "Q", being a Director who also held the additional charge of Chairman, had to be determined by the Directors of PTV in a duly constituted Board meeting, which was absent in the present case---Instead remuneration of Q was determined by the Ministry of Information, Broadcasting and National Heritage in a summary for the Prime Minister, which was seen and approved by the then Minister of Information---Said summary was subsequently approved by the Finance Division and thereafter was seen and approved by the Prime Minister through an approval signed by the then Secretary to the Prime Minister---Besides salary approved for "Q" was also far beyond the salary admissible to MP-I public office holders---Certain unlimited benefits/allowances granted to the office of the Chairman of PTV were not in line with the policy of the 'best interests of the public sector company'---Despite the fact that PTV had suffered colossal losses during the past few years, "Q" was awarded with a generous salary and exorbitant perks and privileges---Payment of salary and the benefits/allowances to "Q" was unlawful and unauthorized under the Public Sector Companies (Corporate Governance) Rules, 2013, and Pakistan Television Corporation's Memorandum and Article of Association, therefore, he was not entitled to such payments and could not retain the same---While holding office of Director and Chairman, PTV, "Q" also hosted a programme for his own self-promotion and personal aggrandizement by utilizing public money---Furthermore, "Q" breached his fiduciary duties when he hired his own son as a scriptwriter for a drama aired on PTV, used two instead of one official car and got maintenance and running allowances for a third personal car, used PTV funds to pay the membership and subscription fees of a club, incurred exorbitant expenses for renovation of various offices and for entertainment of guests inside and outside the office, and used public funds to attend a book exhibition completely unrelated to his duties as a Director and Chairman of PTV---Minister for Information, Minister for Finance and the then Secretary to the Prime Minister were all responsible for the appointment of "Q" as Director and Chairman of PTV, and for the illegal fixation of his terms and conditions of service---Supreme Court directed that on account of lack of fiduciary behavior, "Q" was ineligible to be appointed as a Director of any company [as per S. 153(g) of the Companies Act, 2017] from date of present judgment; that administrative actions taken by "Q" were beyond the scope of duties of a Chairman as provided in the Public Sector Companies (Corporate Governance) Rules, 2013, therefore all such orders passed by him during his tenure were declared to be illegal and void ab initio; that the loss caused to PTV (as calculated by the Supreme Court) due to the appointment of "Q" shall be recovered from "Q", the then Minister for Information, Minister for Finance and Secretary to the Prime Minister in the ratios 50% ("Q"), 20% (Minister for Information), 20% (Minister for Finance) and 10% (Secretary to the Prime Minister) respectively; that the Federal Government shall appoint a full-time MD of PTV (if the position was still vacant) after fulfilling all legal, procedural and codal formalities, strictly in accordance with law---Human rights case was disposed of accordingly.

Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 and Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Human rights case---Director and Chairman of Pakistan Television Corporation ("PTV")---Appointment---Record of present case revealed irregularities/illegalities in the appointment of "Q" as a Director and the Chairman of PTV and the fixation of his terms and conditions---Record further showed that there was nepotism and misuse of authority regarding "Q's" appointment as Director/MD PTV, therefore it was well within the powers of the Supreme Court to determine the validity of such appointment and fixation of salary etc.

(c) Constitution of Pakistan---

----Art. 184(3)---Public Sector Companies (Corporate Governance) Rules, 2013, R. 2(1)(g)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Person performing functions in connection with the affairs of the Federation---Function test---Pakistan Television Corporation ("PTV")---Directors and Chairman, PTV, appointment of---Pakistan Television Corporation ("PTV"), the national broadcaster, fully satisfied the function test in that it was substantially under the control of the Federal Government---Pakistan Television Corporation ("PTV") was a public limited company with the Federal Government holding the entire paid up share capital,thus the Government had a major financial interest in PTV---Moreover, majority of its Directors (six out of eight), were representatives of the Federal Government which constituted the Board of Directors---Federal Government completely controlled the affairs of PTV, therefore, it satisfied the definition of public sector company provided in R.2(1)(g) of the Public Sector Companies (Corporate Governance) Rules, 2013 and its control vested in a substantial manner in the hands of the Federal Government---Pakistan Television Corporation ("PTV") was a person performing State functions and therefore the validity of appointment of its Director and Chairman, could be examined by the Supreme Court [under Art. 184(3) of the Constitution], particularly considering the seemingly arbitrary manner in which the present Chairman was appointed.

Salahuddin v. Frontier Sugar Mills and Distillery PLD 1975 SC 244 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

(d) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Matter of public importance---Misuse of public money in a public sector institution---Supreme Court had ample jurisdiction to consider a matter where it appeared that public money had been misused through the corrupt practices of nepotism and favouritism by giving excessive salary/perks/privileges and incurring other undue expenses causing loss to the public exchequer---When the law was blatantly flouted by the Executive at the expense of a national institution and public money was showered on a chosen few as a favour without regard to qualification or merit, it undeniably became a matter of public importance.

(e) Public fuctionary---

----Discharge of functions---Scope---Public officials owed their first and foremost allegiance and loyalty to the State, the Constitution and the law, thus, they were obligated to act in accordance therewith, without being influenced by any extraneous considerations---Such officials were not allowed to take decisions and push for relaxations and summaries arbitrarily which bypassed or circumvented the law and the rules and at their own whims and caprices in order to please certain individuals---Government officials were duty bound to discharge their functions independently and were not to be influenced by dictatorial misuse of powers and/or dictated exercise of discretion.

Khalid Jawed Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Additional A.G.P. assisted by Barrister Asad Rahim.

Sardar Ahmed Nawaz Sukhera, Secretary, Ministry of Information.

Tahir Khushnood, D.G. (IP) M/o Information.

Nasir Jamal, ex-D.G. (IP) M/o Information.

Mrs. Saba Mohsin, ex-Additional Secretary, Information.

Yousaf Naseem Khokhar, Secretary Interior.

Muhammad Azam, ex-Secretary Interior.

Abdul Hameed Anjum, and Dr. M. Iqbal, Members FBR.

Saleem Baig, Chairman PEMRA.

Dr. Waqar Masood, ex-Secretary Finance.

Fawad Hassan Fawad, ex-Secretary to P.M.

Nadeem Hasan Asif, ex-Secretary Establishment.

Mrs. Ayesha Hamid, Advocate Supreme Court for Ata-ul-Haq Qasmi.

Nazir Jawad, Advocate Supreme Court.

Zahoor Barlas, DMD PTV for PTV.

Munawar Iqbal Duggal, Advocate Supreme Court for Perveaiz Rashid.

Imran-ul-Haq, Special Prosecutor NAB.

Shariq A. Zaidi, Sr. Partner Ernest and Young.

2019 S C M R 46

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sajjad Ali Shah, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and Rural Development Department, Peshawar and others---Petitioners

Versus

Messrs LUCKY CEMENT LIMITED---Respondent

Civil Petition No. 371-P of 2016, decided on 29th November, 2018.

(Against the judgment dated 26.05.2016 of the Peshawar High Court, Peshawar passed in Writ Petition No. 1039-P of 2015)

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 42---Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001), S. 116 [since repealed]---Cess fee, imposition of---Legality---Levy struck down by a judgment of the Supreme Court sought to be re-imposed by the Government---Undoing effect of judgment of the Supreme Court---Provincial Government by way of a letter imposed the impugned cess fee---High Court struck down the impugned cess finding that the issue of the constitutionality and legality of the said levy had already been determined by the Supreme Court in the case of Lucky Cement Factory Limited v Government of N.W.F.P (2013 SCMR 1511) ["Lucky Cement case"]---Held, that the levy in the 'Lucky Cement case' was on the "loading and unloading of cement and sand" which was to be calculated on the weight of cement and sand, whereas the current impugned levy was on the vehicles carrying cement, sand, shingle, bajri, mud, blocks etc. and the rates charged depended on the type of vehicle---Such minor differences between the wording of the levies did not make any difference---Levy in the 'Lucky Cement case' was imposed under the Khyber Pakhtunkhwa Local Government Ordinance, 2001, whereas the applicable law for the current impugned levy was the Khyber Pakhtunkhwa Local Government Act, 2013---Relevant provisions in both the said laws were not significantly different---Incidentally the parties in the 'Lucky Cement case' and the present case were the same---Apparently the Provincial Government wanted to undo the effect of the 'Lucky Cement case' reported as 2013 SCMR 1511 by changing the wording of the letter, by which the current impugned levy was imposed---Through such questionable means the levy which had already been struck down by Supreme Court was sought to be resurrected---Judgment in the 'Lucky Cement case' was equally applicable to the letter by which current impugned levy was imposed---Issuance of said letter and imposing the current impugned levy was illegal and void in such circumstances---Petition for leave to appeal was dismissed accordingly.

(b) Tax---

----Proposed tax---Inviting public objection---Scope---To enable the public to meaningfully object to any tax proposal it must first know what was proposed to be done.

(c) Tax---

----Taxing statute---Drafting---Vagueness---Effect---Taxing provisions must be drafted with clarity and precision---Uncertainty was an anathema in taxing provisions---Imprecision and vagueness resulted in unnecessary litigation and may also be used as a tool of exploitation.

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa, Sabahuddin Khattak, Advocate Supreme Court along with Fakhar Alam, Additional Secretary and Barkat Ullah Durrani, Dy. Secretary for Petitioners.

Nemo for Respondent.

2019 S C M R 52

[Supreme Court of Pakistan]

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

MUHAMMAD UMAR PANHWAR and others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petitions Nos. 731-K and 732-K of 2018, decided on 7th September, 2018.

(On appeal against the judgment dated 11.6.2018 passed by the High Court of Sindh, 44 Circuit Court, Hyderabad in C.Ps. Nos.D-644 and 1093 of 2018)

Sindh Local Government Act (XLII of 2013)---

----Ss. 24 & 80(2)---Office of Chairman, Municipal Committee---Vacancy due to death of Chairman---Whether Vice Chairman could perform functions and powers of deceased Chairman in terms of S.80(2) of the Sindh Local Government Act, 2013---During absence of Chairman from Pakistan or for any other cause that precluded him to exercise his powers or functions, the Deputy Mayor or as the case may be Vice-Chairman could exercise such powers---Such delegation of powers was under the provisions of subsection (2) of S. 80 of the Sindh Local Government Act, 2013, and was by operation of law for which no Notification was required to be issued by the Government---However, the said Act did not cater for a situation or provide any mechanism when a vacancy occurred on account of a demise of the Mayor, Chairman or a Vice Chairman or Member of the Union Council or Union Committee---Only possibility open to court in such a situation was to direct the Election Commission to hold free and fair election to the office of the Chairman and at the same time to take measures to hold the election to the seat of Chairman, Municipal Committee---Petitions for leave to appeal were converted into appeals and allowed accordingly.

Farooq H. Naek, Senior Advocate Supreme Court for Petitioners (in both cases).

Khalid Javed, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent No.5.

Sibtain Mehmood, AAG along with Najab Bhatti for Province of Sindh.

Khalid Haider Shah, Secy. Local Govt. and Abdullah, Law Officer for ECP.

2019 S C M R 57

[Supreme Court of Pakistan]

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

AGRO TRACTORS (PRIVATE) LIMITED---Appellant

Versus

FECTO BELARUS TRACTORS LIMITED, KARACHI and others---Respondents

Civil Appeal No. 2755 of 2006, decided on 25th September, 2018.

(Against the judgment dated 4.5.2006 of the High Court of Sindh at Karachi passed in Constitutional Petition No. D-304 of 2006)

General Clauses Act (X of 1897)---

----S. 21---Government scheme for zero rated duty on import---Scheme subsequently withdrawn when importer had already placed order for import under the scheme---Promissory estoppel---Scope---When in exercise of administrative power conferred under a statute, a concession was granted as regards customs duty and other Government dues for a fixed period and afterwards it was sought to be withdrawn in exercise of a similar power, the said concession or benefit could not be withdrawn by virtue of S. 21 of the General Clauses Act, 1897, unless the statute itself had conferred such a power on the executive authority, otherwise, the same shall be protected under the principle of promissory estoppel---However, in order to bring the case within the four corners of the principle of promissory estoppel, it was mandatory upon the person claiming the benefit under it, to show that the offer was validly made by the competent authority and thereafter permission/approval was granted/made in a rightful, judicious and transparent manner, without there being any hint of mala fide, arbitrariness, excessive jurisdiction, favoritism or non-transparency therein---In the present case, after thorough examination of the record the High Court rightly held that the procedure of the grant of permission to import tractors at zero rated duty suffered from arbitrariness, excessive jurisdiction, favoritism, lack of transparency, subjectivity and was also not in accordance with the decision of Economic Coordination Committee; therefore, the principles of promissory estoppel were not attracted in the facts and circumstances of the present case---Appeal was dismissed accordingly.

Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439; Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 and Messrs Friendship Textile Mills and others v. Government of Balochistan and others 2004 SCMR 346 ref.

Mehmood A. Sheikh, Senior Advocate Supreme Court for Appellant.

Nemo for Respondent No.1.

Tariq Mehmood Khokhar, Additional A.G.P. and M.S. Khattak, Advocate-on-Record for Respondents Nos. 2 to 4.

Ex parte for Respondents Nos. 5 to 8.

M. Habib Qureshi, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Fazal Samad, Secretary, Legal, FBR for Respondent No.9.

2019 S C M R 61

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

Sardar MASOOD KHAN LUNI---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1225 and 1226 of 2018, decided on 29th October, 2018.

(Against judgment dated 05.10.2018 of Election Commission of Pakistan, Islamabad, passed in No. F.29(21)/2018-Law and F.29(67)/2018-Law)

Elections Act (XXXIII of 2017)---

----S. 9---Election Commission, powers of---Scope---Election for seat of Provincial Assembly---Voters not free to exercise their choice---Intimidation of security personnel at polling stations---Biased Presiding Officers---Voting percentages unreasonably high in certain polling stations---Election declared as null and void by the Election Commission---Election was required to be held in a free, fair and transparent manner, and the electorate must be given an unqualified, free and unconditional choice to vote for the candidates of their choice without fear or intimidation---Record of present case showed that the election was not held in a free and fair manner---Serious law and order lapses occurred at various polling stations which had been taken over by supporters of rival candidates---Election Commission had found that some of the Presiding Officers had been won-over and were taking sides and facilitating rigging---Night before the election, security personnel were attacked and a complaint was lodged with the competent forum---Number of FIRs were also lodged against the returned candidate in which admittedly he was on bail---Analysis of the voting pattern undertaken by the Election Commission also suggested rigging in so far as the percentage of votes allegedly cast in certain polling stations was unreasonably high---Ballot paper books were taken away by creating law and order situation and female staff of female polling stations was harassed and intimidated---On the day of election, certain polling stations were taken over by the parties including the returned candidate---Election was not held in a peaceful, free and fair manner and there were major violations of the election laws which could neither be condoned nor ignored---Election Commission had no choice but to declare the election null and void and direct the constituency to elect its representative in accordance with law without fear or intimidation--- Appeal was dismissed accordingly.

Shazib Masud, Advocate Supreme Court for Appellant.

Sardar M. Latif Khosa, Senior Advocate Supreme Court and M. Arshad, DG (Law), ECP for Respondents.

2019 S C M R 64

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD MANSHA---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 617 of 2017 out of Jail Petition No. 403 of 2014, decided on 15th January, 2018.

(On appeal against the judgment dated 6.11.2014 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Crl. A. No. 250-J of 2009)

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

----S. 295-B---Qanun-e-Shahadat (10 of 1984), Art. 59---Criminal Procedure Code (V of 1898), S. 543---Desecration of the Holy Quran---Reappraisal of evidence---Deaf and dumb witness, evidence of---Interpretation---Solitary eye-witness in the present case was deaf and dumb---Trial Court did not determine the level of said witness's comprehension before recording his evidence---Nothing was present on record to show how the Court concluded that the person who translated the signals of the deaf and dumb witness was well versed with the witness's language of signals---Section 543, Cr.P.C. required that an interpreter "shall be bound to state the true interpretation of such evidence or statement"---Record did not make it clear that in what capacity said person interpreted the sign language of the witness, whether he did so as a translator or as an expert in terms of Art. 59 of the Qanun-e-Shahadat---Trial Court should also have administered an oath to the person translating, but did not do so---In view of such violation of criminal procedural laws the conviction and sentence of the accused could not be sustained and were accordingly set aside.

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

----S. 295-B---Desecration of the Holy Quran---Reappraisal of evidence---Accused was alleged to have defiled pages of the Holy Quran---First Information Report (FIR) was lodged with an inexplicable delay of five days, and it was not lodged by the police nor by the alleged eye-witness, nor even by the Imam of the mosque, where the offence allegedly took place---Defiled Holy Quran was given to the police by a person who did not disclose how he got it---Eleven pages were removed from the defiled Holy Quran, and only said eleven pages were sent to the Chemical Examiner---Investigating Officer testified that only the defiled pages of the Holy Quran were sent for chemical examination but that he had not made any effort for DNA test---Alleged offence took place in the middle of a mosque in the last week of the month of Ramadan when mosques were known to be full with worshipers---Purported eye-witness offered no explanation about his presence in the mosque at the time; he also did not disclose the date or the time of the offence---Said witness saw the alleged offence when admittedly the mosque was in darkness---Investigating Officer testified that the mosque had electricity but did not investigate the absence of light at the time of the alleged offence---Accused was kept in custody by the complainant and his companions for five days, when he was beaten and he allegedly confessed to them---Prosecution disregarded the fact that the case was only reported to the police after the accused was beaten up by the complainant and his companions---Prosecution failed to act independently and fairly, instead virtually acted as the handmaiden of the complainant---In the absence of any tangible evidence, the innumerable contradictions in the prosecution case, the abject failure of the prosecution to act independently and the violation of criminal procedural laws the conviction and sentence of the accused could not be sustained and were accordingly set aside.

Rizwan Ejaz, Advocate Supreme Court for Appellant.

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

2019 S C M R 70

[Supreme Court of Pakistan]

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

MANZOOR HUSSAIN and another---Appellants

Versus

KHALID AZIZ and others---Respondents

Civil Appeal No. 42-K of 206 and H.R.C. No. 36629-S of 2018, decided on 22nd November, 2018.

(On appeal against the judgment dated 19.02.2016 passed by the High Court of Sindh, Hyderabad in R.A. No.272 of 2011)

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

----S. 54---Oral sale transaction---Proof---Disputed sale transactions were based merely on oral statements purportedly made by the deceased before the revenue authorities and allegedly witnessed by persons none of whom were from the side of the deceased---Additionally, the disputed statements of the witnesses neither contained their Computerized National Identity Card numbers nor their addresses, but only their purported thumb impressions, which showed that they were also illiterate---As none of the witnesses of the disputed statements were examined in Court, it was sufficient to hold that the transaction of sale had not been proved---High Court had rightly held that the appellants had failed to prove the disputed sale transaction---Appeal was dismissed accordingly.

(b) Sindh Land Revenue Act (XVII of 1967)---

----S. 39---Transfer of Property Act (IV of 1882), S. 54---Oral sale transaction---Proof---Revenue record---Village Form VII, manipulation in---Examination of the register of Village Form VII, showed that the page that contained one of the two disputed transfer entries was numbered as '58'---Font of the page number '58' was quite bigger than the page numbers on the remaining pages of the same register---Imprint of page number '58' was also much darker than the imprint of the rest of the page numbers of the same register---When pages of a register were numbered with a numbering machine, it was not possible that the size of numbers on pages would be different---Even the impression of ink on a particular page of a register would be the same in comparison to previous and subsequent pages---In the present case, the impression on page number '58' was much pronounced i.e. it was darker than the impression of page numbers on the earlier and subsequent pages---Page number 58 also appeared to have been subsequently inserted in the register as it was taped from the spine---All such circumstances led to the inference that page number '58' was not part of the same register but had been subsequently inserted with the intention to show a back dated transaction in order to defeat the plea of limitation in case the matter was taken to Court---High Court had rightly held that the appellants had failed to prove the disputed sale transaction---Appeal was dismissed accordingly with the direction that copy of present judgment be sent to the Member, Board of Revenue so that appropriate disciplinary action shall be taken against such officials of the revenue department who had manipulated the relevant revenue record.

Abid S. Zuberi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants.

Syed Abdul Waheed, Advocate Supreme Court and Ms. Lubna Ali daughter of Mst. Azra Shamim for Respondents Nos. 1-2.

Shoukat Bijoro, Mukhtiarkar, Tando Adam and Umer Farooq, Tapedar (They appeared subsequently) on Court's Notice.

2019 S C M R 74

[Supreme Court of Pakistan]

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

MOIZ ABBAS---Appellant

Versus

Mrs. LATIFA and others---Respondents

Civil Appeal No. 981 of 2017, decided on 18th September, 2018.

(Against judgment dated 12.05.2017 of High Court of Sindh at Karachi, passed in H.C.As. Nos. 74 and 75 of 2016)

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and mesne profits---Oral sale agreement---Special power of attorney---Authority of attorney---Property in question was owned by the appellant, who executed a special power of attorney in favour of the attorney inter alia authorizing her to rent out the property---Attorney executed a tenancy agreement with the respondent---Subsequently the respondent claimed that the subject property had been sold to him by the attorney by way of an oral sale agreement against a certain sale consideration, and the appellant was required to issue a general Power of Attorney for execution of a sale deed---Appellant filed a suit for declaration, permanent injunction and mesne profits, whereas the respondent filed a counter suit for specific performance, cancellation of the tenancy agreement and permanent injunction---Held, that attorney admitted that the power to sell the subject property was not given to her in the special Power of Attorney---On the contrary the special Power of Attorney was clearly issued for limited purpose of letting out the property, receiving rent and doing things directly related thereto or specifically spelt out---No power, express or implied was given to the attorney that could even remotely be interpreted to confer a power to sell and receive the sale consideration---Furthermore the alleged oral agreement to sell in favour of the respondent appeared to be concocted---No date, time, place or names of witnesses of the alleged oral agreement had been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent---Such requirement was sine qua non for proving the oral sale agreement---Moreover the belated plea of receipt of earnest money by the appellant too, was unacceptable as it was neither pleaded in the reply to the legal notice nor in the written statement filed by the respondent in the appellant's suit---Even otherwise alleged payment of earnest money which was said to have been made, remained unproved---Respondent had indulged in frivolous litigation for many years and wasted valuable time of the Courts of law---Suit filed by the appellant was decreed, whereas suit filed by respondent was dismissed with costs in the sum of Rs.100,000---Appeal was allowed accordingly.

(b) Power of attorney---

----Interpretation---Language of Power of Attorney must be strictly construed.

Imam Din v. Bashir Ahmed PLD 2005 SC 418 ref.

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

----O. VI, R. 7---Pleadings---Scope---No amount of evidence could be considered on a plea of fact which was not raised in the pleadings by the parties.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469 and Abrar Ahmad v. Irshad Ahmed PLD 2014 SC 331 ref.

Sh. Zamir Hussain, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Appellant.

Abdul Qadir Khan, Advocate Supreme Court for Respondents.

2019 S C M R 79

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and

Mazhar Alam Khan Miankhel, JJ

MUNIR AHMAD and another---Appellant/Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No. 37-L of 2018 and Criminal Petition No. 272-L of 2015, decided on 15th November, 2018.

(Against the judgment dated 09.02.2015 passed by the Lahore High Court, Lahore in Crl. As. Nos. 1659, 1954 and Crl. Rev. No.1005 of 2009 and M.R. No. 549 of 2009)

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

----Ss. 302(b), 324 & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah munaqqillah---Reappraisal of evidence---Benefit of doubt--- No independent corroboration for ocular and medical evidence---Four persons including the accused were nominated in the FIR, and out of them three, including the accused, were attributed joint role of firing at the deceased---All three co-accused were acquitted by the Courts below---Question which required consideration in such circumstances was whether the evidence which had been disbelieved to the extent of three co-accused who had been acquitted by the courts below could be believed to the extent of the accused---Set of witnesses which had been disbelieved to the extent of acquitted co-accused persons could only be believed to the extent of the accused, if some independent and strong corroboration was available---However in the present case, there was no independent corroboration against the accused as far as the ocular account and medical evidence was concerned---While extending benefit of doubt the accused was also acquitted of the charges framed against him---Appeal filed by accused was allowed accordingly.

(b) Criminal trial---

----'Maxim' 'Falsus in uno falsus in omnibus'---Said principle was not applicable in Pakistan's system designed for dispensation of justice in criminal cases and courts were required to sift grain from the chaff in order to reach at a just conclusion.

(c) Criminal trial---

----Witness---Reliance upon evidence of witnesses disbelieved to extent of co-accused --- If some independent and strong corroboration was available, then the set of witnesses which had been disbelieved to the extent of acquitted co-accused could be believed to the extent of the accused.

Agha Intizar Ali Imran, State counsel for Appellant (in Crl. A. 37-L of 2018).

Nasir-ud-Din Khan Nayyer, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner (in Crl. P. 272-L of 2015).

Mazhar Sher Awan, Additional P.-G. for the State (in both cases).

2019 S C M R 84

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Syed Mansoor Ali Shah and Yahya Afridi, JJ

TAJ WALI SHAH---Appellant

Versus

BAKHTI ZAMAN---Respondent

Civil Appeal No. 71-P of 2015, decided on 22nd October, 2018.

(On Appeal from the judgment of the Peshawar High Court, Peshawar dated 19.02.2015 passed in Civil Revision No. 524-P of 2014)

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

----S. 8---Recovery of specific immovable property---Person entitled to seek remedy under S. 8 of Specific Relief Act, 1877---Scope---Such person would include an owner, lessor, lessee, mortgagee or mortgagee of immovable property, trustee or beneficiary of a trust.

Nair Service Society Ltd. v. K.C. Alexander and others AIR 1968 SC 1165 ref.

(b) Constitution of Pakistan---

----Arts. 4 & 10-A---Access to justice, right of---Scope---Vested right---Any right vested in a person to seek his remedy under the law should be liberally construed, as this would bolster his recognised fundamental right of access to justice.

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

----Ss. 8 & 42---Suit for recovery of specific immovable property---Relief---Scope---In a suit under S. 8 of the Specific Relief Act, 1877, the declaration of the entitlement was an inbuilt relief claimed by the plaintiff of such a case---In such circumstances, a prior declaration for the said entitlement under S. 42 of the Specific Relief, 1877 could not be made a condition precedent for filing a suit for possession under S. 8 of the Act.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 ref.

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

----Ss. 8 & 9---Recovery of specific immovable property---Undivided property--- Co-owners--- Co-owner of disputed property seeking possession from another co-owner, who was in peaceful possession of the disputed undivided property---Remedy in such circumstances was to seek possession through partition, and not by a suit under S. 8 of the Specific Relief Act, 1877.

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

----S. 8---Recovery of specific immovable property---Vested right---Scope---Person in possession of an immovable property acquired a vested right to possession, which could not be taken away unless the challenge was made thereto by a person who showed prior or better title through transfer or inheritance.

(f) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 3 & 42---Abadi deh---Proprietary rights, transfer of---Transfer of proprietary rights in abadi deh were not recorded under S. 42 of the Khyber Pakhtunkhwa Land Revenue Act, 1967, as the said area had been, under S. 3 of the said Act, expressly excluded from the applicability thereof.

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

----S. 8--- Recovery of specific immovable property--- Undivided immovable property---Suit filed by one of the co-sharers for ejectment of a trespasser or person exercising possession over disputed property---Effect---Firstly, filing of such a suit could not be considered as evidence of the co-sharer's denial of the title of the other co-sharers; secondly, the suit brought by the co-sharer would be deemed to be for the benefit of the other co-sharers; and thirdly, when the co-sharer acquired possession in consequence of the proceedings, he would be in possession of the entire property, on behalf of all co-sharers and his said possession could not be deemed as adverse to the other co-sharers.

Bashir Ahmad and others v. Parshotam and others AIR 1929 Outh 337 and Kanchi Kamamma and others v. Yerramsetti Appanna AIR 1973 Andhra Pradesh 201 ref.

M. Faheem Wali, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Appellant.

Muhammad Asif, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for Respondent.

2019 S C M R 95

[Supreme Court of Pakistan]

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

DIG, NH & MP, KARACHI---Petitioner

Versus

GHULAM MUSTAFA MAHAR and another---Respondents

Civil Petition No. 2248 of 2017, decided on 25th October, 2018.

(Against judgment dated 07.04.2017 of Federal Service Tribunal, Karachi, passed in Appeal No. 1(K)CE of 2014)

Government Servants (Efficiency and Discipline) Rules, 1973---

----S. 4(b)(iv)---Dismissal from service---Habitual absence from duty---Failing to respond to official communication---Respondent, who was employed as a junior clerk in the National Highways and Motorway Police, had a long history of unauthorized absence from duty for which various show cause notices had been issued to him from time to time---Respondent did not bother to file a response to the notices, where after, he was summoned to the orderly room and granted personal hearing---Respondent's plea that he was unwell was found to be implausible and not supported by documentary evidence---Accordingly he was dismissed from service in terms of R. 4(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 on account of misconduct, unauthorized absence from duty and failing to respond to the official communications which had admittedly been received him---Even after his reinstatement into service pursuant to the orders passed by the Service Tribunal, respondent did not improve his conduct and continued to remain absent from duty without permission or authorization for which a number of show cause notices had been issued to him---Conduct of respondent who was part of a disciplined force was detrimental to the discipline of the force, and his past and present conduct indicated a casual, careless and non-serious attitude---Supreme Court set aside the impugned judgment of the Service Tribunal in circumstances and order of the competent authority dismissing respondent from service was restored.

Sajid Ilyas Bhatti, DAG and M. Iqbal, DSP Legal, NH&MP for Petitioner.

Ex parte for Respondent No.1.

2019 S C M R 99

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

BASHER AHMED and others---Appellant

Versus

Mst. FATIMA BIBI (DECEASED) through LRs and others---Respondents

Civil Appeal No. 1057 of 2010, decided on 18th October, 2018.

(On appeal from the judgment/order dated 23.9.2010 of the Lahore High Court, Bahawalpur Bench passed in C.R. No.48-D of 2002)

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

---- S. 19-A---Succession to tenancy---Daughter, share of---Tenancy granted by erstwhile State of Bahawalpur---Share of daughters in tenancy after death of original tenant---Plea of appellant that the Colonization of Government Lands (Punjab) Act, 1912 in its original form granted succession in tenancy rights to all the legal heirs of the original tenant as per rules of Islamic law, but the subsequent addition of S. 19-A to the said Act, operated to exclude female heirs---Validity---Right of inheritance of a female heir under Islamic law which was conferred prior to addition of S. 19-A, could not be defeated by the perverse interpretation of S. 19-A put forward by the appellant---Respondent/female heir being one of the female heirs of the original tenant, succeeded to her share in her father's tenancy by operation of the rule enunciated by the Supreme Court in the case of Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686.

M. Munir Paracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant.

Malik Muhammad Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (1(i), LRs, (ii-vii) 2-5, 8).

Ex parte for Respondents (1, 6(i-viii), 7(i-xii)).

2019 S C M R 101

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Mazhar Alam Khan Minakhel, JJ

SPACE TELECOM (PRIVATE) LIMITED, LAHORE---Petitioner

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY, ISLAMABAD through Chairman---Respondent

Civil Petitions Nos. 3186 and 3187 of 2017, decided on 22nd October, 2018.

(Against the judgment dated 25.05.2017 of the Islamabad High Court, Islamabad passed in F.A.O. No.95/09 and W.P. No. 2686 of 2009)

Contract Act (IX of 1872)---

----Ss. 39, 56, 65 & 74---Mobile Cellular Licences---Bidding/auction process---Failure to deposit bid price within the stipulated time---Forfeiture of earnest money---Legality---Consortium of three companies (including the petitioner-company) submitted their bid for a licence, which was accepted by the Pakistan Telecommunication Authority ("Authority")---Consortium was required to pay 25% of the bid price, less the earnest money already deposited with the Authority---Said amount was required to be paid within ten days of the acceptance of the bid---Consortium however did not make payment, therefore, the Authority wrote to the Consortium informing it that the Authority had forfeited the earnest money---Petitioner-company, which was part of the Consortium, contended that the Consortium had every intention to make the payment but was prevented from doing so by an order of a civil court; that subsequently the Authority had awarded the licence to another party at the same price mentioned by the Consortium in their bid, therefore, the Authority had not suffered any loss; that in such circumstances the Authority should have refunded to the petitioner its contribution of the earnest money and failure to refund violated the provisions of S. 74 of the Contract Act, 1872---Validity---Sub-clauses (k) and (n) of Cl. 9 and sub-clause (a) of Cl. 10 of the "Information Memorandum Mobile Cellular License" dated February 09, 2004 ("the Memorandum") clearly stipulated that the earnest money would be forfeited if the requisite payments were not made---Petitioner did not state that the said clauses were not attracted or that they had been misconstrued by the Authority---Regarding the suit in the civil court, which allegedly prevented the Consortium from depositing the bid amount, the petitioner had not attached copies of its written statement, reply and/or counter affidavit, to the plaint and the application respectively, to enable the court to ascertain whether the petitioner had contested the suit and what, if any, was its defence---Nothing was available on the record to show that the petitioner made any attempt to have the order of the civil court set aside, or varied, to enable the petitioner to pay the said amount---Petitioner also did not demonstrate that it had the amount in its account/s to pay the Authority, and which it would have paid, but for the said order of the civil court---Petitioner had filed a suit in a civil court but subsequently withdrew it without filing another to recover the earnest money, therefore, there had been no judicial determination, that is, after evidence was led and considered, as to whether the petitioner was entitled to a judgment and decree in its favour on the principle of restitution (S. 39 of the Contract Act, 1872) or on the ground that the contract was impossible to perform (S. 56 of the Contract Act, 1872) or that the contract had become void (S. 65 of the Contract Act, 1872) or that the forfeited amount did not constitute "reasonable compensation" (S. 74 of the Contract Act, 1872) or on the ground that the Authority had repudiated the contract entitling the petitioner to damages---Consortium, which included the petitioner, having failed to fulfill their contractual obligations entitled the Authority to forfeit the earnest amount---Amount of the earnest money paid by the Consortium constituted less than 3.5% of the total bid amount, whereas the contribution of the petitioner towards the earnest money constituted less than 1.8% of the total bid amount---Percentile of 1.8%, or for that matter even 3.5%, was not a high percentile of the total bid, and, therefore, its forfeiture could not be termed to be "oppressive" or "highly penal in nature" or not "reasonable"---Petitions for leave to appeal were dismissed and leave was refused.

Province of West Pakistan v. Mistri Patel and Co. PLD 1969 SC 80 and Khanzada Muhammad Abdul Haq Khan Khattak and Co. v. WAPDA 1991 SCMR 1436 ref.

Syed Ali Zafar, Advocate Supreme Court, Khurram Raza, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

2019 S C M R 113

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

SECRETARY M/O DEFENCE, GOVERNMENT OF PAKISTAN and others---Petitioners

Versus

GHUFRAN ALI---Respondent

Civil Petition No. 608-K of 2018, decided on 27th July, 2018.

(On appeal against the judgment dated 04.04.2018 passed by the Federal Service Tribunal, Karachi in Appeal No. 113(K)CS/2015)

(a) Civil service---

----Corruption---Removal from service---Confession during inquiry---Plea of duress and pressure for making confessional statement---Respondent was unable to demonstrate from the record that he had made any grievance as to his confessional statement being made under duress and pressure---Award of major penalty of removal from service against the respondent was restored.

(b) Civil service---

----Corruption---Removal from service---Confession during inquiry---Raising technical plea to dispel effect of a confession---Service Tribunal set aside the order of removal of respondent-civil servant and ordered de-novo inquiry in consideration of the fact that the witness who deposed against the respondent during inquiry was not examined in presence of the respondent---Legality---Merely raising a technical question that the witness who deposed against the respondent was not examined may alone not be sufficient to dispel the effect of a confession made by him before the inquiry officer---Service Tribunal had misdirected itself by taking a too lenient view in the matter of corruption (committed by the respondent) in a disciplined force---Petition for leave to appeal was converted into appeal and allowed and impugned judgment of Service Tribunal was set aside.

Asim Mansoor, DAG and A.S.K. Ghori, Advocate-on-Record for Petitioners.

Sanaullah Noor Ghori, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2019 S C M R 116

[Supreme Court of Pakistan]

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

Ms. SHAZIA AKBAR GHALZAI---Petitioner

Versus

KHURRAM MEHBOOB and others---Respondents

Criminal Petition No. 672 of 2018, decided on 14th September, 2018.

(Against judgment dated 20.06.2018 of Islamabad High Court, Islamabad, passed in Criminal Misc. No. 475-H of 2018)

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Recovery of minor---Minor, a suckling baby was forcibly taken away by the father from the lawful custody of his mother within the territorial limits of the relevant High Court---Minor was thereafter moved to different cities in order to evade the process of law---Minor was about one year old and obviously needed his mother to survive---No reason whatsoever had been alleged or pleaded by the father's side that may furnish any justification to deny custody to the real mother and hand him over to the father---Prima facie mother had a right to have custody of the suckling baby---Material and overwhelming factors pointed towards welfare of the minor being best served and protected, if his custody was handed over to the mother---Supreme Court directed that custody of minor shall continue with the mother, subject to any other order passed by a court of competent jurisdiction in appropriate proceedings, however the father may approach the Guardian Court for determination of visitation rights; that appropriate action should be initiated against the father, however the same shall not preclude him from asserting his rights before a Guardian Court in accordance with law, and that the mother shall not remove the minor out of the territorial limits of Pakistan without express permission of a Court of competent jurisdiction---Petition was disposed of accordingly.

Ms. Shireen Imran, Advocate Supreme Court for Petitioner along with Petitioner and Minor.

Respondent No.1 in person along with Mehboob Hussain, Advocate (Father of Respondent No.1).

Tariq M. Jahangiri, AG, IBD, Nawab Khan, SI, Kamran Ali, AIG, IBD and M. Ayub, DSP on Courts Notice.

2019 S C M R 118

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Faisal Arab and Syed Mansoor Ali Shah, JJ

Civil Appeal No. 700 of 2016

(On appeal from judgment of Lahore High Court, Lahore dated 10.12.2014, passed in W.P. No. 2596 of 2014)

and

Civil Petition No. 3832 of 2016

(On appeal from judgment of Lahore High Court, Lahore dated 29.11.2016, passed in W.P. No. 30770 of 2016)

Mian SHAUKAT ALI and another---Appellant/Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeal No. 700 and Civil Petition No. 3832 of 2016, decided on 14th November, 2018.

Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 8(1)---Competitive examination for post of Deputy Prosecutor General---Psychological assessment---Rounding off of marks to next whole number---Permissibility---Maxim expressio unis est exclusious alterius---Scope---Policy Decision No. 19.18 relating to Interviews by the Punjab Public Service Commission (PPSC) specifically provided that average scores of the members of the Interview Committee could be 'rounded off', while Policy Decision No. 19.16 relating to psychological assessment did not expressly provide such concession---Maxim expressio unis est exclusious alterius i.e., the express mention of one thing implies the exclusion of the other thing, was applicable to the present case---Mentioning of rounding off in case of average marks obtained in the interview and the absence of such a concession for the marks obtained in psychological assessment clearly showed that the Punjab Public Service Commission never intended to extend the benefit of rounding off to the marks obtained in psychological assessment---Clear exclusion of rounding off in the case of psychological assessment under the relevant Policy also stood on a logical plane, as a total of only 5 marks were allocated for the psychological assessment, and rounding off, either up or down by a value of 0.5 amounted to 10% change in the total marks---Such change was a sizable percentage and could unfairly bridge the well-earned distinction between competitive candidates and weaken the credibility of the result---Supreme Court observed that any number could be round up to the next whole number or round down to the same whole number, depending on the value being 0.5 or more or less, however, the rule of rounding off, being a rule of convenience, must be applied with caution, so as not to give an unfair advantage to a candidate who had scored low or to disadvantage a candidate who had scored high.

N.S. Bindra's - Interpretation of the Statutes, 10th Edition, p.770 ref.

Malik Muhammad Qayyum, Senior Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. 700 of 2016).

Razzaq A. Mirza, Additional A.-G. for Respondent No. 1 (in C.A. 700 of 2016).

Nemo for Respondent No. 2 (in C.A. 700 of 2016).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 3 and 5 (in C.A. 700 of 2016).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Petitioner (in C.P. 3832 of 2016).

Nemo for Respondents (in C.P. 3832 of 2016).

2019 S C M R 124

[Supreme Court of Pakistan]

Present: Faisal Arab and Ijaz ul Ahsan, JJ

The SECRETARY PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and others---Petitioners

Versus

AAMIR HAYAT and others---Respondents

Civil Petition No. 1058-L of 2018, decided on 27th November, 2018.

(On appeal against the judgment dated 15.02.2018 passed by the Lahore High Court, Lahore in Writ Petition No. 31278 of 2016)

(a) Punjab Public Service Commission Regulations, 2016---

----Regln. 59--- Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court--- Scope--- Merit list--- Discretion of appointing authority to provide substitute candidate from merit list---Scope---Posts of Sub-Inspector---Posts left vacant after recruitment process--- Re-advertisement for posts left vacant--- Legality---Advertisement for recruitment of Sub-Inspectors was published by the petitioner-concerned department in the year 2015---After the requisite test and interview, respondent was placed at Serial No. 32 of the merit list---Last person who was appointed was at Serial No.31 of the merit list---Since the said person did not join, the respondent expected that he would be appointed against the available position---When the respondent was not appointed, he filed a representation and thereafter preferred a constitutional petition before the High Court, which was allowed, it was directed that since the merit list was valid for one year, the respondent should be appointed on the basis of the existing merit list and there was no need for the concerned department to re-advertise the said post---Plea of concerned department that the competent authority could send a request for a substitute candidate and on such request being received a substitute could be recommended by the competent department, however, in the present case since no request was received, the vacant posts were re-advertised---Validity---After completion of appointment process 3 seats from the region of the respondent, and 17 in total remained unfilled, which were re-advertised against the posts of Sub-Inspectors---Re-advertisement process was undertaken in a transparent and fair manner by the competent department, through an open competitive process, a written examination and interview---Persons qualifying in the process and appearing high on the merit list had since been appointed and such process had been repeated for three years---Respondent however did not bother to participate in the process initiated in the subsequent years i.e. 2016, 2017 and 2018, therefore, all posts available during the subsequent years were filled---Under Regln. 59 of the Punjab Public Service Commission Regulations, 2016, a substitute could be provided from the merit list during its validity period, if so requested by the competent authority in its discretion---In the present case, no such request was made---Said exercise of discretion was not withheld unreasonably because a large number of posts had become available and the department wished to re-advertise the posts in order to attract better candidates---Neither mala fides nor ulterior motive were involved and the competent department had valid grounds and lawful justification to opt to re-advertise the posts---High Court exceeded its jurisdiction by issuing a direction to the competent department that an appointment letter be issued to the respondent against post of Sub-Inspector on the basis of merit list---By doing so, the High Court arrogated itself to the position of an appointing authority which was obviously and clearly beyond the scope of its jurisdiction under Art. 199 of the Constitution---Order of the High Court being unsustainable was set aside---Petition for leave to appeal was converted into an appeal and allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Government departmental decisions---Courts could not interfere in lawful exercise of discretion by the concerned departments and substitute lawful decisions of the departments, by their own.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Interference in decisions of State functionaries---Jurisdiction of the High Court under Art. 199 of the Constitution was limited to the extent of ensuring that state functionaries did what they were required by law to do and refrain from doing what they were prohibited by law to do---Unless an act or omission of a state functionary fell within the said parameters it was not liable to be interfered with---Such interference would constitute the High Court overstepping its jurisdiction and entering the domain of the executive which was contrary to the concept of trichotomy of powers as per the scheme of the Constitution.

Tariq Mehmood Butt, AAG, Muhammad Saleem, DSP (Legal) and Muhammad Ashraf, DSP (Legal) for Petitioners.

Mahmood Ahmed Qazi, Advocate Supreme Court for Respondent No.1.

2019 S C M R 129

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Ijaz ul Ahsan, JJ

ABDUL JABBAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 107-L and 108-L of 2012, decided on 20th November, 2018.

(On appeal from the judgment of the Lahore High Court, Lahore dated 05.04.2010 passed in Crl. Appeal No. 1484 of 2004, Murder Reference No. 642 of 2004 and Criminal A. No. 509 of 2005)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Statement of deceased recorded by the police before his death negated the claim of the complainant and an alleged eye-witness regarding their presence at the spot at the relevant time---Name of co-accused was not mentioned by the complainant in the FIR, and his name was first time introduced by the complainant in his supplementary statement recorded by the police---Moreover the deceased in his statement recorded before death did not name the said co-accused---Narration of facts by the eyewitnesses and the deceased himself was not in line with the injuries observed by the doctor on the person of deceased at the time of his medical examination in injured condition---Deceased in his statement recorded by police before his death gave a different version of motive as against the one set out by the prosecution in the FIR---Prosecution had not been able to prove its case against the accused and co-accused beyond reasonable doubt---Appeals were allowed accordingly and accused and co-accused were acquitted of the charge of murder.

(b) Criminal trial---

----Acquittal---Benefit of doubt---Scope---Once a single loophole was observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution case automatically went in favour of an accused.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Gross error by Appellate (High) Court in maintaining conviction of accused persons---When the Appellate (High) Court, after appreciation of entire evidence had reached the conclusion that there was unexplained delay in lodging the FIR; the presence of eye-witnesses was not established; there were irreparable dents in the case of the prosecution; the recovery of weapon and empties was ineffective and of no consequence; the ocular account was belied by the medical evidence; and, the motive behind the occurrence was far from being proved, then the Court fell in gross error in maintaining the conviction of the accused and co-accused particularly on a capital charge---Appeals were allowed accordingly and accused and co-accused were acquitted of the charge of murder.

Gohar Razzaq Awan, Advocate Supreme Court for Appellant along with Appellant in person (in Criminal Appeal No. 107 of 2012).

Nemo for Appellant (in Criminal Appeal No. 108 of 2012).

Syed Sajjad Sarwar Gillani, Advocate Supreme Court for the Complainant.

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

2019 S C M R 137

[Supreme Court of Pakistan]

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

Mian ZIA UR REHMAN and others---Petitioners

Versus

Syed NADIR ALI SHAH and others---Respondents

Civil Petitions Nos. 690 to 692 of 2017, decided on 18th October, 2018.

(Against judgment dated 14.03.2017 of Peshawar High Court, Peshawar, passed in Writ Petitions Nos. 526-A of 2013, 191-A and 240-A of 2014)

Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S. 99(1)(cc) [since repealed]---Disqualification from membership of Parliament---False declaration---Fake educational qualification---Material deviation in educational qualifications mentioned in nomination papers for two different General Elections---Petitioner-candidate contested the General Elections of 2008 wherein he had declared himself to be a Bachelors graduate (BA), however in the subsequent General Elections 2013 the petitioner declared his educational qualification as Matriculation---Petitioner had declared himself as graduate (BA) on the basis of degree (sanad), obtained by him in the year 1996---Further, the religious institution which had allegedly issued him the degree was not amongst the institutions recognized by the Higher Education Commission (HEC) for the purposes of issuing degree---Although the issue at hand emanated from the educational qualifications and requirements of being a graduate stipulated in the Constitution, which stipulation was later on removed from the Constitution, but the same primarily pertained to truthfulness of a candidate and the consequences ensuing after making of a false declaration---Furthermore, the petitioner was asked in open Court qua the legitimacy of the degree allegedly possessed by him, and he was asked simple questions about basic principles of Islam and Hadith, but he was unable to recall the curriculum of the course of study, which left the Court in no manner of doubt that the petitioner had indeed filed false declarations before different fora at different times---High Court had rightly set aside the election of the petitioner as returned candidate on account of making a false declaration---Petition for leave to appeal was dismissed accordingly.

Malik Iqbal Ahmed Langrial v. Jamshed Alam PLD 2013 SC 179 and Mian Najeeb ud Din Owasi v. Amir Yar Waran PLD 2013 SC 482 ref.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners.

Syed Iftikhar H. Gillani, Senior Advocate Supreme Court and Nadeem A. Sheikh, Advocate Supreme Court for Respondents.

Raja Abdul Ghafoor, Advocate-on-Record for HEC.

M. Arshad, DG, Law for ECP.

2019 S C M R 142

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

MUHAMMAD SALEEM---Petitioner

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and others---Respondents

Civil Petition No. 605-K of 2017, decided on 26th July, 2018.

(Against the Judgment dated 15.08.2017 passed by the High Court of Sindh at Karachi in Constitutional Petition No. D-1919 of 2016)

Employer-employee---

----Salary realized even after retirement retained by employee in the garb of an ad interim order of the court---Employee could not be allowed to retain the benefit of his own wrong and could not seek protection behind an order of the Court.

Sanaullah Noor Ghouri, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Asim Iqbal, Advocate Supreme Court for Respondents.

2019 S C M R 158

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Munib Akhtar, JJ

DEWAN KHALID TEXTILE MILLS LTD.---Appellant

Versus

COMMISSIONER OF INCOME TAX (LEGAL DIVISION), LARGE TAXPAYERS UNIT, KARACHI---Respondent

Civil Appeals Nos. 457 and 458 of 2010, decided on 7th December, 2018.

(On appeal from the order dated 9.3.2010 passed by the High Court of Sindh, Karachi in ITC Nos. 200 and 201 of 2003)

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

----S. 65(2)---Additional assessment---"Definite information"---Scope---Judgment of a Superior Court (available at the relevant time) could, in appropriate circumstances, constitute "definite information" in relation to the facts of a case.

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

----S. 65(2)---Additional assessment---"Definite information"---Scope---Mere change of opinion by the tax authorities did not constitute "definite information"---If the concerned authority such as an Income Tax Officer, acting on his own or under instructions from superior officers, subsequently came to a different conclusion with regard to the proper applicability or interpretation of a statutory provision that was a mere change of opinion and not "definite information".

EFU General Insurance Company v. Federation of Pakistan and others PLD 1997 SC 700 ref.

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

----Ss. 65(2) & 80B---Additional assessment---"Definite information"---Scope---Judgment of the Supreme Court as 'definite information'---Appellant-company filed its return for the relevant assessment year but thereafter (before the assessment was framed) filed a revised return---Reason for the revised return was that the appellant claimed that in respect of "interest or profit on which the tax deductible under subsection (2-A) of S. 50" of the Income Tax Ordinanxe, 1979 ("Ordinance"), it was liable to be taxed in terms of S. 80B of the said Ordinance---Income Tax Officer accepted said claim of appellant, and the said amounts were taxed accordingly---However, subsequently, by a notice issued under S. 65 of the Ordinance, Income Tax Officer sought to reopen the assessment on the ground that the appellant was not so entitled--- Revised assessment order, adverse to the appellant, was made---Appellant contended that action under S. 65 of the Ordinance could only be taken if there existed any "definite information" for reopening the assessment, and that no such information existed in the facts and circumstances of the case---Appellate Tribunal accepted such contention of the appellant, however, the High Court found that the "definite information" was available with the Income Tax Officer in the form of a judgment of the Supreme Court and hence found against the appellant---Legality---High Court erroneously relied on a judgment of the Supreme Court, without appreciating that the said judgment was rendered many years after the initiation of action under S. 65 of the Ordinance against the appellant---Since the judgment did not exist at the relevant time it could not ipso facto constitute "definite information" within the meaning of law that would have made it permissible for the Income Tax Officer to reopen the assessment---Judgment of the High Court was set aside in circumstances and that of the Appellate Tribunal was restored---Appeal was allowed accordingly.

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

----Ss. 2(32) & 80B(1)---Tax on income of certain persons from dividends and bank profits, etc.---Concession under S. 80B of the Income Tax Ordinance, 1979 was available to a company as well---High Court observed that all material statutory provisions were not brought to the notice of the Supreme Court in the case of Genertech Pakistan Ltd. and others v. Income Tax Appellate Tribunal of Pakistan and others 2004 SCMR 1319, therefore the observations made in (paragraph 13) of the said judgment with respect to S. 80B of the Ordinance may be open to doubt.

Genertech Pakistan Ltd. and others v. Income Tax Appellate Tribunal of Pakistan and others 2004 SCMR 1319 held to be open to doubt.

Salman Pasha, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (Absent) for Appellant (in both cases).

Dr. Farhat Zafar, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Abdul Hameed, Secretary Legal, FBR for Respondent.

2019 S C M R 221

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J.,Ijaz ul Ahsan and Sajjad Ali Shah, JJ

CIVIL REVIEW PETITIONS NOS.412 AND 413 OF 2014 IN CIVIL APPEALS NOS.1223 AND 1224 OF 2014

(On review of this Court's order dated 23.9.2014 passed in C.As.Nos.1223 and 1224/2014)

AND

CIVIL APPEALS NOS.1223 AND 1224 OF 2014

(Against the judgments dated 23.10.2012 of the Lahore High Court, Lahore passed in W.P. No.3053/2012)

AND

CIVIL PETITIONS NOS.2061 AND 2189 OF 2014

(Against the judgments dated 8.7.2014/2.10.2014 of the Lahore High Court, Lahore passed in C.M. No.1/2014 in W.P. No.19769/2014 and W.P. No.19769/2014)

PAKISTAN OLYMPIC ASSOCIATION through President and others---Petitioners

Versus

NADEEM AFTAB SINDHU and others---Respondents

Civil Review Petitions Nos. 412, 413 of 2014 in Civil Appeals Nos.1223, 1224 of 2014 and Civil Appeals Nos. 1223, 1224 and Civil Petitions Nos. 2061 and 2189 of 2014, decided on 1st January, 2019.

(a) Constitution of Pakistan---

----Arts.199(1)(a) & 199(5)---Constitutional petition---Maintainability---Function test---Scope---Pakistan Olympic Association ("Association")---Question as to whether the Association was a 'person' performing public functions in connection with the affairs of the Federation under Art. 199 of the Constitution---Association organized National Games, represented Pakistan at international sporting events, scrutinised, approved, and guaranteed the candidature of any city or organisation applying for staging international sporting events, and was also responsible for the promotion and development of sports in Pakistan---None of the said functions involved the exercise of sovereign power or public power, and did not constitute a function or duty of the State---Although athletes selected by the Association represented the flag of Pakistan, but it was important to note that it was not exclusively state managed organisation who may bear the flag of Pakistan or incorporate it into their identity---No functions of the State involving sovereign or public power were being exercised by the Association---Federal Government approved the selection of contingents and gave its consent to the Association representing Pakistan at international events, but the same did not amount to executive control---Federal Government did not exercise decision making authority even if the Pakistan Sports Board was involved in scrutinising and approving teams---As per paragraph No.19 of the Aims and Objectives provided in the Association's own Constitution, "its autonomy, dignity and independence in accordance with the Olympic Charter" was not to be compromised, hence, the Federal Government did not exercise substantial control on, or have dominance in the controlling affairs of the Association---Furthermore, the Federal Government did provide funding to defray the costs of sending contingents to the Olympics, however the private activities and other management of the organization was funded by the Association itself---Overall activities of the organization were independent and the bulk of the activities carried out were privately funded---Single activity/undertaking was funded by the Federal government (i.e. sending teams to the Olympics) and while it was an expensive undertaking, it was only part of what the Association did---Most importantly, no financial interest of the State laid in the functions of the Association---Association did not satisfy the function test and therefore, was not a person exercising functions in connection with the affairs of the Federation in terms of Art.199(1)(a)(i) & (ii) of the Constitution---No writ of quo warranto could therefore lie against its office holders, nor could a writ lie against the Association in terms of Art. 199(1)(a) of the Constitution.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

(b) Constitution of Pakistan---

----Arts. 199(1)(c) & 199(5)---Constitutional petition filed against any person including "body politic or corporate"---Maintainability---Constitutional petition was maintainable under Art. 199(1)(c) of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution---Amplitude of Art.199(1)(c) was wider than the other parts of Art. 199 of the Constitution and was not restricted to public functionaries only but could extend to private parties, as long as there was a question of enforcement of Fundamental Rights under the Constitution.

Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507 ref.

(c) Pakistan Olympic Association Election Rules, 2012---

----R. 37---Constitution of Pakistan, Art. 199---Pakistan Olympic Association (Association)---Elections, method of---Elections not held through secret ballot but instead through a show of hands---Constitutional petition filed against the Association challenging the method of elections---Maintainability---Body such as the Association which was operating independently and was admittedly not being substantially controlled by either the Federal or Provincial Government or any other governmental body and considering the fact that the method of elections for certain posts of the Association, did not involve a violation of any of the Fundamental Rights, the internal functions of the Association could not, in the facts and circumstances, be subjected to judicial review under Art. 199 of the Constitution---Constitutional petition was not maintainable against the Association under Art.199(1)(c) of the Constitution.

Muhammad Ahmed Qayyum, Advocate Supreme Court on behalf of Malik Muhammad Qayyum, Senior Advocate Supreme Court for Petitioners/Appellants (in C.R.Ps. Nos. 412, 413/2014 and C.P. No.2189 of 2014).

Muhammad Ali Raza, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioners/Appellants (in C.A. No. 1223 of 2014).

Kh. Haris Ahmed, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners/Appellants (in C.A. No.1224 of 2014)

Muhammad Munir Paracha, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Petitioners/Appellants (in C.P. No.2061 of 2014).

Muhammad Ali Raza, Advocate Supreme Court for Respondent No.5 (in C.R.P. No. 412 of 2014).

Muhammad Ali Raza, Advocate Supreme Court for Respondent No.26 (in C.R.P. No. 413 of 2014).

Muhammad Ali Raza, Advocate Supreme Court for Respondent No.4 (in C.A. No. 1224 of 2014).

Sohail Mahmood, DAG and Qasim Ali Chohan, Additional A.G. Punjab on Court's Notice.

2019 S C M R 233

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Maqbool Baqar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman and another---Petitioners

Versus

MUHAMMAD SAJID and others---Respondents

Civil Petitions Nos. 2702-2704, 3115-3118 and 3879 of 2018, decided on 13th December, 2018.

(Against the judgments dated 14.05.2018, 29.05.2018, 12.09.2018 of the Lahore High Court, Multan Bench passed in I.C.As. Nos. 149, 150, 186, 196, 187, 188, 189 and 190 of 2018)

Civil service---

----Daily wage workers/contract employees of Board of Intermediate and Secondary Education---Regularization in service---Artificial breaks in service period by re-employing workers after every 89 days---Respondents (daily wage workers) had been working with the petitioner-Board since long, however, in an attempt to break the continuity of their service, the Board had been employing them for 89 days only, and re-hired them for the next 89 days, and thus continued to avail their service for a long period by creating artificial breaks in their service period---Fact that the respondents had continuously served the Board for a long period of time, albeit the breaks created by Board clearly showed that they had been performing job of permanent nature and had not been serving on casual posts---Admittedly, similarly placed employees of Boards of other cities had been regularized in pursuance of orders of the High Court, which were upheld by the Supreme Court---Respondents were rightly found eligible and entitled for regularization of their service with the Board by the High Court---Petitions for leave to appeal were dismissed accordingly.

Civil Petition No. 2509 of 2006, Judgment dated 7th March, 2018 ref.

Shakeel Javed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Respondent No.1 in person (in C.P. 2702 of 2018).

Nemo for Respondent No.1 (in C.P. 2703 of 2018).

Malik Noor Muhammad Awan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos. 1-30 (in C.P. No. 2704 of 2018).

Abdul Razzaq Mirza, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3115 and 3118 of 2018).

Tanveer Iqbal, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3116 and 3117 of 2018).

Nemo for Respondents (in C.P. No. 3879 of 2018).

2019 S C M R 235

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

OXFORD UNIVERSITY PRESS---Petitioner/Appellant

Versus

COMMISSIONER OF INCOME TAX, COMPANIES ZONE-I, KARACHI and others---Respondents

Civil Appeals Nos.308 to 326, 572 of 2008 and C.Ps. Nos. 1681 to 1683 of 2012, decided on 17th October, 2018.

(On appeal from the orders dated 19.4.2007, 5.6.2008 and 18.9.2017 passed by the High Court of Sindh, Karachi in ITRs Nos.228/88, 453, 472, 534/90, 04, 46/96, 241 and 398/97, ITAs Nos.248 to 253/99, ITCs Nos.280, 281, 282/2003, 496, 487 of 2004, C.P. 655 of 2008 and ITRs. Nos.181-182 of 2017)

(a) Interpretation of statutes---

----Fiscal statute---Exemption clause---Application and interpretation---Firstly, onus laid on the taxpayer to show that his case came within the exemption; secondly, if two reasonable interpretations were possible the one against the taxpayer would be adopted; thirdly, if the taxpayer's case came fairly within the scope of the exemption then he could not be denied the benefit of the same on the basis of any supposed intention to the contrary of the legislature or authority granting it.

(b) Income Tax Ordinance (XLIX of 2001)---

----Second Sched., Pt. 1, Cl. 92 [since omitted]---Income Tax Ordinance (XXXI of 1979) [since repealed], Second Sched, Pt. 1, Cl. 86---Exemption from tax---Scope---University or other educational institution established solely for educational purposes and not for purposes of profit---Publishing press of a foreign university (Oxford University Press) operating in Pakistan---High Court found that the publishing press/assessee was not entitled to exemption from tax under Cl. 86, Part 1 of Second Schedule to the Income Tax Ordinance, 1979 ("Clause 86") for the reasons that "in Pakistan", it was not engaged solely in imparting education, which was one of the primary requirement for availing the benefit of Cl. 86, and further it had failed to prove that the income earned by it through its business of printing, publication and sale of books or otherwise, was solely used for educational purposes "in Pakistan"---Held, that the High Court had laid a great deal of emphasis on the fact that for claiming exemption the university must be carrying out educational activities "in Pakistan"---Perusal of the Cl. 86 showed that the words "in Pakistan" were not to be found therein---High Court erred materially in introducing an element or requirement for claiming exemption that found no mention in Cl. 86---Publishing press/assessee in question was a branch/department of a foreign university, and hence came within the meaning of "university"---Furthermore there was no distribution or disbursement of profits made by the assessee---Even if during some of the income years the profits (or part thereof) were remitted abroad to the foreign university, there was no distribution or disbursement thereof---Purpose therefore throughout remained solely educational and not profit, thus the publishing press/assessee was entitled to the benefit of Cl. 86 for all of the assessment years concerned---Impugned judgment of High Court was set aside in circumstances.

Oxford University Press v. Commissioner of Income Tax 2007 PTD 1533 not approved.

Oxford University Press v. Commissioner of Income Tax (2001) 247 ITR 658 not to be followed.

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

----Second Sched., Pt. 1, Cl. 86---Exemption from tax---Essential elements/components of Clause 86, Part 1 of Second Schedule to the Income Tax Ordinance, 1979 ("Clause 86")---Clause 86 comprised of three components (i) any income; (ii) of any university or other educational institution; (iii) established solely for educational purposes and not for purposes of profit---First component meant precisely what it said i.e. "any income" from whatsoever source derived---Any distinction between income derived from "educational" activities on the one hand and other sources, including what in other contexts could be regarded as commercial, on the other would be artificial, contrived and contrary to the express and natural language of the exemption---For instance, it was quite common for a university to derive rental income from properties owned by it, or to have an endowment fund which was suitably invested to earn profits---Second component was self-explanatory and included a branch/department of a university, such as its publication press---Third component had to be read and applied as a whole---Use of the word "solely", and the negation of profit as a purpose in the third component, meant simply that there could be no distribution or disbursement of any profits made---If the purpose of the university or educational institution was to "earn" a profit for its owners or stakeholders (howsoever described) in the sense of there being an intention or expectation that there would be such a disbursement, then exemption from tax under Cl. 86 would not apply---Such an institution could not be said to be established "solely" for educational purposes---On the other hand, the institution could make profits, but as long as those profits remained with the institution itself and there was no intention to disburse or distribute the same to its owners or stakeholders, profits would not be its purpose, which would remain "solely" educational.

Muhammad Mukhdoom Ali Khan, Senior Advocate Supreme Court for Petitioner/Appellant (in all cases).

Syed Mohsin Imam, Advocate Supreme Court along with Dr. Tariq Masood, Member Legal (FBR) for Respondents (in all cases).

Aamir Rehman, Assistant Attorney General for Pakistan for the Federation.

2019 S C M R 247

[Supreme Court of Pakistan]

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

HUMAN RIGHTS CASE NO. 17599 OF 2018: In the matter of

Human Rights Case No. 17599 of 2018, decided on 3rd January, 2019.

(Regarding alarming high population growth rate in the country)

(a) Constitution of Pakistan---

----Arts. 4, 9, 10-A, 25, 25-A, 19, 19-A, 37 & 38---Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 1968, Pp. 16 & 17---Human rights case---High population growth rate in Pakistan---Consequences---Poverty---Unskilled and unemployed manpower---High maternal and child mortality rate---Low literacy and educational enrolment---Lack of access to clean water and adequate food---Problems caused by Pakistan's alarmingly high population growth rate highlighted by the Supreme Court.

Supreme Court highlighted the following problems caused by the alarmingly high population growth rate of Pakistan:

Pakistan was ranked as the fifth most populous nation in the world, with a population of over 200 million (as of 2017). While all nations and economies relied on population growth and a creation of future younger generations, such growth must be sustainable and proportionate to the resources available. Approximately 14,000 babies were born in Pakistan (every day) which was already struggling to feed, educate and provide employment for its existing population. Pakistan had experienced unchecked population growth since its creation in 1947. From 1998 to 2017, Pakistan's population had increased by 57%, with the addition of approximately 76 million people to the population. Projected growth trends from the United Nations suggested that if this population growth rate did not slow considerably, Pakistan could expect to have its population increase by 50% resulting in an estimated 306 million people, to become the world's third largest country in terms of population. Steadily increasing population rate was a ticking bomb. What would follow this population explosion was starvation, famine and poverty, the likes of which were already visible in some areas of the country. Other indicators of overstretched resources and infrastructure were apparent in the country's unemployment rate, maternal and child mortality rate, literacy and educational enrolment figures, and access to clean water and adequate food.

According to paragraphs 16 and 17 of the Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 1968, (of which Pakistan was a signatory), the right to freely and responsibly determine the number and spacing of children involved imparting sufficient information and means to the parents to control reproduction as well as providing them with adequate knowledge regarding the advantages and disadvantages of such determination. Also apparent from the said paragraphs was the interdependence of planned births with the right of the younger generation to be afforded all fundamental and human rights recognised by the international community. Right to well-informed and controlled pregnancies was, thus, a right that paved the path for enabling several other rights. This right, which formed part of the international commitments of Pakistan, originated from the right to life under Article 9 of the Constitution, and other fundamental rights such as the right to education, equality, speech, information and due process (Articles 4, 25, 25-A, 19, 19-A and 10-A of the Constitution respectively), which were in turn inevitably linked to the economic progress of the State expected to make such rights available to its people. By failing to prioritise the provision of information and means of controlling unplanned and unwanted births, the country faced a surplus of unskilled and unemployed manpower for whom basic human and fundamental rights were luxuries they could at best only hope for, but never attain.

Perusal of data from the annual Demographic and Health Survey revealed a number of preconceived notions, obstacles and misconceptions regarding family planning, family size, childbearing and religious instructions regarding birth control and spacing pregnancies. Effective family planning policy was an achievable goal even in spite of cultural, societal, or religious hesitance.

If resources were not increased by rationing the amount of births burdening the economy each year, the working population age would either be unemployed or due to lack of education and skill training would be working in unskilled and menial jobs.

Right to life and several other rights were meaningless if owing to over population, people were deprived of basic amenities such as food, water etc. Even otherwise, being one of the most populated countries in the world, Pakistan needed to realise its responsibility and play its role in curbing its uncontrolled and unplanned population before starvation, malnutrition, illiteracy, poverty and unemployment became the fate of a large segment of its population.

(b) Constitution of Pakistan---

----Arts.4, 9, 10-A, 25, 25-A, 19, 19-A, 37 & 38---Human rights case---High population growth rate in Pakistan---Population control campaign---Family planning---Access to contraceptives---Awareness amongst men and women---Unison effort by policymakers, legislators, care providers, civil society activists and religious scholars---Free airtime for family planning messages on all radio and television channels---Education and technical training for the working age population---Recommendations provided by the Supreme Court and a Committee formed on its directions for managing the high population growth rate of Pakistan detailed.

Following are the recommendations provided by the Supreme Court and a Committee formed on its directions for managing the high population growth rate of Pakistan:

Foremost task should be the meeting of demand of contraceptives and making them easily assessible to people while increasing the awareness with regards to the need of contraceptives. Moreover, the best global practices in family planning must be adopted including modern tested and effective methods in addition to a contraceptive mix method which has proven to be effective in many countries. Global evidence also supported task sharing/shifting strategies which should be quickly rolled out in Pakistan to enable mid-level and community-based service providers to provide services to rural, peri-urban and urban poor communities. Resort had to be made to reproductive health programming which involved the participation of men in contraceptive use and supporting women for use of contraception, Subscribing to family planning methods would benefit the country in the form of a higher GDP per capita and reduced unemployment; it would increase health benefits including reduced maternal mortality, improved infant and child health and fewer abortions, which in turn would lead to greater freedom to determine the number and spacing of children; it would lead to environmental benefits including reduced pressure on natural resources (water, agriculture, energy, etc.) as well as reduced air water and soil pollution; and it would also result in increased resources per capita for schooling and healthcare sectors and infrastructure.

In order to ensure that the working age population was productively employed, a drastic decline in the population was required which must be supplemented with an education 'emergency' whereby education and technical training for the working age population was provided targeting both genders equally. Additionally, strong policy reforms were required centred on capturing the demographic dividend. The total fertility rate (TFR) must be reduced to a sustainable rate. National action plan was required to be introduced in order to train human resource and match skills to the available work opportunities, and ensure an increase in work opportunities for women so as to increase the source of income of each familial house.

Coordination must be strengthened at all levels starting from the existing fora which included the Country Engagement Working Group (CEWG), Provincial FP2020 Working Groups, Family Planning Donor and Reproductive Health working groups, civil society organisations and the private sector working for the cause of population planning.

On directions of the Supreme Court, a Task Force and subsequently a Committee was constituted, which submitted a comprehensive report in which "Recommendations" had been made to curb the alarming population growth rate in Pakistan. Said Recommendations were later approved by the Council of Common Interest (CCI). Said Recommendations involved increasing the demand and utilization of contraceptives for which a mass movement was suggested taking on board political leaders, Ulema and clerics, the corporate sector, academia, executive, judiciary, media, intelligential and youth. The Ulema and Islamic scholars must also be urged to promote Islamic teachings in the context of controlled birth so that each child may be assured an enlightened and prosperous life. For this national cause, the Pakistan Electronic Media and Regulatory Authority (PEMRA) should allocate free airtime for family planning messages on all radio and television channels in prime time. Recommendations of the Committee were expected to accelerate government efforts to reduce the population growth rate, lower the total fertility rate, and increase the contraceptive prevalence rate. These Recommendations which were aligned with provincial population policies and recognized the Federal Government's role in fostering, coordinating, and facilitating national progress, specified clear priorities, roles and responsibilities, and timelines for action. Adopting a community-based approach, these Recommendations included the mandatory delivery of family planning services by all public health facilities and hospitals, as part of the essential service package, as well as the mandatory provision of family planning counselling, information and services by all registered private sector practitioners and hospitals. After thorough training the lady health workers and the current cadre of male mobilizers were suggested to be reactivated targeting the women and men of each family and ensuring active and accountable counselling for them. More crucially, it had been recommended that Federal and Provincial Governments introduce conditional cash transfer schemes for adoption of family planning services and institutionalised birth delivery and financial support programs which should be linked with population planning initiatives. Moreover, it had been recommended that the Pakistan Medical and Dental Council (PMDC) and the Pakistan Nursing Council (PNC) should include mandatory modules on Family Planning and Reproductive Health. Obviously, the general cooperation of NGOs and civil society was also expected and requested for this national cause. The Federal and Provincial Governments should also consider incentivising the local production of contraceptives by investors and pharmaceutical companies to increase their supply and accessibility and consider pooled procurement of contraceptives. The executive must play an active role in ensuring effective implementation of such laws. The Federal and Provincial Governments agreed to allocate a sustainable amount of funds for this urgent cause, which would be a commitment that they must stick to in order to achieve any success in this population control campaign. All that remained was for stakeholders at all levels to translate the Recommendations of the Committee into urgent action. Immediate action by all pillars of the State and the public at large was not only the need of the hour, it was now a question of survival and thus must commence without any delay.

Population explosion could only be overcome if we stood against it together as one; if we successfully convinced the common man that our limited resources could not feed more than two children per house; if we accepted that required transformative investments in human development could only be made if our hands were not tied by severe economic constraints and depleting resources; if we admitted that the ratio of mouths to feed had long outweighed our resources; if all stakeholders, including policymakers, legislators, care providers, civil society activists and religious scholars, played their roles in unison to support responsible parenthood behaviours in our society; and if we could convince ourselves that population planning was not a plan for the future, but a remedial step that had already been taken too late: only then could we diffuse the ticking bomb of population growth.

(c) Constitution of Pakistan---

----Arts. 9 & 38---Right to life---Scope---Economic prosperity was a sine qua non for the implementation of all fundamental rights, the paramount right being that of life.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(d) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Article 9 of the Constitution did not merely protect the right to 'exist' or 'live' but embodied the right to live a meaningful life with a minimum standard of living---Right to life included a right to basic amenities and living standard, right to livelihood, right to a safe and health-friendly environment, right to provision of electricity and gas, and access to clean drinking water etc.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Suo Motu Case No.19 of 2016 2017 SCMR 683; Pir Imran Sajid and others v. Managing Director/General Manager (Manger Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Barrister Zafarullah Khan v. Federation of Pakistan 2018 SCMR 2001; 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; 2011 SCMR 73; Shahab Utso v. Government of Sindh through Chief Secretary and others 2017 SCMR 732; OGRA through Secretary v. Midway II, CNG Station 2014 SCMR 220; Iqbal Zafar Jhagra and Senator Rukhsana Zuberi v. Federation of Pakistan PTD 2014 243; Younas Abbas v. Additional Sessions Judge, Chakwal PLD 2016 SC 581 and National Engineering Services Pakistan [NESPAK] (Pvt.) Limited v. Kamil Khan Mumtaz 2018 SCMR 211 ref.

(e) Constitution of Pakistan---

----Arts.4, 9, 10-A, 25, 25-A, 19, 19-A, 37 & 38---Human rights case---High population growth rate in Pakistan---History of family planning programmes initiated in Pakistan stated.

(f) Constitution of Pakistan---

----Arts.4, 9, 10-A, 25, 25-A, 19, 19-A, 37 & 38---Human rights case---High population growth rate in Pakistan---Overview of efforts made by countries such as Iran, Bangladesh, India and China for population control and planning and the role of their legislature, executive, judiciary, public functionaries and other stakeholders in this task recorded.

Javed and others v. State of Haryana and others 2003 (8) SCC 369; Air India v. Nergesh Meerza and others (1981) 4 SCC 335; Ramakant Rai v. Union of India and others 2009 (16) SCC 565 and Devika Biswas v. Union of India (UOI) and others 2016 (10) SCC 726 ref.

Anwar Mansoor Khan, Attorney General, Syed Nayab Hassan Gardezi, DAG, Tariq Mehmood Jehangiri, A.G. Islamabad, Sibtain Mehmood, AAG, Sindh, Zahid Yousaf Qureshi, Addl. A.G. KP, Ayaz Swati, Addl.A.G. Balochistan, Qasim Ali Chowhan, Addl. A.G. Punjab, Cap. Retd. Zahid Saeed, Secretary M/o NHS&RC, Imran Gichki, Secy. Population Balochistan, Abdul Ghaffar, D.G. Population Welfare Department, Government of Pakistan, Asghar Ali, Secy. Population, KP, Fazal Nabi Khan, DG, PW, KPK, Muhammad Jahangir for PBS, ILD and Muhammad Riaz for PBS, ILD in attendance.

2019 S C M R 274

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

ALTAF HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 62-L of 2018, decided on 27th November, 2018.

(On appeal from the judgment of the Lahore High Court, Lahore dated 27.05.2015 passed in Crl. Appeal No. 1543 of 2010, Crl. Revision No. 277 of 2013 and PSLA No. 7 of 2013)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Delay in reporting matter to police and lodging of FIR---Present case was registered under the orders of the Justice of the Peace on 19.03.2006 regarding an occurrence alleged to have taken place on 09.02.2006 and as such there was a delay of forty days in reporting the crime to the police without any plausible explanation---Complainant stated in his examination-in-chief that they reported the matter to the police repeatedly but the case was not registered, however, such assertion was not substantiated by any document---Deceased was medically examined in injured condition through police on 9.2.2006 i.e. the date of occurrence, therefore, the inordinate delay in setting the machinery of law in motion spoke volumes against the veracity of prosecution version---Doctor who had examined the deceased was not produced before the court---Motive behind the occurrence and alleged recovery of a dagger at the instance of the accused were not believed by the courts below for valid reasons---Besides the accused three other co-accused persons were also indicted in the case, who were acquitted by the Trial Court and appellate court and their acquittal had attained finality---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and the accused was acquitted of the charge framed against him.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Presence of eye-witnesses at the scene of occurrence doubtful---Ocular account of the incident was furnished by the complainant and another eye-witness, however, perusal of statement made by deceased before his death did not disclose their presence at the scene of occurrence, therefore, it was highly unsafe to rely on the statements of both these witnesses to maintain conviction and sentence of the accused on a capital charge---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and the accused was acquitted of the charge framed against him.

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

----S. 302(b)---Qatl-i-amd---Witnesses, reliance upon---Scope---When a set of witnesses was disbelieved to the extent of some accused the same could not be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration.

Shahid Azeem, Advocate Supreme Court and Naveed Ahmad Khawaja, Advocate Supreme Court for Appellant.

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

Mst. Murid Fatima mother of the deceased and wife of the Complainant in person.

2019 S C M R 278

[Supreme Court of Pakistan]

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

PAKISTAN AIRLINE PILOTS ASSOCIATION and others---Appellants

Versus

PAKISTAN INTERNATIONAL AIRLINE and another---Respondents

Civil Appeal No. 585 of 2018, decided on 16th January, 2019.

(On appeal against the judgment dated 23.09.2016 passed by the High Court of Sindh, Karachi in C.P. No. D-2353/2014)

(a) Pakistan International Airlines Corporation (Conversion) Act (XV of 2016)---

----S. 3(6)--- Retired pilots of Pakistan International Airlines Corporation---Pension---Method of calculation---Last salary drawn---Pension of appellants (retired pilots of Pakistan International Airlines Corporation) was initially calculated in accordance with the formula articulated in a Trust Deed of 1980 known as the "PIA PALPA FENA Pension Fund"---Subsequently in the year 1981, the Martial Law Regulation No. 52 rescinded the said Trust Deed, and pension benefits were calculated first under a pension scheme of 1982 then under a supplemental trust deed called PFF Rules of 1988 which were followed by Admin Order 34 of 2003 and finally under Admin Order No. 08 of 2004---Appellants who retired in the years 2008, 2009 and 2014 were now seeking calculation of retirement benefits on the basis of Trust Deed of 1980 that stood rescinded in 1981---Admin Order No. 34 of 2003 stated that pension, commutation and gratuity shall be calculated on the basis of the salary frozen on 31.12.2002 without taking into consideration future annual increments thereby resulting in the salary component to become stagnant as its effect was that no matter how much the salary increased after 31.12.2002 the pension was to be calculated on the salary drawn on 31.12.2002---Such anomaly so created was, however, reversed by the Pakistan International Airlines through Circular No.21/2003 issued on 31.07.2003 which provided that future revision in pension shall be linked with last drawn salary---Grievance of appellants that pension was not being calculated on last drawn salary also stood redressed in 2003---Supreme Court held that appellants/retired pilots shall be entitled to the pension on the basis of the last drawn salary which they were getting at the time of their retirement---Appeal was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Master-servant relationship---Non-statutory rules---Where conditions of service of employees were not regulated by a statutory provision then such employees were to be governed by the principle of "Master and Servant"---Where the terms and conditions of employment were not governed by any statutory provision and the employees were amenable to the Rule of "Master and Servant", Art. 199 of the Constitution of Pakistan could not be invoked.

PIA Corporation v. Syed Suleman Alam Rizvi 1996 SCMR 1185; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

Barrister Umaima Anwar Khan, Advocate (with Court permission) for Appellants.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondents.

2019 S C M R 282

[Supreme Court of Pakistan]

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

Messrs PAKISTAN TELEVISION CORPORATION LIMITED---Appellant

Versus

COMMISSIONER INLAND REVENUE (LEGAL) LTU, ISLAMABAD and others---Respondents

Civil Appeal No. 1509 of 2016, decided on 23rd October, 2018.

(Against the judgment dated 29.3.2016 of the Islamabad High Court Islamabad passed in S.T.R. No. 27 of 2012)

(a) Federal Excise Act (VII of 2005)---

----S. 3 & First Sched.---Customs Act (IV of 1969), First Sched.---Fiscal statute---Statutory provisions, amendment of---Section 3 and the First Schedule to the Federal Excise Act, 2005 as well as the First Schedule to the Customs Act, 1969 were statutory provisions---Such provisions could only be amended by an Act of Parliament---Delegated legislation such as a Statutory Regulatory Order (SRO) could not amend the same.

(b) Interpretation of statutes---

----Fiscal/taxation statute---Charging provision---Scope---Provision providing for a mode of collection was not a charging provision; it could neither abridge nor expand the scope of a charging provision in an Act.

(c) Federal Excise Act (VII of 2005)---

----Ss. 2(23), 3 & 16 & First Sched., Table II---Customs Act (IV of 1969), First Sched. [Pakistan Customs Tariff (PCT), Chapt. 98]---Services---Federal excise duty, payment of---Exemption---Scope---All services provided in Pakistan were exempt from Federal Excise Duty unless specified in the First Schedule to the Federal Excise Act, 2005 read with Chapter 98 of the Pakistan Customs Tariff (PCT)---First Schedule to the Federal Excise Act, 2005 was not to be read in isolation, rather had to be read with Chapter 98 of the PCT---Even an activity within the definition of "services" under S. 2(23) of the Act was exempt from Federal Excise Duty unless specified in the First Schedule---Assessee, therefore, did not have to apply under S. 16 of the Act for exemption--- Services provided by the assessee were exempt if not specified in the First Schedule to the Federal Excise Act, 2005.

(d) Federal Excise Act (VII of 2005)---

----Ss. 2(23), 3 & First Sched., Table II---Customs Act (IV of 1969), First Sched. [Pakistan Customs Tariff (PCT), Heading 98.12]---Wireless Telegraphy Act (XVII of 1933), S. 3---Television Receiving Apparatus (Possession and Licensing) Rules, 1970, Rr. 2(e) & 3(3)---TV license fee recovered by Pakistan Television Corporation Ltd. (PTV)---Federal excise duty, payment of---Exemption---Telecasts, TV sets and TV license fee were not covered by the definition of "services" in S. 2(23) of the Federal Excise Act, 2005 and Item 6 of Table II of the First Schedule to the said Act read with Chapter 98 of the Pakistan Customs Tariff (PCT)---TV license fee, telecasts and TV sets not being covered by any of the subheadings of PCT Heading 98.12 were not subject to Federal Excise Duty on a reasonable interpretation of the law---Pakistan Television Corporation Ltd. (PTV) was exempt from payment of Federal Excise Duty on TV license fee---Moreover the Wireless Telegraphy Act, 1933 and the Television Receiving Apparatus (Possession and Licensing) Rules, 1970, made the Parliamentary intention clear, i.e. the license fee was paid not for any service provided by PTV but by the holder of the TV set for its possession---Taxable event was not the provision of any service by PTV; it was the possession of a television set by the holder---TV license fee not being the product of any service provided by PTV, Federal Excise Duty could not be levied on it---Appeal was allowed accordingly.

(e) Interpretation of statutes---

----Fiscal statute---Principles of interpretation of stated.

Following are the principles with regard to interpretation of a fiscal statute:

(i) There was no intendment or equity about tax and the provisions of a taxing statute must be applied as they stood;

(ii) The provision creating a tax liability must be interpreted strictly in favour of the taxpayer and against the revenue authorities;

(iii) Any doubts arising from the interpretation of a fiscal provision must be resolved in favour of the taxpayer;

(iv) If two reasonable interpretations were possible, the one favoring the taxpayer must be adopted;

(v) When a tax was clearly imposed by a statutory provision any exemption from it must be clearly expressed in the statute or clearly implied from it;

(vi) Where the taxpayer claimed the benefit of an express or implied exemption, the burden was on him to establish that his case was covered by the exemption;

(vii) The terms of the exemption ought to be reasonably construed; and

(viii) If a taxpayer was entitled to an exemption on a reasonable construction of the law it ought not to be denied to him by a strained, strict or convoluted interpretation of the law. [p. 297] F

M. Makhdoom Ali Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Dr. Farhat Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

2019 S C M R 301

[Supreme Court of Pakistan]

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

MAJEED alias MAJEEDI and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 105-L of 2017, Criminal Petitions Nos. 923-L of 2014 and 91-L of 2018, decided on 6th December, 2018.

(Against the judgment dated 11.07.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 2248 of 2010 and Murder Reference No. 512 of 2010)

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

----Ss. 302(b), 34 & 397---Qatl-i-amd, common intention, robbery or dacoity with attempt to cause death or grievous hurt---Reappraisal of evidence---Benefit of doubt---Implication in case upon disclosure made before police---Accused had not been nominated in the FIR and according to the prosecution he was implicated upon his own disclosure allegedly made before the local police when he had been arrested in connection with some other case---In one breath the complainant stated before the Supreme Court in clear terms that at the time of making of such a disclosure by the accused before the police the complainant was himself physically present and it was before him and the local police that the accused had confessed his guilt but in the next breath the complainant withdrew that statement and stated that he was not present with the local police when the accused had allegedly made a disclosure regarding his involvement in the present criminal case---In such backdrop cautious approach had to be adopted in placing a whole­hearted reliance upon the statement made by the complainant before the Trial Court---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed, the convictions and sentences 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)---

----Ss. 302(b), 34 & 397---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, robbery or dacoity with attempt to cause death or grievous hurt---Reappraisal of evidence---Benefit of doubt---Identification parade conducted belatedly and containing discrepancies---Incident in question had taken place during a night in which the area in question was engulfed in dense fog, the culprits committing the alleged offences were not previously known to the complainant party and at best the members of the complainant party could only have a fleeting glance at the culprits when the occurrence was in progress---Eye-witnesses had maintained before the Magistrate conducting the parade that the culprits had their faces muffled during the incident---Identification parade had been conducted after more than two months of the alleged occurrence---Besides, proceedings of the parade available on the record showed naked interpolations vis-a-vis the roles attributed to different accused persons and such interpolations were not only in different ink but also in different handwriting---Eye-witnesses belonging to the complainant party had maintained that the said proceedings had been interpolated with and they did not reflect the correct state of affairs---When the eye-witnesses belonging to the complainant party and the Magistrate produced by the prosecution who conducted the parade were themselves at loggers head regarding authenticity of the proceedings of the parade then the said proceedings had become quite doubtful and were not worthy of implicit reliance---In the test identification parade the complainant and two other eye-witnesses had maintained that the accused had only searched the complainant and some others during the alleged occurrence and they had not attributed any role to the accused regarding causing of murder of the deceased or causing injuries to others but another eye-witness belonging to the complainant party had maintained that the accused had also fired at the said witness causing an injury on his lip---Such a conflict between the stands of the eye-witnesses produced by the prosecution vis-a-vis the accused's role by itself was sufficient to create serious doubts about veracity of the said witnesses---Appeal was allowed, the convictions and sentences of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Identification of accused before Trial Court during the trial---Such identification was generally unsafe because the members of the complainant party got opportunities to see the accused persons before the Trial Court on many occasions before making their depositions.

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

----Ss. 302(b), 34 & 397---Qatl-i-amd, common intention, robbery or dacoity with attempt to cause death or grievous hurt---Reappraisal of evidence---Benefit of doubt---Recoveries of cash and weapon on alleged pointation of accused, reliance upon---During the investigation a sum of Rs. 700/- in cash had allegedly been recovered from the accused's custody and it was also alleged that he had led to recovery of a pistol but both such recoveries had been rightly ruled by the High Court out of consideration because the recovered cash never stood connected with the robbed amount and in the absence of any crime-empty having been secured from the place of occurrence the recovered pistol was not of much avail to the prosecution---Appeal was allowed, the convictions and sentences of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

Shahid Azeem, Advocate Supreme Court for Appellants/ Petitioners (in Cr. A. No. 105-L of 2017 and Criminal Petition No. 91-L of 2018).

Petitioner in person (in Criminal Petition No. 923-L of 2014).

Complainant in person (in Criminal Appeal No. 105-L of 2017 and Criminal Petition No. 91-L of 2018).

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

2019 S C M R 306

[Supreme Court of Pakistan]

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

SHOAIB ULLAH CHEEMA and others---Petitioners/Appellants

Versus

ADDITIONAL REGISTRAR OF COMPANIES, SECP and others---Respondents

Civil Appeal No. 1563 of 2014, Civil Petitions Nos. 2215-L of 2017 and 471-L of 2018, decided on 15th January, 2019.

(Against the impugned judgment dated 15.09.2014, 19.06.2017 and 22.02.2018 passed by the Lahore High Court, Lahore in C.O. No.51/2013, C.M. No. 37/2016 in C.O. No. 51/2013 and C.M. No.16/2018 in C.O. No. 51/2013, respectively)

Companies Ordinance (XLVII of 1984)---

----Ss. 10 & 305---Winding up order or any order passed or decision made by the Company Judge after the winding up of a company---Appeal to the Supreme Court---Scope---Section 10(1) of the Companies Ordinance, 1984 provided that it applied to a winding up order as well as any order or decision made in the winding up proceedings after a company had been ordered to be wound up---Resultantly, a winding up order as well as any order passed or decision made by the Company Judge after the winding up of a company should be appealable before the Supreme Court instead of the Division Bench of the High Court. [Ibrahim Shamsi v. Bashir Ahmed Memon (2005 SCMR 1450) held to be good law; Kamaluddin Qureshi v. Ali International Company (PLD 2009 SC 367) overturned].

Kamaluddin Qureshi v. Ali International Company PLD 2009 SC 367 overturned for not being good law.

Ibrahim Shamsi v. Bashir Ahmed Memon 2005 SCMR 1450 held to be good law.

Appellant/Petitioners in person (in C.A. No. 1563 of 2014 and C.P. No. 471-L of 2018).

Nemo for Petitioners (in C.P. No. 2215-L of 2017).

Muqtadir Akhtar Shabbir, Advocate Supreme Court and Nasrullah Khan Babar, Advocate Supreme Court for Respondents.

2019 S C M R 321

[Supreme Court of Pakistan]

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

MUHAMMAD KHALIL---Petitioner

Versus

Messrs FAISAL M.B. CORPORATION and others---Respondents

C.P.L.A. No. 1476 of 2016, decided on 14th September, 2018.

(Against judgment dated 10.02.2016 of Lahore High Court, Lahore passed in E.F.A. No. 280 of 2008)

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

----O. XXI, R. 89---Auction proceedings---Power of Court to set aside auction---Grounds---Land sold at less than Deputy Commissioner (DC) value---Auction not conducted at the spot---Substantial loss to the judgment debtor---In a situation where a property was sold for less than its value, by availing the benefit of O.XXI, R. 89, C.P.C., the judgment debtor or any other person holding interest in such property may challenge the sale and retrieve the property from the purchaser by depositing the purchase price together with 5% of such price in Court---Subject land, in the present case, measuring 25 acres was sold for a paltry sum of Rs. 2.6 Million which translated into Rs.96,635 per acre---Said amount was not only less than the actual market value of the land, but was also substantially less than the Deputy Commissioner (DC) rate which was in the sum of Rs.6,06,400/- per acre---Calculated as per criteria of DC rate and not considering the real market value of the land, the value of 25 acres came to Rs.15,160,000---No plausible or reasonable explanation was provided for the huge difference between the value represented by the auction price and the real market value---Land in question was indeed sold at a throw away price causing substantial injury and loss to the judgment debtor---Further, there was evidence on record that the auction proceedings were not conducted at the spot---Such fact casted serious doubts upon the sanctity of the auction and the entire process which led to such auction---Upon coming to the conclusion that a property had been sold for less than its market value, the Court was not denuded of its jurisdiction to set aside such sale on account of inadequacy of price alone---Record indicated that the executing court never confirmed the auction, therefore, no vested right had accrued in favour of the auction purchaser---Petition for leave to appeal was dismissed in circumstances.

Lanvin Trader's case 2013 SCMR 1419 ref.

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

----O. XXI, R. 89---Auction proceedings---Power of Court to set aside auction--- Scope--- Court had the power to set aside any auction if the same was proved to have been conducted in an unlawful or irregular manner or the property had been sold at a throw away price.

Lanvin Trader's case 2013 SCMR 1419 ref.

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

----O. XXI, Rr. 89 & 90---Auction proceedings---Power of Court to set aside auction---Scope---Auction was always subject to confirmation by the Court---Till such time that confirmation was granted by the Court, powers available to the Court under O. XXI, Rr. 89 & 90, C.P.C. could always be exercised after hearing all concerned parties and in accordance with law.

Kh. M. Farooq, Senior Advocate Supreme Court for Petitioner.

M. Munir Paracha, Advocate Supreme Court and M. Ramzan Chaudhry, Advocate Supreme Court for Respondents Nos. 1-4.

Syed Zahid Hussain Bukhari, Advocate Supreme Court and Ms. Khalida Parveen, Advocate Supreme Court for Respondent No.6.

2019 S C M R 326

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ

MINHAJ KHAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 191 of 2018, decided on 14th January, 2019.

(On appeal against the judgment dated 15.02.2018 passed by the Lahore High Court, Rawalpindi Bench in Crl. A. No. 182 of 2017)

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

----S. 9(c)---Possession of narcotics---Re-appraisal of evidence---Conviction of accused primarily rested on the testimonies of two police officials/eye-witnesses and one of them was also the complainant---Glaring discrepancies were found in the testimonies of the said two eye-witnesses---Said witnesses in their statements showed purported lack of knowledge about certain aspects of the case which they ought to have remembered whilst having a photographic recollection of other insignificant things---Another police official who took down the written complaint and was also an eye-witness of the occurrence and of the recovery memorandums was not produced before the court---Complainant did not proceed to the police station himself to register the FIR but instead sent another police official with the written complaint, which conduct was inexplicable---Conclusion to be drawn from the circumstances of the case was that the prosecution had failed to establish its case against the accused beyond reasonable doubt, or, at worst, that the accused was involved in a false case for ulterior reasons, therefore it was not safe to maintain the accused's conviction on the basis of such evidence---Accused was acquitted of the charge under S. 9(c) of Control of Narcotic Substances Act, 1997---Petition for leave to appeal was converted into an appeal and allowed accordingly.

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

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab for the State.

2019 S C M R 332

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab 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 7th January, 2019.

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

----S. 9---Anti-Money Laundering Act (VII of 2010), S. 3---Corruption and corrupt practices, opening fake bank accounts for money laundering---Human rights case---Matter concerning fake bank accounts allegedly used for money laundering and other unlawful activities---Slackness in the progress of pending enquiries---Investigation being influenced, obstructed and hampered by certain individuals---Joint Investigation Team (JIT), findings of---Transmission of JIT report along with all evidence to National Accountability Bureau (NAB)---During investigation several suspicious/fake bank accounts were uncovered showing transactions in excess of billions of rupees undertaken through various banks---Ostensible owners of such bank accounts denied opening or operating the accounts---Said accounts were opened by misusing National Identity Cards of different unsuspecting persons without their knowledge or consent, and huge sums of money running into billions of rupees had been deposited in the said accounts by or on behalf of persons who were under investigation or entities controlled by them, and this appeared to have been done in order to undertake illegal rotation, layering and movement of huge sums of money through the said accounts presumably for money laundering of tainted money obtained through kickbacks, bribes and other unlawful means and methods---Money laundering mechanism had been devised to legitimize funds whose source and legitimacy was highly questionable---Further, evidence of huge sums of money being remitted out of Pakistan, possibly through hawala/hundi transfers added an additional dimension to the investigation---Joint Investigation Team (JIT) formed on directions of the Supreme Court to probe into the matter had opined that prima facie cognizable offences had been made out involving corruption, corrupt practices and money laundering; that public sector institutions had been remiss negligent and heedless in following laws, rules and regulations and in some instances working in complete disregard of the same for years on end---Prima facie, a case for referring the report of the JIT, along with all relevant documents, evidence, statements and the recommendations of the JIT as well as various aspects of violation of the laws, rules and regulations, receipt of bribes, kickbacks, misappropriation of public funds, misuse of authority, criminal breach of trust and related matters to the National Accountability Bureau (NAB) for initiating proceedings under the National Accountability Ordinance, 1999 was made out---Supreme Court directed that the complete report of the JIT along with all material and evidence collected by the JIT shall be transmitted to NAB immediately; that all members of the JIT shall be associated with NAB for the purposes of assisting in any further probe, inquiry or investigation that NAB may consider necessary or appropriate in order to satisfy itself about the fulfillment of legal and procedural requirements and to complete the investigation in its entirety; that all cases which had not been concluded or in the opinion of the JIT required further probe shall remain within the jurisdiction of the JIT which shall continue its probe and investigation under the mandate granted by the Supreme Court and complete such investigation/probe within a reasonable time whereafter its report together with all material and evidence collected shall be transmitted to NAB without the need for any further orders from the Supreme Court for action in accordance with law; that funds deposited or circulated through the fake accounts had also been used for other unlawful activities, which did not strictly fall within the parameters of the mandate granted to JIT by the Supreme Court, however, considering that all such transactions, activities, acts and omissions constituted a part of or arose out of the same set of events and transactions which had a direct, indirect or incidental nexus to questionable funds and their movement, the acts of the JIT in probing these matters was endorsed and it would be deemed that the original mandate of the JIT as granted in the original order of the Supreme Court included within its scope and parameters a direction to probe such other activities, acts and or transactions.

(b) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2(1)---National Accountability Ordinance (XVIII of 1999), S. 9---Anti-Money Laundering Act (VII of 2010), S. 3---Corruption and corrupt practices, opening fake bank accounts for money laundering---Exit Control List (ECL)---Human rights case---Matter concerning fake bank accounts allegedly used for money laundering and other unlawful activities---On the basis of the report of a Joint Investigation Team (JIT) and recommendations made therein, the Federal Government had placed the names of certain persons on the Exit Control List, which included the names of Provincial Chief Minister and Chairman of a political party---Counsel for the JIT conceded that the material against the said two persons may need re-examination to arrive at the correct conclusions---Names of said two persons may have been included in the Exit Control List without careful examination of the material available on record and the ramifications and consequences of such action for the said persons---Counsel for the Chief Minister had also apprised the court that it would cause serious problems in performance of his official functions in case his name was placed on the Exit Control List and his movements were restricted---Supreme Court directed that the names of the Provincial Chief Minister and Chairman of a political party for the time being be removed from the Exit Control List, however this would not prevent the National Accountability Bureau to probe their cases further and in case sufficient material was found connecting the said persons with cognizable offences, it shall not be precluded from making an appropriate request to the Federal Government to place their names on the Exit Control List or take any appropriate action provided by law.

In Attendance:

Anwar Mansoor Khan, Attorney General for Pakistan.

Syed Asghar Haider, PG, NAB.

Khurram Saeed, Additional AGP.

Salman Talib ud Din, AG, Sindh.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court.

Gohar Ali Khan, Advocate Supreme Court (for Bahria Town).

Kh. Ahmed Tariq Raheem, Senior Advocate Supreme Court.

Azhar Siddique, Advocate Supreme Court (for Zain Malik and Malik Riaz).

Naeem Bukhari, Advocate Supreme Court.

Ch. Akhtar Ali, Advocate-on-Record for NBP.

Farooq H. Naek, Senior Advocate Supreme Court.

Sardar M. Latif Khosa, Senior Advocate Supreme Court (for Asif Ali Zardari and Faryal Talpur).

Zakir Hussain Khaskheli, Advocate Supreme Court.

Muhammad Irfan, Law Officer for MLD.

Imran Aziz, Advocate Supreme Court for Silk Bank.

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 and Omni Group).

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 and Ahsan Tariq, President Sindh Bank.

Salman Aslam Butt, Senior Advocate Supreme Court for UBL.

Ibrar Saeed, Legal Advisor (for SECP).

Najeem 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).

Shaukat Hayat, Advocate Supreme Court and M. Qasim Mirjat, Advocate-on-Record (for Hussain Lawai).

Ahmed Nawaz Chaudhry, Advocate-on-Record (for Sher Muhammad Mugheri).

Shahab Sarki, Advocate Supreme Court for Shahzad Jatoi (for A One Group).

Bashir Ahmed Memon, DG FIA, Ali Sher Jakhrani, Dir Law, I.D Mangi, AIGP (Legal) Sindh Karachi, M. Saleem Baig, Chairman, PEMRA and Ali Zeeshan Gondal, Head Legal, PEMRA for FIA.

Syed Ansar Hussain, AD and Raja Abdul Ghafoor, Advocate-on-Record for State Bank.

Faisal Siddiqui, Advocate Supreme Court, Ihsan Siddiqui, Additional DG, FIA, Brig. Shahid Parvez, ISI, Muhammad Afzal, SECP, Nauman Aslam, NAB, Imran Latif, FBR, Majid Hussain, SBP and Malik Tariq, Additional Dir Law, FIA for JIT.

2019 S C M R 349

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Sajjad Ali Shah, JJ

CHAIRMAN, FBR through Member Administration---Appellant

Versus

MUHAMMAD ASFANDYAR JANJUA and others---Respondents

Civil Appeal No. 322 of 2018, decided on 30th May, 2018.

(Against the order dated 4.11.2018 passed by the Federal Service Tribunal in Appeal No. 161(K)CS/2015)

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

----S. 25(2)---Office Memorandum, issued under S. 25(2) of Civil Servants Act, 1973--- Such memorandum had the force of law.

Azra Riffat Rana v. Secretary Minister of Housing and Works and others PLD 2008 SC 470 and Fazali Rehmani v. Chief Minister N.W.F.P. Peshawar and others PLD 2008 SC 769 ref.

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

----Ss. 8(3) & 9---Civil Servants (Seniority) Rules, 1993, R. 2(3)(b)---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7(1)---Seniority, determination of---Question as to whether in cases where length of service was provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service---Respondent passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996, however, he was treated to be domiciled of Punjab, instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab---Respondent in the year 1997 challenged such treatment by filing a Constitutional petition before the High Court of Sindh, which was allowed upon his furnishing an undertaking that he would not claim the seniority---Said order was maintained by the Supreme Court and the respondent was finally allowed to proceed for training in Sindh Civil Service Academy from where he passed the mandatory final passing out examination on 1-9-2009---After requisite training and on completion of five years mandatory service, the respondent was promoted from BS-17 to BS-18---Respondent was aggrieved when the Departmental Selection Board in its meeting did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete in future on 26-8-2019---Contention of respondent that it was the Board's fault that he was treated as Punjab domiciled and was declined his due right to join service and was made to litigate for a period of ten years, therefore, he could not be denied the benefit of such promotion, merely for want of length of service---Held, that provision of subsection (3) of S. 8 of Civil Servants Act, 1973 if read in conjunction with R. 2(3)(b) of the Civil Servants (Seniority) Rules, 1993 left no doubt that the seniority of a civil servant on initial appointment to a service, cadre or post had to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto---Even Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 empowered the Government to determine the seniority of the probationers after Final Passing Out Examination---No section of law or rule framed thereunder was brought to the court's notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training---Respondent on account of certain acts or omissions on the part of the Board could not maintain his seniority with officers of his Common Training Programme (CTP) with whom he had cleared CSS examination and neither he completed his necessary training with officer of his CTP nor, he could be inducted in service with them---Remedy to such act or omission at the most could be induction in service by rectifying the wrong---In the present case, no mala fide on the part of the Board has been alleged but, even in cases where such act or omission was found to be tainted with mala fide the remedy could be anything but not seniority without actual length of service---Impugned order of Federal Service Tribunal whereby respondent was given benefit of placement of his seniority with officers of Common Training Programme (CTP) with whom he had cleared CSS examination, was set aside---Appeal was allowed accordingly.

Chairman Federal Board of Revenue v. Iqbal Hussain Shaikh 2016 SCMR 773; Haroon Muhammad Khan and others v. Rukhsana Yasmeen and others 2014 SCMR 358; Ghulam Rasool and others v. Government of Balochistan and others 2002 PLC (C.S.) 47 and G.C. Gupta v. N.K. Pandev AIR 1988 SC 654 distinguished.

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

----Ss. 8 & 9---'Seniority' and 'Promotion'---Not vested rights---Neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights.

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

Respondent No.1 in person.

2019 S C M R 362

[Supreme Court of Pakistan]

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

HABIB BANK LTD.---Appellant

Versus

BASHIR AHMAD and others---Respondents

Civil Appeal No. 839 of 2015, decided on 6th December, 2018.

(Against the judgment dated 15.6.2015 of the Lahore High Court, Multan Bench, Multan passed in FAO No.64 of 2015)

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

----S. 19(7)---Auction proceedings set-aside by Banking Court---Unjust enrichment of Bank at the cost of auction purchaser---Return of deposited amount to auction purchaser with penalty/mark-up---Appellant Bank being a decree holder placed a mortgaged property owned by the judgment-debtor up for auction to recover the decretal amount---Respondent submitted the highest bid in the sum of Rs.50,50,000---Banking Court confirmed the auction of the property in favour of the respondent (auction purchaser)---On appeal the High Court set aside the order of Banking Court---Respondent thereafter filed an application for return of the auction amount, which was allowed by the High Court, with the direction to the Bank to refund the amount of Rs.50,50,000/- together with 10% mark up as penalty---Held, that respondent was entitled to receive compensation on the amount which he deposited with the Bank by way of price of the auctioned property---Matter of auction of property lingered on in courts for a number of years for no fault of the respondent---Bank had possession and use of the funds (deposited amount) for a period in excess of nine years---During such time surely the money was utilized by the Bank in its business and obviously the Bank earned returns on the same, therefore it would neither be just nor proper to allow the Bank, free use of the money, as it would amount to un­just enrichment at the cost of the respondent (auction purchaser) who was not to be blamed for delay in the legal process---Supreme Court upheld the judgment of the High Court but reduced the amount of penalty/mark up awarded from 10% to 8% per annum---Supreme Court directed that respondent shall now be entitled to recover the entire amount of Rs.50,50,000/- together with penalty mark up calculated @ 8% per annum from the date of deposit till the date of refund.

(b) Administration of justice---

----Act of the Court shall not prejudice any of the parties.

Sardar Riaz Karim, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Muhammad Suleman Bhatti, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos. 2 - 8.

2019 S C M R 365

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

CONTROL RISK (PVT.) LTD.---Petitioner

Versus

ADDITIONAL REGISTRAR COMPANIES REGISTRATION OFFICE SECP, ISLAMABAD---Respondent

Civil Petition No. 2669 of 2016, decided on 31st October, 2018.

(Against the judgment dated 30.6.2016 of the Islamabad High Court, Islamabad passed in C.O. No. 07 of 2014)

(a) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 305, 309(b) & 309(c)---Petition for winding up of company---Requirements with respect to petitions under Ss. 309(b) & 309(c) of the Companies Ordinance, 1984---Distinction---Subsections (b) and (c) of S. 309 of the Ordinance were distinct and separate from each other, and were neither co-dependent nor did they correspond to any particular part of S. 305 of the Ordinance---If S. 309(c) of the Ordinance was to be made a condition precedent for S. 309(b) that would be tantamount to reading the requirements of the former into those of the latter which the Court could not permit.

(b) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 305(f)(i), 305(f)(ii), 305(f)(iv), 305(f)(v) & 309(b)---Winding up of company on petition of Additional Registrar CRO [SECP]---Grounds---Carrying on business not authorized by memorandum, carrying on unlawful activities---As per the Memorandum of Association (MOA) of the petitioner-company its object was to carry on the business of, inter alia, risks assessments; analysis and management; business consultancy; project implementation consultancy, with an emphasis on market entry advisory; project implementation support and risk management consultancy, etc.---Additional Registrar CRO reported that the company was engaged in security related matters, such as provision of security services to foreigners, using trackers during movements, attempting to visit restricted areas, collecting information about armed forces, using fake number plates, which activities/ business were not only ultra vires its MOA but also posed a security risk to the country---Additional Registrar sought sanction from the Securities and Exchange Commission of Pakistan (SECP) under S. 309(b) of the Companies Ordinance, 1984 to present a petition before the competent jurisdiction (High Court) for winding up of the petitioner-company, which sanction was granted---Petition for winding up the petitioner-company was allowed by the High Court---Held, that petitioner-company was providing risk management and security-related services to foreign companies and foreign embassies and it had ex-foreign military officials on its payroll---Furthermore, the record clearly suggested that the petitioner's response had throughout been evasive---Reports of intelligence agencies were received in support of the allegations communicated to the petitioner and its representatives were confronted with such reports and were asked to explain whether the provision of risk assessment and intelligence reports with respect to the security scenario in Pakistan fell within the ambit of the MOA, however, the representatives of the petitioner-company were unable to provide a plausible answer in such regard---Petitioner-company was indeed providing services that were beyond the scope of its MOA---High Court had ordered for winding-up of the petitioner-company for cogent reasons which were upheld by the Supreme Court---Petition for leave to appeal was dismissed accordingly.

Barrister Yousaf Khosa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Syed Hamid Ali Shah, Advocate Supreme Court for Respondent.

2019 S C M R 372

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam and Yahya Afridi, JJ

MALIK DIN---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and another--Respondents

Criminal Petition No. 300 of 2018, decided on 6th December, 2018.

(On appeal against the judgment/order dated 22.01.2018 of the Islamabad High Court, Islamabad passed in Criminal Appeal No. 95 of 2017)

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

----Ss. 9(a)(vi) & 18(b)(ii)---Administrator of Housing Society---Misuse of authority in allotting and converting plots---Initiation of reference against accused---Procedure---Complaint letter received from Standing Committee of Senate of Pakistan on Law, Justice and Human Rights ("Standing Committee")---Plea of accused that case against him lacked jurisdiction, as it was initiated on the basis of a letter/recommendation of the Standing Committee, which was alien to the prescribed procedure ordained in the National Accountability Ordinance, 1999, and thus, vitiated the entire structure built thereon---Held, that letter of the Standing Committee would fall within the purview of a complaint, as provided under clause (ii) of subsection (b) of S. 18 of the National Accountability Ordinance, 1999---Stance taken by the accused regarding jurisdictional defect in initiating a reference against him was, therefore, misconceived.

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

----S. 9(a)(vi)---Constitution of Pakistan, Art. 25---Administrator of Housing Society---Misuse of authority in allotting and converting plots---Criminal jurisprudence---Defence---Discrimination, plea of---Contention on behalf of accused that the action of National Accountability Bureau (NAB) against him was discriminatory, as it had singled him out to the exclusion of the other hundreds of housing societies mentioned in the complaint letter sent to NAB by the Standing Committee of the Senate---Held, that it was a settled principle of criminal jurisprudence that challenging prosecution on the ground of discrimination by the State could not be a complete valid defence to absolve an accused from criminal liability arising from his actions or inactions---Any person charged for a crime was answerable for his own acts or omissions and had to defend himself in a trial for the said charged offence---Plea of discrimination raised by accused was legally incorrect.

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

----S. 9(a)(vi)---Administrator of Housing Society---Misuse of authority in allotting and converting amenity plots for commercial use---Reappraisal of evidence---Terms of the appointment order of the accused were very clear in their intent; he had been expressly barred, inter alia, not to make any allotment of plot, whether fresh or pending---In view of the said express bar stipulated in the very appointment order of the accused, he has exceeded his said authority by not only allotting fresh plots, but also converting amenity plots reserved for graveyard for commercial purposes benefiting two beneficiaries---No plausible explanation was brought on record to justify such actions---In addition prosecution produced sufficient evidence to prove the illegal exercise of authority by the accused during his fifteen months stint as Administrator of the Society; the transfer of eleven plots, the merger of two residential plots with part of land reserved for the graveyard and converting the same for commercial purposes for a twelve storey building thereon; and finally, the adverse financial implications of Rs.686 million to the Society---Beneficiaries of the illegal allotments and conversions carried out by the accused applied for voluntary return to National Accountability Bureau (NAB) offering the reversal of all illegal allotments and conversion of plots, which request was accepted by NAB---Prosecution was able to prove beyond doubt the charges for illegal allotments and conversions carried out by the accused---Conviction of accused as awarded by the Accountability Court and maintained by the High Court, did not warrant any interference.

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

----S. 9(a)(vi)---Administrator of Housing Society---Misuse of authority, offence of---Scope---No personal gain to the accused---Offence of corruption or corrupt practices as provided in clause (vi) of subsection (a) of S. 9 of the National Accountability Ordinance, 1999 included even an attempt to misuse authority so as to gain any benefit for any other person and it need not necessarily result in any personal gain to the accused.

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

----S. 9(a)(vi)---Administrator of Housing Society---Misuse of authority in allotting and converting plots---Reappraisal of evidence---Sentence, reduction in--- Five years rigorous imprisonment reduced to four years---Accountability Court convicted the accused under S. 9(a)(vi) of the National Accountability Ordinance, 1999 and sentenced him to five years rigorous imprisonment with fine of Rs. 500,000---Accused was also disqualified for a period of ten years for being elected, chosen, appointed or nominated as member or representative of any public body or any statutory local authority or in service of Pakistan, and was not allowed to apply for or be granted or allowed any financial facilities in form of any loan for advances or other financial accommodation by any bank or financial institution owned or controlled by the Government for a period of ten years---Held, that quantum of sentence imposed on the accused had to be revisited for several reasons; firstly, the prosecution failed to prove any financial gain derived by the accused from the impugned charged acts; secondly, all illegal acts had been reversed, redeeming all financial loss to the housing society; and finally, other societies highlighted in the complaint letter of the Standing Committee of the Senate had not been proceeded against by National Accountability Bureau---Supreme Court maintained the conviction of accused, however, sentence of five years rigorous imprisonment was reduced to four years, but the fine, disability and disqualifications awarded by the Accountability Court and confirmed by the High Court were maintained.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Jehanzeb Bharwana, Additional PG NAB for Respondents.

2019 S C M R 382

[Supreme Court of Pakistan]

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

NASIR MEHMOOD and another---Appellants

Versus

UMAR SAJID and others---Respondents

Civil Appeal No. 3 of 2017, decided on 13th December, 2018.

(Against judgment dated 27.10.2015 of Lahore High Court, Lahore, passed in Writ Petition No. 30944 of 2015)

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

----S. 27(2)(i)--- Constitution of Pakistan, Art. 63(1)(h)---Disqualifications for candidates---Conviction and sentence for a term not less than 'two years'---Multiple convictions carrying sentences of less than two years each---Candidate in question was convicted on four counts under different provisions of law and sentenced for a term of one year and six months imprisonment against each count---Sentences were ordered to run concurrently---Question was whether conviction on four counts and a sentence of one year and six months on each count was to be seen cumulatively or in the perspective of being served consecutively in the context of S. 27(2)(i) of the Punjab Local Government Act, 2013 ("Act") read with Art. 63(1)(h) of the Constitution---Held, that benefit of running of the sentences concurrently was only to the extent of the period of incarceration in jail and the same would have no effect on the sentences awarded to a person on different counts which had to be read cumulatively for the purposes of disqualification envisaged by Art. 63(1)(h) of the Constitution and S. 27(2)(i) of the Act---For purposes of Art. 63(1)(h) of the Constitution and S. 27(2)(i) of the Act, the portion of sentence actually served was of no relevance and the disqualification was attracted on the basis of conviction and sentence "awarded" as opposed to served---Similarly when a person was convicted and sentenced for more than two years, but for a number of possible and perfectly legitimate reasons, he was released after serving a period of less than two years, the bar of Art. 63(1)(h) and S. 27(2)(i) of the Act would still be attracted, as the material consideration was conviction and sentencing and not the actual time for which the convict served his sentence. [Ch. Zahid Iqbal v. Returning Officer NA-162 (Sahiwal III) and 3 others 2013 CLC 1856 approved].

Ch. Zahid Iqbal v. Returning Officer NA-162 (Sahiwal III) and 3 others 2013 CLC 1856 approved and reaffirmed.

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

----S. 27(2)(i)--- Constitution of Pakistan, Art. 63(1)(h)---Disqualifications for candidates---Conviction and sentence for a term not less than 'two years'---Suspension of sentence---Effect on disqualification---Suspension of the sentence awarded to the candidate would have no consequence on his conviction which was complete as soon as the person charged had been found guilty by a Court of competent jurisdiction---Conviction of the candidate was relevant in the context of Art. 63(1)(h) of the Constitution and S. 27(2)(i) of the Punjab Local Governments Act, 2013 ("Act")---Suspension of sentence would have no consequence on the conviction of the candidate the purposes of being qualified to contest either the local bodies elections or the elections for the Legislative Assemblies---Unless the conviction was specifically suspended by the Appellate Court by assigning cogent reasons therefor, or the appeal of the candidate was ultimately allowed and his conviction as well as sentence were set aside by the Appellate Court, the conviction of the candidate would continue to hold the field and the disqualification incurred by him, by reason of this conviction, shall remain intact.

M. Ahsan Bhoon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Azam Nazir Tarar, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondents.

2019 S C M R 389

[Supreme Court of Pakistan]

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

CONSTITUTION PETITION NO.134 OF 2012

AND

CIVIL MISC. APPLICATION NO.1864 OF 2010 IN CONSTITUTION 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 CONSTITUTION PETITION NO.134 OF 2012

AND

CIVIL MISC. APPLICATIONS NO.3034, 3048, 3051 AND 6247 OF 2018 IN CIVIL MISC. APPLICATION NO.1864 OF 2010

PAKISTAN BAR COUNCIL through Chairman and others---Petitioners

Versus

FEDERAL GOVERNMENT through Establishment Division and others---Respondents

Constitutional Petition No. 134 of 2012, Civil Miscellaneous Application No. 1864 of 2010 in Constitutional Petition No. 9 of 2005, Civil Miscellaneous 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 Miscellaneous Applications Nos. 3034, 3048, 3051 and 6247 of 2018 in Civil Miscellaneous Application No. 1864 of 2010, decided on 31st August, 2018.

(a) Bar and bench---

----Legal system on the whole flourished by positive and productive cooperation between the Bar and the Bench for ascertainment of the truth and decision of controversies according to the relevant and applicable law---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.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 13(1)(j)---Pakistan Bar Council Legal Education Rules, 2015, Rr.9, 13, 17, 25, 28 & 34---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---Recommendations and directions given by the Supreme Court for improving standards of legal education in Pakistan---Legal education played a crucial role in strengthening the rule of law, social stability, governance and economic development---In Pakistan there had been a major decline in the standard of legal education owing to various reasons, most important of which was the proliferation of substandard law degree awarding institutions that were motivated solely by commercial considerations rather than academic excellence---Such shift in priorities had inevitably compromised the quality of education and hampered the intellectual development of law students---Provision of good quality legal education was inextricably linked with dispensation of justice that the Bar was responsible for ensuring---In its capacity, the Bar must make a conscientious effort to standardise law degree awarding institutions---Standards of proficiency for entry to the Bar was regulated by Legal Practitioners and Bar Councils Act, 1973 ("Act")---Pakistan Bar Council established under the Act and the Higher Education Commission of Pakistan ("HECP") were the key regulators to supervise and enforce professional standards in legal education---Cooperation between the Bar Councils, HECP and law colleges had far reaching effects in terms of development in the law, therefore law degree awarding institutions must comply with the guidelines and rules framed by the Bar Councils from time to time---Well-structured curriculum also fostered quality education with enduring results---Law degree curriculum should effectively impart academic knowledge and hone skills of argument, legal analysis and linguistic communication---Incorporating legal ethics in law curricula was vital for making students aware of the ethics, professional responsibilities, fiduciary obligations and discipline expected of them as future legal practitioners---Another important skill for the practice of law was proficiency in the English language---Law colleges must strive that English as a medium of instruction of legal subjects was adopted so that students were adequately proficient before they graduated---Apart from substantive and procedural law, law colleges must include social sciences such as sociology, economics and political science in their curricula to inform students about growing number of specialised fields in the legal profession---Five year LL.B. programme should be introduced in law colleges that were not already offering it, as this would provide the time and exposure to ensure a complete and comprehensive legal education where students could adequately learn and acquire the knowledge, skills, values and practical judgment required for the legal profession---For faithfully discharging their duty, the law degree awarding institutions also had a crucial responsibility of ensuring availability of adequate resources, infrastructure and a faculty that was well equipped to provide quality education---Law degree awarding institutions must therefore devote adequate resources to a law library, co-curricular activities such as mooting and student support services academic and career advice---Faculty members should also assist in administrating the admission procedure and policies, curriculum, methods of teaching and examination to maintain high academic standards as well as closely supervise each student's academic performance to ensure the best possible results---Due consideration must also be given by Provincial and Federal governments to allocate sufficient resources for the improvement of legal education---Once young professionals were admitted to the Bar, it was necessary that they continued to evolve, learn and improve their skills and knowledge to maintain consistency with a progressing legal environment---For such purposes it was imperative that a system of mandatory/minimum continuing legal education (CLE) or continuing professional development (CPD) was devised whereby practicing lawyers were continuously tested to ensure that they had the requisite knowledge of the law and amendments or developments thereof---In such regard, senior members of the Bar had a duty to contribute to the learning and grooming of entrants during the mandatory apprenticeship period by imparting their knowledge and expertise of different areas of practice---Supreme Court issued certain 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 year 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, M. Shoaib Shaheen, Advocate Supreme Court, Ch. Zulfiqar Ahmed Khan, Advocate Supreme Court, Ms. Bushra Qamar, Advocate Supreme Court and 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 (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 (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.

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 and 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 Aneeq Ali Khattana, Advocate (in-person) (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/C.M.A. 6722/18).

Usama Shafique, Assistant Registrar, University of South Asia.

Sajid Ilyas Bhatti, Additional 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, Additional A.G. KP, Ayaz Swati, Addl. A.G. Balochistan, Syed Naveed Abbas, Advocate Supreme Court and Aftab Mustafa, Advocate Supreme Court (for respondent No.7) on Courts Notice.

Waseem Hashmi, Advisor, HECP, Asif Munir, Director, HECP and Raja Abdul Ghafoor, Advocate-on-Record (for HECP).

2019 S C M R 413

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

YAQUB ALI KHAN---Petitioner

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another---Respondents

Civil Petition No. 2982 of 2016, decided on 19th December, 2018.

(On appeal against the Order dated 1.6.2016 passed by the Islamabad High Court, Islamabad in F.A.O. No. 94 of 2015)

Civil service---

----Divisional Forest Officer, post of--- Requisite experience of candidates--- Petitioner (unsuccessful candidate) challenged appointment of respondent to post of Divisional Forest Officer on the grounds that the latter did not have the requisite experience in the relevant field for being appointed---High Court had directed the Federal Public Service Commission (FPSC) to make the requisite inquiry from the Chief Secretary, about the length of the experience claimed by respondent---Chief Secretary, after having made all requisite inquiries, confirmed to the FPSC that respondent indeed had the requisite experience in the relevant field and thereby validated the experience certificate of respondent---Record also showed that in addition to experience gained while working in the subject area, respondent had also worked in a 'joint venture entity' formed on the basis of an agreement between the Forest Department and an organization---Such work also fell within the definition of the experience in the relevant field---Further when the respondent applied for the post in question he held an M.Phil degree, and according to rules of FPSC, a candidate possessing an M.Phil degree was entitled to claim two years' experience in the relevant field on the basis of such degree---In total respondent had about four years' experience working in the subject area, two years' experience working with the joint venture entity, and two years' experience by virtue of having an M.Phil degree at the time of his application---Aggregate of such experience came to about eight years which was much in excess of the five years' experience required for selection to the post in question---Respondent had held the post in question for more than 10 years now and presently also held a PhD degree in the relevant field---Respondent amply fulfilled the requirement for the post for which he was selected---Petition for leave to appeal was dismissed accordingly.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Nemo for Respondent No.1.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No.2.

2019 S C M R 417

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J.,Ijaz ul Ahsan and Sajjad Ali Shah, JJ

FAZEELAT AGHA---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, MBR, PUNJAB LAHORE and others---Respondents

Civil Miscellaneous Application No. 6250 of 2018 in Civil Review Petition No. 425 and Civil Review Petition No. 425 of 2005 in Civil Petition No. 1208-L of 1998, decided on 1st November, 2018.

(Against the order dated 6.5.1999 passed by this Court in C.P. No. 1208-L of 1998 etc.)

(a) Constitution of Pakistan---

----Art. 189---Civil Procedure Code (V of 1908), S. 11---Decision of Supreme Court binding on other courts---Res judicata, principle of---Order upheld up the High Court and Supreme Court challenged in separate proceedings by way of a Constitutional petition before the High Court---Legality and Constitutionality---Official in question had been a party to the proceedings before the High Court as well as the Supreme Court and to his knowledge, the order in question had been upheld by the Supreme Court, therefore he was not entitled, in any shape or form, to challenge the same order, in a devious and underhanded manner, by filing a Constitutional petition before the High Court---Said Official's actions in approaching the High Court in a fresh Constitutional petition, despite being party to the earlier proceedings throughout, and being represented up to the Supreme Court, was an attempt to undo and circumvent the orders of the Supreme Court, which could not be countenanced---No court in the country had the jurisdiction to interfere with and undermine the authority of the Supreme Court---Official filed the Constitutional petition in clear violation of the principles of res judicata enshrined in S. 11 of the C.P.C. and Art. 189 of the Constitution---Order passed by the High Court in the Constitutional petition was, thus, a nullity being coram non judice.

Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCMR 429; Advocate-General, Government of East Pakistan v. Benoy Bhusan Majumdar and 3 others PLD 1971 SC 179; Mirza Maqbool Elahi through Legal Heirs and 8 others v. Capital Development Authority and 3 others 1998 SCMR 1074 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

(b) Succession---

----Rule of Primogeniture---Agricultural land---Predecessor of the parties, who owned agricultural land in India, died in the year 1917 leaving behind four sons---After partition the four sons moved to Pakistan and three of them ("the claimants") filed a claim before the Settlement and Rehabilitation Authorities urging that the abandoned agricultural land pertaining to their share should be verified as their names duly stood entered in the Pedigree Table of their late father---Said applications were dismissed by the Rehabilitation Commissioner on the ground that according to the revenue record received from India, only the eldest son was mentioned as the sole owner of agricultural land and the other three sons i.e. the claimants had failed to agitate for correction of entries in the said revenue records from the time they attained majority until partition---Held, that Jamabandi clearly showed that the entry in the Revenue Records with respect to the land was in the name of the eldest son followed by "etc.", which clearly established that that the eldest son was not the exclusive owner of the said land as the mention of "etc." was a reference to the three other sons i.e. claimants who were minors at the time of their father's death in the year 1917---Moreover the head of the clan/cast, to which the parties belonged, had provided sworn evidence before the Rehabilitation and Claims Commissioner regarding the non-applicability of the Rule of Primogeniture in their clan/cast---Claim against the abandoned land in India, which had been accepted, had to be shared equally between the four brothers---Review petition was dismissed in circumstances.

Mehmood A. Sheikh, Senior Advocate Supreme Court for Petitioner.

Muhammad Amir Malik, Advocate Supreme Court for Respondent No.1.

Nemo for Private Respondents.

2019 S C M R 439

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

COMMISSIONER OF INCOME TAX PESHAWAR---Appellant

Versus

DIRECTOR GENERAL, NWFP EMPLOYEES SOCIAL SECURITY INSTITUTION, PESHAWAR and another---Respondents

Civil Appeal No. 545-K of 2010, decided on 9th January, 2019.

(On appeal from the order dated 7.4.2009 passed by the Peshawar High Court, Peshawar in T.R. No. 43 of 2008)

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

----Ss. 2(24) & 20---"Taxable income"---Scope---Contributions made by employers to Khyber Pakhtunkhwa Employees Social Security Institution ("the Institution")---Term 'income' used in S. 2(24) of the Income Tax Ordinance, 1979 was of the widest connotation, amplitude and application---Contributions received by the Institution under S.20 of the Ordinance were "income".

Kamakshya Narain Singh v. Commissioner of Income Tax (1943) 11 ITR 513; Gopal Saran Narain Singh v. Commissioner of Income Tax (1935) 3 ITR 237 and Kanga and Palkhivala's The Law and Practice of Income Tax, 8th ed. (1990), pg. 119 ref.

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

----Ss. 20, 23 & Second Sched., Pt. I, Cl. 62(1)---Taxable income---Exemption---Contributions made by employers to Khyber Pakhtunkhwa Employees Social Security Institution ("the Institution")---Whether income received by the Institution in the form of contributions was exempt from tax in terms of Cl. 62 of Part I of Second Schedule to the Income Tax Ordinance, 1979 ("the Ordinance")---Clause 62 applied in case of "voluntary" contributions---Contributions to be made by employers under S. 20 of the Ordinance were "mandatory"---Failure to make timely payment exposed the delinquent employer to the consequences laid down in S. 23, which provided that if there was non-payment of any amount due under S. 20, then what was payable stood increased by such percentage or amount as may be prescribed---Section 23 further provided that any unpaid amount could be recovered as arrears of land revenue---Contributions under S. 20 were, thus, not voluntary and therefore did not come within the scope of Cl. 62 of Part I of Second Schedule to the Ordinance.

(c) Income Tax Ordinance (XLIX of 2001)---

----Second Sched., Pt. I, Cl. 142---Income Tax Ordinance (XXXI of 1979) [since repealed], S. 20 & Second Sched., Pt. I, Cl. 62(1)---Taxable income--- Exemption--- Retrospective effect--- Scope---Contributions made by employers to Khyber Pakhtunkhwa Employees Social Security Institution---Tax assessment years falling under the Income Tax Ordinance, 1979 ("the 1979 Ordinance")---Plea that benefit of exemption from tax provided under Cl. 142 of Part I of Second Schedule to the Income Tax Ordinance 2001 ("the 2001 Ordinance') should be given retrospective effect to apply to assessment years falling under the 1979 Ordinance---Held, that to give retrospective effect to Cl. 142 of the 2001 Ordinance would be not merely to extend its reach over a huge period of time but also to cut across two different statutes---Clause 142 found place in the 2001 Ordinance whereas the issue, in the present case, arose under the 1979 Ordinance, which was repealed by the former---Clause 142 had no retrospective effect as contended for---Appeal was allowed accordingly.

Rehmanullah, Advocate Supreme Court, Farhat Nawaz Lodhi, Advocate Supreme Court and Syed Rifaqat Shah, Advocate-on-Record for Appellant.

Malik Akhtar Hussain Awan, Advocate Supreme Court for Respondents.

Waqar Ahmad, Additional A.-G., Khyber Pakhtunkhwa on Court's Notice.

2019 S C M R 446

[Supreme Court of Pakistan]

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

MEMBER (TAXES) BOARD OF REVENUE PUNJAB, LAHORE and others---Appellants/Petitioners

Versus

QAISAR ABBAS and others---Respondents

Civil Appeals Nos. 815 to 855, 860 to 974, 1476 to 1487, 1601 to 1743, 1883 to 2015, 2089 to 2105 and 2204 to 2287 of 2016, Civil Petitions Nos. 2991-L, 2992-L, 2996-L, 3013-L to 3016-L, 2997-L, 3017-L, 3018-L, 3020-L, 3026-L to 3029-L, 3041-L to 3049-L, 3112-L, 3171-L to 3179-L of 2016, 823-L to 827-L, 918-L, 956-L to 958-L, 991-L to 994-L and 1032-L to 1034-L of 2017, Civil Misc. Applications Nos.382-L to 537-L, 1067-L to 1077-L and 1079-L of 2016, decided on 8th January, 2019.

(Against the judgments dated 26.12.2015, 27.10.2015, 3.11.2015, 11.11.2015, 16.11.2015, 19.11.2015, 20.11.2015, 22.10.2015, 14.1.2016, 3.2.2016, 9.2.2016, 16.3.2016, 5.5.2016, 18.5.2016, 19.5.2016, 11.5.2016, 13.5.2016, 16.5.2016, 17.5.2016, 20.5.2016, 10.5.2016, 31.1.2017, 30.1.2017, 6.2.2017, 8.2.2017, 1.2.2017 of the Lahore High Court, Lahore)

(a) Interpretation of statutes---

----Fiscal/tax statute---Retrospective effect---Scope---Tax/fiscal statutes operated prospectively and not retrospectively unless clearly indicated by the legislature---Retrospectivity could only be attributed to a statute where it was made explicit or could be inferred by necessary implication; it could not be presumed.

Zila Council Jhelum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 ref.

(b) Punjab Agricultural Income Tax Act (I of 1997)---

----Ss.3B & 4(4)---Punjab Agricultural Income Tax Rules, 2001, R. 14(3)---Agricultural income tax---Section 3B of the Punjab Agricultural Income Tax Act, 1997 ("the Act") came into force on 01-07-2013---Question as to whether the tax authority could recover agricultural income tax for the assessment years prior to such date---Held, that since S. 3B of the Act was effective from 01-07-2013, it was applicable to the assessment year beginning on 01-07-2014 as it was the assessment year following the income year which commenced on 01-07-2013---While undoubtedly S. 3B inserted in the Act was to apply prospectively, however, S. 4(4) of the Act read with R. 14(3) of the Punjab Agricultural Income Rules, 2001, clearly allowed for the recovery of agricultural income tax for the two years (i.e. 2012 and 2013) prior to the assessment year in which the total agricultural income was first assessable, i.e. the assessment year beginning on 01-07-2014---Tax authority, therefore, could recover all amounts due within a period of two years from which the total agricultural income was first assessable, i.e. the assessment years of 2012 and 2013.

(c) Punjab Agricultural Income Tax Act (I of 1997)---

----Ss. 3(1), 3B & 4(1)---Punjab Agricultural Income Tax Rules, 2001, R. 14(1)---Agricultural income tax---Recovery of agricultural income tax on basis of agricultural income declared in tax returns---Scope---Application of S. 3B of the Punjab Agricultural Income Tax Act, 1997 ("the Act") was predicated upon the agricultural income as declared by the assessee himself in his income tax return, therefore in cases where the assessee had himself filed his income tax return in which he had declared his agricultural income, by virtue of S. 3B of the Act, the tax department was not required to levy and assess agricultural income tax in terms of S. 3 and could recover the same by issuing recovery notices directly---However where an assessee had not filed his income tax return or had done so without disclosing his agricultural income, then the tax authorities were obliged to levy, assess and collect agricultural income tax (in spite of the presence of S. 3B) in terms of Ss. 3 & 4 of the Act and R. 14(1) of the Punjab Agricultural Income Rules, 2001.

Rana Shamshad Khan, Additional A.-G., Faisal Fareed Hussain, Additional A.-G. and M. Adnan Khan, Law Officer, BOR for Appellants/Petitioners (in all cases except C.A. 2204 of 2016).

Nemo for Appellants/Petitioners (in C.A. 2204 of 2016).

M. Arshad Majeed Malik, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.As. Nos. 821, 836, 843, 881 and 895 of 2016).

Ch. Akhtar Ali for Respondents (in C.A. No. 826 of 2016).

Shakeel-ur-Rehman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.A. 831 of 2016).

Sh. Muhammad Akram, Advocate Supreme Court for Respondents (in C.As. Nos. 834, 835, 879, 880, 939, 1967, 1999, 2000, 2001, 1968, 887, 1957, 1958, 1959 and 1690 of 2016).

Nemo for Respondents (in C.As. Nos. 860, 1884, 1886, 1889, 1890, 1893, 1894, 1896, 1898, 1899, 1900, 1902, 1903, 1905, 1908, 1910, 1914, 1917, 1918, 1924, 1927, 1931, 1932, 1995, 2009, 2010 and 2012 of 2016).

Syed Ali Imran, Advocate Supreme Court for Respondents (in C.As. Nos. 955 to 963 and 970 to 974 of 2016).

Abdul Razzaq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos. 888, 889 and 893 of 2016).

Rana Zahid Khan, Advocate Supreme Court along with Rai Akhtar Saleem for Respondents (in C.A. 920 of 2016).

Mian Muhammad Ashfaq, Advocate Supreme Court for Respondents.

Respondent in person (in C.As. Nos. 923, 1926, 1962 and 1985 of 2016).

Rana Munir Hussain, Advocate Supreme Court for Respondents (in C.As. Nos. 967 and 968 of 2016).

Babar Bilal, Advocate Supreme Court for Respondents (in C.A. No.1729 of 2016).

Amjad Iqbal, Advocate Supreme Court for Respondents (in C.A. No. 1883 of 2016).

Hasan Raza Pasha, Advocate Supreme Court for Respondents (in C.As. Nos. 1721 to 1724 of 2016).

Respondent in person (in C.As. Nos. 2223 to 2229 of 2016).

2019 S C M R 516

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Syed Mansoor Ali Shah, JJ

ABDUL WAHAB and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 155 and 156 of 2018, decided on 10th January, 2019.

(Against the judgment dated 21.12.2017 passed by the High Court of Balochistan, Sibi Bench at Quetta in Criminal Appeal No. (S) 53 of 2017 and Criminal Revision No. (S) 22 of 2017)

Penal Code (XLV of 1860)---

----Ss. 334 & 337-N(2)---Itlaf-i-udw---Cases in which qisas for hurt shall not be enforced---Punishment of imprisonment by way of Ta'zir---Scope---Accused and co-accused persons were alleged to have chopped off the right ear of the victim---After a regular trial the accused and co-accused persons were convicted by the Trial Court for an offence under S. 334, P.P.C. and were sentenced to rigorous imprisonment for five years and to pay Arsh equal to Diyat in equal shares to the victim---High Court upheld the convictions and sentences of co-accused persons recorded by the Trial Court whereas it enhanced the sentence of imprisonment passed by the Trial Court against the accused to rigorous imprisonment for seven years while maintaining the remaining punishment imposed upon him---Question as to whether the provisions of S. 337-N(2), P.P.C. stood attracted to the facts of the present case or not and if the said provisions were applicable then whether the punishments of imprisonment could have been passed against the accused and co-accused persons by way of Ta'zir or not---Held, that according to the provisions of S. 337-N(2), P.P.C. a punishment of imprisonment by way of Ta'zir could be passed against a convict only if the convict was "previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour"---Trial Court as well as the High Court did not observe anything about such credentials of the accused or co-accused persons in the present case---Moreover in a case pertaining to causing of hurt unless the provisions of S. 337-N(2), P.P.C. were attracted to the case of the convict he could not be awarded a sentence of imprisonment by way of Ta'zir---In the present, case the accused and co-accused persons had initially resorted to ineffective firing and no firearm injury had been received by any of the members of the complainant party---Doubt remained on record as to whether the ear was cut off by the accused through the use of a knife or it was bitten off by him---No serious motive was found on the part of the accused and co-accused persons and the asserted motive had never been proved through any independent evidence---Admittedly the accused and co-accused persons were not previous convicts and there was no evidence of their previous involvement in any criminal case---No issue of honour was involved in commission of the present offence---In such circumstances in terms of S. 337-N(2), P.P.C. the accused and co-accused persons could not have been punished with imprisonment by way of Ta'zir---Convictions of the accused and co-accused persons for the offence under S. 334, P.P.C. were maintained, the order passed by the Trial Court regarding payment of Arsh equal to Diyat in equal shares was modified in terms of the provisions of S. 337R, P.P.C., and the accused and co-accused persons were held to be liable to pay Arsh equal to one half of Diyat in equal shares, whereas the sentences of imprisonment by way of Ta'zir passed against them were set aside---Appeal was disposed of accordingly.

Ali Muhammad v. The State PLD 2009 Lah. 312; Mazhar Hussain v. the State and another 2012 SCMR 887 and Haji Maa Din and another v. The State and another 1998 SCMR 1528 ref.

Syed Ayaz Zahoor, Advocate Supreme Court for Appellants (in both cases).

Syed Baqar Shah, State counsel for the State (in both cases).

Zahoor-ul-Haq Chishti, Advocate Supreme Court for the Complainant (in both cases).

2019 S C M R 520

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ

MIR BAT KHAN---Petitioner

Versus

Mst. SHERIN BIBI and others---Respondents

Civil Petition No. 809-P of 2018, decided on 8th February, 2019.

(Against the judgment dated 12.11.2018 of the Peshawar High Court, Peshawar passed in Writ Petition No. 1783-P of 2018)

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

----S. 25---Custody of minor girl---Father worked as a labourer in a foreign country and the minor was looked after by her stepmother and a divorcee sister of the father---Father also had three children from his second wife---Mother had not married again after she was divorced by the husband---Family Judge interviewed the minor in court and it was observed that she did not recognize her mother---Fact that the child did not recognize her real mother should have alerted the First Appellate Court that the natural order had been disrupted; instead, this was used as a reason to deprive the mother of love of her daughter and the daughter of the love and care of her mother---High Court had directed the peaceful handing over of the minor to the mother but such direction had not been complied with even after three months, and the father continued to illegally retain the custody of the child---Resultantly, an innocent child continued to be deprived of the love and care of her mother---Supreme Court directed that the father was to immediately and peacefully hand over the minor girl to her mother, and in case he did not comply, the Social Welfare Department was to ensure that the child was handed over to her mother through an officer of the Department--- Petition for leave to appeal was dismissed and leave was refused.

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

----S. 25---Custody of minor---Mother financially dependent on her parents---Poverty on part of mother---Relevance---Plea on behalf of father that the mother lived with her parents and was financially dependent on them, therefore, presumably she was not able to support the minor---Held, that such presumption was contrary to law since the father was legally obliged to maintain his child---Poverty on the part of a lady was no ground to disentitle her from the custody of minor---Supreme Court directed the father to immediately and peacefully hand over the minor girl to her mother---Petition for leave to appeal was dismissed and leave was refused.

Razia Bibi v. Riaz Ahmad 2004 SCMR 821 ref.

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

----S. 25---Custody of minor---Matter of custody of minor decided by a 'jirga'---Legality---Jirga had no legal authority to decide the custody of children and in doing so it violated the law and Islamic Injunctions---Mother could not be compelled to part with her child by a jirga; she could not be called upon to barter the right to her child's custody to secure a divorce nor could a child be used to settle personal scores---Supreme Court directed the father to immediately and peacefully hand over the minor girl to her mother---Petition for leave to appeal was dismissed and leave was refused.

Al-Quran, Surah Al-Baqarah (2) verse 233 ref.

M. Amin Khattak Lachi, Advocate Supreme Court and M. Tariq Khan, Advocate-on-Record (Absent) along with Petitioner and Minor Girl for Petitioner.

Nemo for Respondents.

Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa on Court's Notice.

2019 S C M R 524

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

Sheikh AKHTAR AZIZ---Appellant

Versus

Mst. SHABNAM BEGUM and others---Respondents

Civil Appeals Nos. 149-L and 150-L of 2015, decided on 4th February, 2019.

(Against the judgment dated 13.03.2015 passed by the Lahore High Court, Lahore in R.S.As. Nos. 80 and 81 of 2013)

(a) Limitation---

----Delay, condonation of---Appeal against a consolidated judgment and decree between the parties barred by 2 days ('the first appeal')---Another appeal against the same judgment and decree and between the same parties not barred by time ('the second appeal')---Delay in filing the first appeal should ordinarily be condoned in such circumstances.

Bashir Ahmed v. Taja Begum PLD 2010 SC 906 ref.

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

----S. 12---Suit for specific performance of agreement---Agreement to sell not executed---Receipt for earnest money not sufficient to establish an agreement to sell---Suit property was owned by the defendant's wife, children and his brother---Defendant allegedly agreed to sell the property to the appellant/plaintiff for a certain consideration---Defendant allegedly received earnest money of Rs. 50,000 for the property from the plaintiff for which a receipt was provided to the plaintiff---Said receipt stated that an agreement to sell the suit property was required to be executed after ten days containing all necessary terms and conditions and detailed description of the property in question---No such agreement was ever executed between the parties---Once the defendant refused to sell the property to the plaintiff, the latter filed a suit for specific performance on basis of the receipt---Held, that the receipt did not inspire confidence as it contained no specific description of the property by metes and bounds; it had been signed by the defendant without specifically stating that he held a power of attorney on behalf of the original owners; it suffered from uncertainty; it had not been attested by two male witnesses; and, it had not been stamped in any form---Admittedly no agreement to sell was ever executed between the parties---Perusal of the receipt did not indicate any consensus between the owners and the buyer and there was no meeting of minds---Receipt was just a receipt showing that an amount of Rs.50,000/- had been paid subject to further steps, the most material of which was execution of a formal agreement containing all essential terms of sale---Receipt could be termed and treated as a contract, if four basic components could be spelt out from the same without ambiguity namely the identity of seller and purchaser; the amount of sale consideration; the identity and accurate description of the property agreed to be sold; and consensus ad idem between the parties to the agreement to sell an immovable property---Receipt, in the present case, only contained the amount of sale consideration and lacked the other three components, as such it was correctly not treated as an agreement by the High Court---Pleadings of the parties also did not establish any oral agreement between them---Law relating to oral agreement was quite clear, the terms and conditions which were orally agreed had to be stated in detail in the pleadings and had to be established through independent evidence which was neither the case of the plaintiff nor was it so set up before the lower fora---High Court had rightly refused to exercise its discretion in favour of the plaintiff---Supreme Court upheld the direction of the High Court whereby it directed that the sum of Rs.50,000/- admittedly paid to and received by the defendant be returned to the plaintiff along with mark up at the bank rate calculated from the date when it was paid till it was fully recovered---Appeals were dismissed in circumstances.

Bashir Ahmed v. Taja Begum PLD 2010 SC 906; Aziz Ahmed v. Muhammad Ramzan 2011 SCMR 921; Dilbar Jan v. Sohrab Khan 1992 SCMR 743; Ameer v. Shahadat 2005 SCMR 1147; Muhammad Yaqoob v. Feroze Khan 2003 SCMR 41 and Mubashir Ahmed v. Muhammad Shah 2011 SCMR 1009 distinguished.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Sale of immoveable property---Essential ingredients---Specific performance of agreement to sell---Scope---Essential elements for sale of immovable property were payment of sale price of the property or promise to pay the same by the buyer to the seller, and delivery of possession of the property---In case, said two essential terms of sale of immovable property could be determined with certainty on the basis of contents of the agreement between the parties, it may constitute a valid agreement of sale between the parties which, subject to discretion of the Court, could be directed to be specifically performed.

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

----S. 100---Second appeal---Scope---Where findings of fact arrived by Courts below were found to be based upon misreading, non-reading or misinterpretation of the evidence on record, the High Court could in second appeal reappraise the evidence and disturb the findings which were based on an incorrect interpretation of the relevant law---Courts could not shut their eyes where the lower fora had clearly misread the evidence and came to hasty and illegal conclusions.

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

----S. 12--- Specific performance of agreement to sell, relief of---Scope---Discretion of court---Relief of specific performance was discretionary in nature and despite proof of an agreement to sell, exercise of discretion could be withheld if the Court considered that grant of such relief would be unfair or inequitable.

Ghulam Farid Sanotra, Advocate Supreme Court for Appellant (in both cases).

Inayat Ullah Cheema, Advocate Supreme Court for Respondents (in both cases).

2019 S C M R 532

[Supreme Court of Pakistan]

Present: Mushir Alam and Mazhar Alam Khan Miankhel, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN, KARACHI---Petitioner

Versus

Messrs EAST WEST INSURANCE COMPAN through GM and others---Respondents

Civil Petitions Nos. 1191, 1192 and 1193 of 2017, decided on 12th February, 2018.

(Against the judgment dated 16.1.2017 passed by Lahore High Court, Lahore in Writ Petitions Nos. 23034, 15864 and 21910 of 2009)

(a) Administration of justice---

----Statutory authority---Order passed reversed/modified by a higher judicial forum---Statutory authority, whether it was exercising its original or appellate functions under an enactment, could not challenge an order passed by a higher judicial forum either created under the law or constitutional dispensation whereby and where under its judgment and/or order was reversed or modified.

(b) Insurance Ordinance (XXXIX of 2000)---

----Ss. 125 & 130(2)---Constitution of Pakistan, Art. 199---Order passed by Insurance Ombudsman or Securities and Exchange Commission challenged before the High Court/Supreme Court---"Aggrieved person"---Scope---Where an insurance company, or the official of an insurance company or complainant was aggrieved by the decision of Securities and Exchange Commission (SECP), only course available to an aggrieved party was to invoke jurisdiction of judicial review of High Court under Art. 199 of the Constitution---Neither the Insurance Ombudsman nor SECP was required to come forward to justify and or defend its order before the High Court or Supreme Court as the case may be, as it was for the person aggrieved to pursue the remedy any further.

Syed Yakoob v. K.S. Radhakrishnan and others AIR 1964 SC 477; Mohtesham Mohd. Ismail v. Spl. Director Enforcement (2007) 8 Supreme Court Cases 257 and M.S. Kazi v. Muslim Education Society and others (2016) 9 Supreme Court Cases 263 ref.

Syed Hamid Ali Shah, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2019 S C M R 537

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Syed Mansoor Ali Shah, JJ

Syed AZHAR HUSSAIN SHAH and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 201 and 202 of 2018, decided on 10th January, 2019.

(Against the judgment dated 28.03.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Revisions Nos.382 and 428 of 2016)

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

----Ss. 28, 29, 30 & 34 & Second Sched.---Penal Code (XLV of 1860), Ss. 324, 334 & 336---Magistrate (First class)---Power to try offences under Ss. 324, 334 & 336, P.P.C.---Scope---According to the Second Schedule to the Code of Criminal Procedure, 1898 ("Cr.P.C.") an offence under S. 324, P.P.C. was triable by a Court of Session---Said Schedule had been appended to Cr.P.C. by virtue of the provisions of S. 28, Cr.P.C. whereas S. 30, Cr.P.C. clearly provided that notwithstanding anything contained in Ss. 28 & 29, Cr.P.C., the Provincial Government may invest any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death---In the present case, the trial of the accused was conducted by a Magistrate invested with such power under S. 30, Cr.P.C. and, thus, there was no jurisdictional infirmity vis-à-vis the authority of the concerned Magistrate to try the accused for offences under Ss. 324, 334 & 336, P.P.C.---Section 34, Cr.P.C. provided that the Court of a Magistrate specially empowered under S. 30, Cr.P.C. may pass any sentence authorized by the law except the sentence of death or imprisonment for a term exceeding seven years but such limitation on the sentence to be passed by a Magistrate only regulated the punishment and not the jurisdiction of the Magistrate to try an offence---Appeal was dismissed in circumstances.

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

----S. 299---Diyat---Scope---By virtue of the provisions of S. 299, P.P.C., diyat was relevant only to a case of death of a victim.

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

----Ss. 324, 334 & 336---Qatl-i-amd, itlaf-i-udw, itlaf-i-salahiyyat-i-udw---Reappraisal of evidence---Occurrence had taken place in broad daylight---First Information Report had been lodged with sufficient promptitude and the accused had been named in the FIR as the principal perpetrator of the alleged offences---Firearm injuries on the thigh, penis and below the belly of the victim had been attributed to the accused in the FIR---Eye-witnesses produced by the prosecution included the injured victim and the ocular account furnished by the victim and a prosecution witness was consistent and the same had found full support from the medical evidence---Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then rightly concurred in their conclusion regarding guilt of the accused having been proved to the hilt---Convictions and sentences of the accused recorded by the Appellate Court were upheld and maintained and it was directed that all his sentences of imprisonment shall run concurrently to each other---Appeal was dismissed.

Hassan Raza Pasha, Advocate Supreme Court for Appellants (in Cr. A. 201 of 2018).

Asadullah Khan Chamkani, Advocate Supreme Court for Appellants (in Cr. A. 202 of 2018).

Malik Waheed Anjum, Advocate Supreme Court for the Complainant (in both cases).

Syed Nayyab Hussain Gardezi, Deputy Attorney-General for Pakistan, Barrister Ghulam Shabbir Shah, Additional Advocate-General, Sindh, Salim Akhtar, Additional Prosecutor-General, Sindh, Ayaz Sawati, Additional Advocate-General, Balochistan, Qasim Ali Chohan, Additional Advocate-General, Punjab, Ahmed Raza Gillani, Additional Prosecutor-General, Punjab, Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa and Syed Baqaq Shah, State Counsel on Court's Notice (in both cases).

2019 S C M R 542

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Sajjad Ali Shah and Munib Akhtar, JJ

TALAL AHMED CHAUDHRY---Appellant

Versus

The STATE---Respondent

Intra Court Appeal No. 7 of 2018 in Criminal Original Petition No. 9 of 2018, decided on 9th October, 2018.

(Against the order dated 2.8.2018 passed by this Court in Crl. Original Petition No. 9 of 2018)

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

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)---Contempt of Court, proceedings for---Object and purpose---Object and the ultimate purpose in the mind of the Court while initiating contempt proceedings was not to afford protection to the judges from imputation to which they might be exposed personally as individuals or to satisfy the ego of a judge by punishing such person, instead, it was to maintain and strengthen the confidence of the public in general and the litigants, in the Court and to vindicate the honor and dignity of the Court to ensure that the administration of justice was not diminished or weakened.

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

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Apology/repentance by contemnor---Bona fides of contemnor---Courts in the matter of contempt tended to show grace and magnanimity towards the alleged contemnor in cases where the contemnor without justifying his action/statement showed his repentance, remorse and at the earliest opportunity submitted an unconditional apology by throwing himself at the mercy of the Courts---Said rule, however, was not a rule of thumb and could not be applied to every case as an apology tendered did not automatically purge the contemnor of the contempt and may not necessarily be accepted unless the Court from the surrounding circumstances was satisfied about the bona fide of the contemnor.

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

----Ss. 3 & 5---Constitution of Pakistan, Arts. 63(1)(g) & 204(2)---Contempt of Supreme Court---Abusive language used against the Supreme Court and its judges in public speeches---Apology by contemnor---Lack of remorse, sincerity and bona fides in apology---Appellant-contemnor, who was a Minister at the relevant time, was convicted under Ss. 3 & 5 of the Contempt of Court Ordinance, 2003 ('the Ordinance') and was sentenced to imprisonment till the rising of the Court with a fine of Rs.100,000, and he was also disqualified under Art. 63(1)(g) from being a member of Parliament for a period of five years---Offending words uttered by the contemnor in his speeches were prejudicial to the integrity and independence of the judiciary of the country and detrimental to the safe administration of justice besides tending to bring the Supreme Court and its judges into disrespect and ridicule---Offending words were used by the contemnor in speeches that were delivered soon after the then Prime Minister, who belonged to the same ruling party as the contemnor, was disqualified by the Supreme Court---In order to show their allegiance with the disqualified Prime Minister, some members of his political party, including the contemnor, started a campaign of maligning the Office of the Chief Justice of the Supreme Court and other Judges in public gatherings and on electronic media---Contemnor deliberately and intentionally, in such background, through the stated utterances, attacked the integrity and independence of the judiciary to please and support his leader with the sole intent to ridicule and lower the respect and to shake the confidence of people at large from the safe administration of justice---In such circumstance, the utterance made by the contemnor could by no stretch of imagination be termed as bona fide or considered as something highlighting a genuine issue to earn him leniency in his punishment---Contemnor throughout the contempt proceedings had been trying to justify his offending statement by taking different pleas and even the apology was tendered in case his justification with regard to the offending statement was not accepted---Apology tendered neither contained genuine remorse nor sincerity and it was being used by the contemnor as a fall back to get out of a difficult situation that he found himself in for having used intemperate and contemptuous language against the highest Court of the country and its Judges---Contempt committed by the contemnor was so grave that the apology was not sufficient to purge the contempt---Record also reflected that the contemnor in his S. 342, Cr.P.C. statement refused examination under oath to show his bona fide and to explain what exactly he meant by his utterances---Intra-court appeal filed by contemnor was dismissed in circumstances.

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

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)---Contempt of court---Unconditional apology by contemnor---Scope---Apology has to consist of acknowledgement of commission of contempt and an unequivocal expression of regret for such commission.

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

----Ss. 3 & 5---Constitution of Pakistan, Arts. 19 & 204(2)---Freedom of speech---Scope and restrictions---Contempt of court---Right to freedom of speech and expression as guaranteed under Art. 19 of the Constitution was not absolute, unlimited or unfettered but subject to reasonable restrictions imposed by the law and one such restriction so imposed was in relation to the contempt of Court---Protective cover so provided to freedom of speech and expression could not be stretched to cover a speech, comment or publication which may tend to influence, impede, embarrass or obstruct the administration of justice, scandalize the Court and bring the Judges of the Supreme Court into hatred, ridicule or contempt.

Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 and Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 ref.

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

----Ss. 3 & 5---Constitution of Pakistan, Arts. 19 & 204(2)---Freedom of speech---Scope and restrictions---Contempt of court---When a contemnor had crossed the boundary of decency and morality by a calculated move with an aim to obstruct and diminish the administration of justice, he could not be allowed to escape the consequences (of contempt of court) by pleading freedom of speech and expression.

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

----S. 225---Charge, framing of---Omission or defect in framing of charge---Effect---Such omission or defect which did not mislead or prejudice the right of the accused could not be regarded as material and made the basis to vitiate a trial on the ground of error or omission in framing charge; it did not even make a case of remand.

Nadir Shah v. The State 1980 SCMR 402; S. A. K. Rehmani v. The State 2005 SCMR 364; M. Younus Habib v. The State PLD 2006 SC 153 and Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17 ref.

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

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)---Criminal Procedure Code (V of 1898), S. 342---Contempt of court, proceedings for---Nature---Apology/repentance by contemnor---Burden of proof---Proceedings for contempt of Court were sui generis in their nature and being unique and one of a kind, contained some elements of both civil and criminal trial---Principle of criminal trial that the burden of proof barring few exceptions never shifted to the accused, hardly had any application in contempt proceedings---In such cases once the prosecution had brought on record all the incriminating and contemptuous material attributed to the alleged contemnor and confronted him while recording his statement under S. 342, Cr.P.C., then the burden shifted to the alleged contemnor to prove his innocence by showing his bona fide and proving that the offending statement was never meant to undermine the authority or obstruct/embarrass the administration of justice.

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

----S. 7(2), second proviso---Plaint, contents of---List of the witnesses to contain a summary/gist of the evidence to be adduced by such witness[requirement under S. 7(2) of the Family Courts Act, 1964]---Directory nature of requirement---Requirement laid down by S. 7(2) of the Family Courts Act, 1964 was only directory in nature as instead of providing penal consequences for its non-compliance, it specifically through its second proviso empowered the Court to permit the parties to call any witness at any later stage if the Court considered that the evidence of such witness was in the interest of justice.

Kamran Murtaza, Senior Advocate Supreme Court along with Talal Ahmed Chaudhry for Appellant.

Ch. Aamir Rehman, Additional Attorney-General for the State.

2019 S C M R 556

[Supreme Court of Pakistan]

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

GOVERNMENT OF SINDH through Secretary Health Department and others---Appellants

Versus

Dr. NADEEM RIZVI and others---Respondents

Civil Appeals Nos. 125-K to 131-K, 2306 to 2309 of 2016, Civil Miscellaneous Applications Nos. 1254-K, 8973 of 2018 and Civil Petition No. 2312-L of 2018, decided on 17th January, 2019.

Per Ijaz ul Ahsan, J; Mian Saqib Nisar, CJ, Umar Ata Bandial and Faisal Arab, JJ agreeing; Maqbool Baqar, J, dissenting.

Constitution of Pakistan---

----Arts. 9, 274 & Fourth Sched., Pt. I, Entries Nos. 16 & 32---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Case pertaining to Sheikh Zayed Medical Complex, Lahore ("SZMC"); Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); and National Museum of Pakistan, Karachi ("NMP")---[Per Ijaz ul Ahsan, J (Majority view): Constitutive instruments including the trust deed through which "SZMC" was established clearly and unambiguously provided that the main purpose for setting up "SZMC" was for research and professional and technical training of doctors and related medical staff---In such circumstances the case of the "SZMC" was clearly covered under Entry No.16 of the Federal Legislative List---Further, the "SZMC" had been transferred by the Federal Government (to the province) without due application of mind, examining the constitutional position and without following the necessary legal procedures---Case of "JPMC", "NICVD", "NICH", and "NMP" also showed complete lack and absence of application of mind on the part of the Federal Government---Requisite legal procedures were not followed, and the real intent, import and impact of the Eighteenth Constitutional Amendment was ignored and misinterpreted---Furthermore Entry No.37 of the Federal Legislative List permitted the Federal Government to undertake projects in any of the Federating Units for its purposes---Power of the Federation to set up, run and operate projects including hospitals and related research facilities where enforcement of Fundamental rights was involved was an obligation of the Federal Government under the Constitution---In the present case, enforcement of right to life was involved which was one of the most fundamental of the Fundamental rights---To curtail or circumscribe the power of the Federal Government to enforce Fundamental rights guaranteed by the Constitution would be anathema for the concept of Federalism]---[Per Maqbool Baqar, dissenting (Minority view): Spirit and essence of a Federal Constitution was the distribution of legislative powers between the Federation and the Provinces---Subject of public health and public hospitals had throughout the legislative history of the country remained exclusively with the Provinces, sometimes by enumeration in the provincial legislative list, and at times by way of residuary powers, and had never been with the Federation---After the Eighteenth Amendment to the Constitution, the Constitution contained only one legislative list, i.e. the Federal Legislative List, and since the subjects of public health and public hospitals were not found on the said list, the said subjects fell within the legislative competence and executive authority of the Provinces only---Federal Legislative List through Entry No.37 mentioned "works, lands and buildings", vested in, or in possession of Federal government for the "purposes" of Federation as federal subjects, however, such property and assets, should cater for federal purposes and not for those of the provinces---Since public health and public hospital were exclusively provincial subjects, any such facility/ asset could not be deemed as for federal "purposes" and could by no stretch of imagination be treated as a federal subject---Relevance and significance of the "purpose" attributed to any property and/or asset was evident from the provisions of Art. 274 of the Constitution which provided that all properties and assets, which on the commencement of the Constitution, vested in the Federal government, shall, in case they, on the commencing day, were to be used for the "purposes" of a Provincial government, shall become properties of the said Provincial government---In order to maintain and preserve the federal nature of the Constitution, effort should be made to interpret the Constitutional provisions so as to preserve the Provincial autonomy rather than to dilute the same]---Supreme Court declared the transfer/devolution of SZMC, JPMC, NICVD, NICH, and NMP (to the provinces) to be unconstitutional, without lawful authority and of no legal effect and gave directions to that effect.

Supreme Court after declaring the transfer/devolution of Sheikh Zayed Medical Complex, Lahore ("SZMC"), Jinnah Postgraduate Medical Center, Karachi ("JPMC"), National Institute of Cardiovascular Diseases, Karachi ("NICVD"), National Institute of Child Health, Karachi ("NICH"), and National Museum of Pakistan, Karachi ("NMP") from the Federation to the Provinces as unconstitutional, without lawful authority and of no legal effect gave the following directions:

(i) All acts done or orders, directions, notifications and directives issued or made pursuant to the purported transfer/devolution or to give effect to the same in any manner whatsoever, which were inconsistent with or in derogation of the tenor of the present order to the extent of inconsistency were without lawful authority and of no legal effect;

(ii) Within 90 days of present judgment, the Federal and Provincial Governments and all related Departments shall take all necessary steps relating to return of the subject institutions from the Provinces to the Federation. The position of these institutions shall as far as possible be restored to the position as on the date when they were transferred to the Provinces. Restoration and return of said institutions shall include resumption of the employees by the Federation and all serving or retired officers, employees or servants thereof. In case, the said exercise could not be completed within the period of 90 days and an extension was required, any of the Governments could move appropriate application before the Supreme Court seeking extension for reasons spelt out in the application;

(iii) Till such time as the exercise of restoration and return was completed, all matters relating to the institutions shall continue on the same basis as on the date of present judgment including but not limited to financial and budgetary matters, disbursement, outlays and expenditures including disbursement relating to payment of salaries, pensions and related matters;

(iv) All ongoing projects/contracts in which partial payments had been made shall be taken over by the Federation and balance payments shall be made by it. However, all contracts completed within the past one year and equipment supplied in the same period which had actually arrived at the institutions or was in the process of being supplied or had already been installed shall be paid for/reimbursed to the Provinces by the Federation;

(v) In case, the Federation and any of the Provinces were unable to resolve any matter, with regard to compensation or payments to be made, the same shall be deemed to be a dispute between the Provinces and the Federation. In that case, the aggrieved party shall be entitled to seek its remedy in accordance with the Constitution and the law;

(vi) All statutory instruments including Acts and Ordinances passed or issued in relation to the institutions in question shall stand suspended. Nothing in the Provincial Laws shall in any manner hinder, restrict or impede or otherwise affect the return of any of the institutions to the Federation;

(vii) A committee shall immediately be constituted for working out the modalities for smooth, trouble free and seamless transition and transfer of the institutions from the Provinces to the Federation and to deal with and make recommendations regarding all aspects of such transfer including terms and conditions of employment, seniority, assimilation, etc in the service of the Federation and all other matters directly, indirectly or incidentally relating to the same. In case, a need arose, the Federal Government shall initiate such legislation as may be necessary for the effective completion and operation of the institutions; and

(viii) The Federal Government shall also allocate and disburse such funds as may be necessary to maintain the level of services being provided in the institutions presently and to progressively improve the environment and running of all Institutions in a more efficient, effective and patient friendly manner.

Salman Talib-ud-Din, A.G. Sindh, Farooq H. Naek, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos. 125-K to 131-K of 2016).

Salah-ud-Din Ahmed, Advocate Supreme Court and Prof. S.M. Tariq, V.C. JSMU, Karachi for Appellants (in C.A. 2306 of 2016).

Raza Rabbani, Advocate Supreme Court and Salim Saleem Ansari, Advocate Supreme Court for Appellants (for NICV in C.A. No.2307 of 2016).

Haider Waheed, Advocate Supreme Court for Appellants (in C.As. Nos. 2308 and 2309 of 2016).

Zafar Iqbal Chaudhry, Advocate Supreme Court for Appellants (in C.P. No. 2312-L of 2018).

Barrister Umaima Anwar, Advocate (with permission of the Court) for Respondents (in C.As. Nos. 125-K and 129-K of 2016).

Salim Saleem Ansari, Advocate Supreme Court for Respondents (for NICV in C.As. Nos. 2306 and 2309 of 2016).

M. Iqbal Chaudhry, Advocate-on-Record for Respondents (in C.A. 127-L of 2016).

Abdul Rauf Rohaila, Advocate Supreme Court for Respondents (in C.A. 2306 of 2016).

Sajid Ilyas Bhatti, Additional A.G.P. and Khurram Saeed, Additional A.G.P. for Respondents.

Capt. (Retd.) Zahid Saeed, Secy. M/o NHSR&C and Asif Sohail, Dir. Litigation M/p NHSR&C for Respondents.

Raja Abdul Ghafoor, Advocate-on-Record for HEC (in C.A. No. 2306 of 2016).

Hamid Khan, Senior Advocate Supreme Court, Ahmed Awais, A.G. Punjab and Qasim Ali Chohan, Additional A.-G. Punjab for Respondents (in C.P. 2312-L of 2018).

Dr. Seemi Jamali, Executive Director, JPMC, Prof. A.R. Jamali, JPMC, Prof. Dr. Kausar Amir, JPMC, Dr. Riaz Gill, JPMC and Dr. M. Attique for Respondents.

Dates of hearing: 3rd, 4th and 7th January, 2019 (Judgment Reserved).

SHORT ORDER

IJAZ UL AHSAN, J.---For detailed reasons to be recorded later, by a majority of four against one (Maqbool Baqar, J dissenting) these appeals are dismissed.

1. The case of Sheikh Zayed Medical Complex, Lahore ("SZMC"), is relatively simple and straightforward. Our attention has been drawn to its constitutive instruments including the trust deed through which it was established. It clearly and unambiguously provides that the main purpose for setting up SZMC was for research and professional and technical training of doctors and related medical staff. That being the case, we are in no manner of doubt that the case of the SZMC is clearly covered under Entry No.16 of the Federal Legislative List. Further, the SZMC has been transferred by the Federal Government without due application of mind, examining the constitutional position and without following the necessary legal procedures.

2. The case of Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"), and National Museum of Pakistan, Karachi ("NMP") also shows complete lack and absence of application of mind on the part of the Federal Government. The requisite legal procedures were not followed. The real intent, import and impact of the Eighteenth Constitutional Amendment was ignored and misinterpreted.

3. We are conscious of the fact that there is a balance of powers between the Federation and the Provinces as spelt by the Constitution of the Islamic Republic of Pakistan, 1973 which grants provincial autonomy in specified areas. The provincial autonomy granted by the Constitution deserves the highest respect and is sacrosanct. However, at the same time, a declaration to the effect that the aforenoted Institutions have been transferred by the Federal Government to the Provinces without following due process of law, application of mind and in a mechanical manner does not by any stretch of the imagination impinges upon or encroaches the provincial autonomy granted by the Constitution.

4. In the above context, the contents of Entry No.37 of the Federal Legislative List are also significant. These permit the Federal Government to undertake projects in any of the Federating Units for its purposes. However, in such circumstances, the Provinces have full authority to perform the executive and regulatory function. They can enact and enforce legislation involving such projects and implement and enforce the same within its territorial limits. This judgment, however, does not in any manner obstruct, deny or curtail the power of the Federal Government to transfer any project, works, lands or buildings owned and controlled by it to any of the Provinces. However, such transfer must be undertaken in accordance with law, through a legal instrument specifying the terms and conditions on the basis of which such transfer is to take place and the nature and duration of such transfer.

5. We find that the power of the Federation to set up, run and operate projects including hospitals and related research facilities where enforcement of fundamental rights is involved is an obligation of the Federal Government under the Constitution. In the instant case, enforcement of right to life is involved which is one of the most fundamental of the fundamental rights. To curtail or circumscribe the power of the Federal Government to enforce Fundamental Rights guaranteed by the Constitution would be anathema for the concept of Federalism. The performance of its positive obligations under the fundamental rights, for example right to life, prevention of slavery, forced labour, human trafficking, etc constitute a "purpose" of the Federation for which it can carry out projects throughout Pakistan. For performance of the said purpose, it is not necessary to look into the legislative list when the main body of the Constitution provides the requisite powers. Refer to Province of Sindh v. MQM (PLD 2014 SC 531). We however reiterate that in doing so in the territorial jurisdiction of a Province, the projects and institutions of the Federal Government shall be subject to the Provincial Laws and regulatory control. Consequently, neither the legislative nor executive authority of the Provinces in relation to the subject of hospitals is encroached upon.

6. While upholding and reiterating the declarations and orders passed in the impugned judgment, we declare as follows:-

i. Transfer/devolution of SZMC, JPMC, NICVD, NICH, and NMP is declared to be unconstitutional, without lawful authority and of no legal effect;

ii. All acts done or orders, directions, notifications and directives issued or made pursuant to the purported transfer/devolution or to give effect to the same in any manner whatsoever, which are inconsistent with or in derogation of the tenor of this order to the extent of inconsistency are declared to be without lawful authority and of no legal effect;

iii. Within 90 days of this judgment, the Federal and Provincial Governments and all related Departments shall take all necessary steps relating to return of the aforenoted Institutions from the Provinces to the Federation. The position of these Institutions shall as far as possible be restored to the position as on the date when they were transferred to the Provinces. It is, however, clarified that the restoration and return as aforesaid shall include resumption of the employees by the Federation in relation to the Institutions and all serving or retired officers, employees or servants thereof In case, the aforesaid exercise cannot be completed within the aforenoted period of 90 days and an extension is required, any of the Governments can move appropriate application before this Court seeking extension for reasons spelt out in the application;

iv. Till such time as the aforesaid exercise is completed, all matters relating to the Institutions shall continue on the same basis as on the date of this judgment including but not limited to financial and budgetary matters, disbursement, outlays and expenditures including disbursement relating to payment of salaries, pensions and related matters;

v. All ongoing projects/contracts in which partial payments have been made shall be taken over by the Federation and balance payments shall be made by it. However, all contracts completed within the past one year and equipment supplied in the same period which had actually arrived at the Institutions or in the process of being supplied or has already been installed shall be paid for/reimbursed to the Provinces by the Federation;

vi. In case, the Federation and any of the Provinces are unable to resolve any matter, with regard to compensation or payments to be made, the same shall be deemed to be a dispute between the Provinces and the Federation. In that case, the aggrieved party shall be entitled to seek its remedy in accordance with the Constitution and the law;

vii. All statutory instruments including Acts and Ordinances passed or issued in relation to the aforenoted Institutions shall stand suspended. Nothing in the Provincial Laws shall in any manner hinder, restrict or impede or otherwise affect the return of any of the aforenoted Institutions to the Federation;

viii. A committee shall immediately be constituted for working out the modalities for smooth, trouble free and seamless transition and transfer of the aforenoted Institutions from the Provinces to the Federation and to deal with and make recommendations regarding all aspects of such transfer including terms and conditions of employment, seniority, assimilation, etc. in the service of the Federation and all other matters directly, indirectly or incidentally relating to the same. In case, a need arises, the Federal Government shall initiate such legislation as may be necessary for the effective completion and operation of the aforenoted Institutions; and

ix. The Federal Government shall also allocate and disburse such funds as may be necessary to maintain the level of services being provided in the aforenoted Institutions presently and to progressively improve the environment and running of all Institutions in a more efficient, effective and patient friendly manner.

Sd/-

Mian Saqib Nisar, C.J., | | | | --- | --- | | Sd/- Umar Ata Bandial, J | My short note of dissent is appended hereto Sd/- Maqbool Baqar, J | | Sd/- Faisal Arab, J | Sd/- Ijaz ul Ahsan, J |

MAQBOOL BAQAR, J.---I have had the privilege of going through the short order authored by my brother Ijaz ul Ahsan, J., but have not been able to persuade myself to concur with the same, however because of extreme paucity of time I am unable to write a note containing my reasons for disagreement, and for now would only state that Pakistan is a Federal Republic. Our constitution has conferred certain enumerated powers on the federal government and the residuary powers on the provinces. The very spirit and essence of a Federal Constitution is the distribution of legislative powers between the federation and the provinces. The subject of public health and public hospitals has throughout our legislative history remained exclusively with the provinces. Sometime by enumeration in the provincial legislative list, and at times by way of residuary powers, and have never been with the federation. Under the 1973 Constitution also, which now, as a consequence of the 18th Constitutional Amendment, contains only one legislative list, being" federal legislative list, also confers such powers and authority on the provinces, as the same again do not find place in the federal list, and therefore the subjects of public health and public hospitals fall within the legislative competence and executive authority of the provinces only. The federal legislature undoubtedly lacks legislative competence and executive authority in relation to the said subjects. Article 142(c) clearly prohibits the parliament from legislating on the subjects not mentioned in the Federal legislative list.

Indeed the Federal Legislative List through entry No.37 mentions "works, lands and buildings", vested in, or in possession of federal government for the "purposes" of Federation as federal subjects, however, such property and assets, as is obvious from the language of the said entry itself, should be catering for federal purposes and not for those of the provinces, and as noted earlier, public health and public hospital exclusively being provincial subjects, any of their facility/ asset cannot be deemed as for federal "purposes" and can by no stretch of imagination be treated as federal subjects. The relevance and significance of the "purpose" attributed to any property and/or asset is evident from the provisions of Article 274 of the present constitution which provides that all properties and assets, which on the commencement of the constitution, vested in the federal government, shall, in case they, on the commencing day, were to be used for the "purposes" of a provincial government, shall become properties of the said provincial government.

2019 S C M R 565

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

SUO MOTU ACTION TAKEN BY HCJ REGARDING SERVICE STRUCTURE OF PAKISTAN KIDNEY AND LIVER INSTITUTE (PKLI): In the matter of

Suo Motu Case No. 19 of 2018, decided on 28th February, 2019.

(Suo motu action taken by HCJ regarding service structure of Pakistan Kidney and Liver Institute (PKLI))

Pakistan Kidney and Liver Institute and Research Center Act, 2014 (II of 2015)--

----Ss. 5, 8 & 11---Suo motu action---Pakistan Kidney and Liver Institute ('the Institute')---Alleged misappropriation of funds---Ban on foreign travel of the Chief Executive/President of the Institute and appointment of an ad hoc Committee to run affairs of the Institute---Supreme Court directed that the ban on the foreign travelling of the Chief Executive of the Institute through orders of the Supreme Court was recalled, however, the relevant authorities, if they deemed appropriate, may determine and decide the matter of imposition of ban on the foreign travelling of the Chief Executive, strictly in accordance with law; that the Institute shall be managed and run in accordance with the provisions of the Pakistan Kidney and Liver Institute and Research Center Act, 2014 ('the Act') and the ad hoc Committee so constituted by orders of the Supreme Court to manage and run the affairs of the Institute stood disbanded immediately; that the persons aggrieved of the inquiry report prepared by the Anti-Corruption Establishment (ACE) into the affairs of the Institute that had been submitted before the Court may voice their grievance before the appropriate forum under the law, however, if any such grievance was voiced, the said forum shall decide the same strictly in accordance with law without being influenced/prejudiced by any observations/directions/ orders passed by the Supreme Court during the hearing of the present matter---Suo motu action was disposed of with the said directions.

In Attendance:

Imtiaz Ahmad Kaifi, Additional A.-G. Punjab.

Saqib Zafar, Secretary, Specialized Health Punjab.

Shakeel Ahmad, Special Secretary, Health Punjab.

Habib ur Rehman Gillani, Secretary P&D Punjab.

Barrister Maryam Mustafa, Legal Advisor, P&D Board.

Khaliq uz Zaman, DPG NAB.

Abdul Rab, Additional DG ACE Punjab.

Hamid Khan, Senior Advocate Supreme Court along with Dr. Saeed Akhtar.

Naeem Bukhari, Advocate Supreme Court for ZKB.

Dr. Ilyaz Zafar, Advocate Supreme Court for NESPAK.

Salman Akram Raja, Advocate Supreme Court for Yawar Abbas Gillani.

Nemo for CEO, IDAP.

2019 S C M R 567

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Mazhar Alam Khan Miankhel, JJ

GHULAM SARWAR (DECEASED) through LRs and others---Petitioners

Versus

GHULAM SAKINA---Respondent

Civil Petitions Nos. 466-L, 467-L and 522-L of 2018, decided on 11th January, 2019.

(On appeal from the judgments dated 11.12.2017 passed by the Lahore High Court, Multan Bench, Multan in C.Rs. Nos. 481-D, 482-D of 2009 and C.R. No. 587-D of 2009)

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

----O. XXIII, R. 3---Judgment/order passed with consent of the parties---Such judgment/order could not be challenged by any of the parties.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Sale mutations, genuineness of---Proof---Illiterate lady---Fraudulent and sham transactions---Petitioners/vendees were the beneficiaries of the alleged sales and they were supposed to prove and establish the genuineness of sales in their favour---Only evidence on behalf of petitioners available on the record was the statement of son of one of the alleged vendees/petitioners---Said statement was nothing less than a hearsay statement as it was made by a person who himself was not the witness of the alleged transactions---Claim of petitioners that marginal witnesses of the mutations were not produced before the court as they had died would not discharge the burden on the petitioners---Nothing on record established that said witnesses had died---Neither the revenue officials were produced nor any person before whom the transaction of sale took place or before whom sale consideration was paid---Record also did not indicate whether any well-wisher of the vendor, who was an illiterate lady, was present at the time of the alleged transactions---Attestation of mutations was delayed for many months without any justified explanation for such delay---Suit filed by vendor-lady challenging the sale mutations was rightly decreed by the appellate Court---Petition for leave to appeal was dismissed and leave was refused.

(c) Punjab Land Revenue Act (XVII of 1967)---

----S.42---Qanun-e-Shahadat (10 of 1984), Preamble---Sale mutation---Scope---Mutation per se was not a document of title and was meant for fiscal purpose only---To prove a transaction appearing/embodied in a mutation, some strong piece of evidence was required under the Qanun-e-Shahadat, 1984.

(d) Co-sharer---

----Possession of one co-sharer was considered as possession of all the co-sharers.

(e) Limitation---

----Litigation between co-sharers---No question of limitation would arise against a co-sharer as every co-sharer was presumed to be in possession of every inch of the joint property.

Malik Matee Ullah, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record (Absent) for Petitioners (in all cases).

Nemo for Respondent.

2019 S C M R 572

[Supreme Court of Pakistan]

Present: Mansoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD ARSHAD and another---Petitioners

Versus

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

Criminal Petition No. 1299 of 2018, decided on 6th February, 2019.

(Against the Order dated 05.11.2018 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 234263-B of 2018)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, 149 & 427---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, mischief causing damage to the amount of fifty rupees---Bail, grant of---Further inquiry---Accused persons sought bail on the ground that on the relevant date and time of the incident in question, they were confined in jail in connection with other cases---Police confirmed that on the relevant date and time, both the accused persons were confined in jail, however, as per police investigation, they were responsible to the extent of conspiracy/abetment of the present offence---Prosecution and complainant were not able to point out any evidence from the record regarding conspiracy/abetment by the accused persons---Worth and evidentiary value of the plea of alibi taken by the accused and their involvement in the present case to the extent of conspiracy/abetment was to be determined by the Trial Court, after recording evidence of the parties---Presently case against the accused persons called for further inquiry within the ambit of S. 497(2), Cr.P.C., and accordingly they were released on bail.

S.A. Raza Khan Qasuri, Advocate Supreme Court, Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Ch. Muhammad Sarwar Sidhu, Additional P.-G., Mumtaz Ahmed, DPO and Shahid Nisar, I.O. for Respondents Nos. 1-3.

Ch. Munir Sadiq, Advocate Supreme Court and Syed Ali Imran, Advocate Supreme Court for Respondent No.4.

2019 S C M R 574

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

SAMI PHARMACEUTICALS (PVT.) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No. 458-K of 2015, decided on 7th February, 2019.

(On appeal against the judgment dated 09.05.2015 passed by the High Court of Sindh, Karachi in C.P. No. D-2271 of 2011)

Per Faisal Arab, J; Mushir Alam, J, agreeing; Munib Akhtar, J dissenting.

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

----Ss. 19 & 31A---Sales Tax Act (VII of 1990) S. 13(2)(a)---Exemption from customs duty and sales tax under SRO No.575(I)/2006 dated 5.6.2006---Import of "Air Handling Units"---Certification by Engineering Development Board of Pakistan (EDB)---Procedure---Petitioner-company imported 'Air Handling Units' and sought concession on customs duty and exemption from sales tax under SRO No.575(I) 2006 dated 05.06.2006 on the ground that the 'Air Handling Units' imported were of such specification that were not manufactured locally---[Per Faisal Arab, J (Majority view): Exemption from customs duty and sales tax could not be claimed under SRO No.575(I)/2006 in case the item was either listed in the locally manufactured items notified through a Customs General Order (CGO) issued by the Federal Board of Revenue or certified by the Engineering Development Board of Pakistan (EDB) that the item in question was locally manufactured---In order to confirm whether exemption granted under SRO No.575(I)/2006 on an item was available or not one could take recourse to CGOs issued from time to time or seek certification from the EDB---Apart from seeking recourse to CGO, the need to seek certification from EDB seemed to have arisen as there was a strong possibility that a name of local manufacturer of a particular item may not have been updated in the CGO hence not reflecting the latest position of the local industry---Under SRO No.575(I)/2006, EDB had been entrusted with the function to certify whether an item was also locally manufactured which was done by gathering information from the local industry---Any person including the Customs Authorities could seek such certification---EDB's certification only confirmed a pre-existing position i.e. an item was or was not locally manufactured---In case EDB certified that imported item was also locally manufactured, exemption under SRO No.575(I)/2006 would be denied---After such certification the fact that a particular item may not have been listed in the CGO as a locally manufactured item would be of no legal consequence---Date on which certificate was issued by the EDB could not be taken as the date on which an item had become a locally manufactured item---Where a letter of credit was opened for import of an item which was already being locally manufactured and such pre-existing factual position was later certified by the EDB, it was good enough to disentitle an importer to claim exemption under SRO No.575(I)/2006---Timing of seeking certification from EDB would be immaterial in such circumstances---Only exception to this could be that the local manufacture of an item was so recent that it could not have been ordered from the local market when the letter of credit for its import was established---In such exceptional situation benefit granted under SRO No.575(I)/2006 could be availed---In absence of such an exception, the effect of certification in the affirmative by EDB would be that it confirmed that at the time when the importer opened the letter of credit in favour of a foreign supplier it was already one of the locally manufactured items and thus not entitling an importer to claim concession under SRO No.575(I)/2006---Where an item was required to be custom-built e.g. an item with the same technical specifications was required to be supplied with different dimensions not readily available in the local market even then exemption on such item could not be claimed where a local manufacturer was fully capable to supply it had an order been placed with him---In the present case, the Engineering Development Board of Pakistan (EDB) certified that the 'Air Handling Units' imported by the petitioner were also being manufactured by four local manufacturers with the same technical specifications---Moreover the petitioner sought certification from EDB on 14.3.2011 i.e. at the time when the consignment was in the process of being shipped to Pakistan, much after the letter of credit dated 9.9.2009 was opened---Petitioner was rightly denied the exemption from customs duty and sales tax under SRO No.575(I)/2006]---[Per Munib Akhtar, J (Minority view): Language used in the SRO No.575(I)/2006 in specific context of "Air Handling Units" provided that the exemption was available only to units of "specifications which were not manufactured locally"---Such condition clearly recognized that Air Handling Units came in more than one type of specifications, of which some sorts only were being locally manufactured, thus, it required that the CGO to be issued by Federal Board of Revenue, or the certificate that could be issued by the EDB, had to list (or at any rate clearly relate to) the specifications of the "Air Handling Units" that were to be regarded as being locally manufactured---Only listing without more, "Air Handling Units" (with or without their PCT heading) in the CGO or the EDB certificate would be insufficient---For purposes of exemption/ concessionary notifications, the Customs General Order 11 of 2007 dated 28.8.2007 ('CGO 11') was the relevant CGO for the present case---Entry No. 504 of the CGO 11 listed two companies that locally manufactured Air Handling Units---For CGO 11 to apply the question was not whether either of the two companies manufactured "Air Handling Units" with the same specifications as those imported by the petitioner, rather, the true and correct question was whether the petitioner's "Air Handling Units" were of the specifications as listed in CGO 11, and manufactured by the two companies---Record showed that this was not the case---Furthermore the Al-Samrez' principle enunciated by the Supreme Court in the case of Al-Samrez Corporation v. Federation of Pakistan (1986 SCMR 1917) would apply to the present case---Certificate, issued by EDB on 1.4.2011, could not, as a matter of law and for purposes of SRO No.575(I)/2006 have any retrospective effect---As a certification that "Air Handling Units" of the sort imported by the petitioner were being locally manufactured, it could only apply prospectively from the date of its issuance---In considering whether the issuance of the EDB Certificate amounted to a "withdrawal" of the exemption under SRO No.575(I)/2006 within the meaning of S. 31A of the Customs Act, 1969, a restrictive view would have to be taken---When so considered there was no withdrawal of the exemption---Exemption ceased to apply in relation to the petitioner's goods when the certificate was issued by EDB on 1.4.2011, however, that was not, in the context of S. 31A, a withdrawal of the exemption; that could take place only as a result of an act of the authority issuing the same, which would have to be the Federal Government---Petitioner was entitled to the benefit of SRO No.575(I)/2006 in respect of the "Air Handling Units" for which the goods declaration was filed on 22.7.2011; this was so by an application of the Al-Samrez principle, which was not ousted or negated by reason of S. 31A of the Customs Act, 1969]---Petition for leave to appeal was dismissed in circumstances.

Per Munib Akhtar, J

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

----S. 19---Sales Tax Act (VII of 1990) S. 13(2)(a)---Principle enunciated by the Supreme Court in the case of Al-Samrez Corporation v. Federation of Pakistan (1986 SCMR 1917)---Scope---Effective rate of duty---Scope---Principle enunciated in Al-Samrez case provided that if an importer altered his position in reliance on an exemption notification (e.g., by entering into a contract or opening a letter of credit), he then acquired a vested right in the exemption to which he remained entitled even if the exemption itself stood withdrawn by the time the goods arrived in Pakistan.

Al-Samrez Corporation v. Federation of Pakistan 1986 SCMR 1917 ref.

Khalid Javed Khan, Advocate Supreme Court for Petitioner.

Muhammad Siddiq Mirza, Advocate Supreme Court for Respondent No.1.

Vijil Ahmed Abbasi, Advocate Supreme Court and M. Iqbal Ch. Advocate-on-Record for Respondent No.2.

Muhammad Khalil Dogar, Advocate Supreme Court for Respondent No.3.

2019 S C M R 594

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and Sajjad Ali Shah, JJ

NAZEER AHMED---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 14-K and Criminal Miscellaneous Application No.205-K of 2018, decided on 25th February, 2019.

(Against the judgment dated 17.10.2017 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 385 of 2016)

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

----Ss. 302(b), 319, 34 & 80---Qatl-i-amd, qatl-i-khata, common intention, accident in doing a lawful act---Reappraisal of evidence---Accused and co-accused allegedly murdered the deceased---After a regular trial accused and co-accused were convicted by the Trial Court for an offence under S. 302(b), P.P.C. read with S. 34, P.P.C. and the accused was sentenced to death whereas the co-accused was sentenced to imprisonment for life---On appeal the High Court acquitted the co-accused whereas conviction of accused was converted from one under S. 302(b), P.P.C. to that under S. 319, P.P.C. and he was sentenced to rigorous imprisonment for five years and to pay Diyat to the heirs of the deceased---Held, that only eye-witness of the murder was none other than the complainant---According to the complainant there had been repeated exchange of hot words between the deceased and the complainant on the one hand and the accused party on the other and, thus, it was unlikely that the complainant and the deceased would go with accused to his house---First Information Report (FIR) in respect of the incident in issue had not been lodged at the police station giving rise to an inference that the same had been lodged and registered after deliberations and preliminary investigation---Record of the case showed that some stranger had informed the police about the occurrence and that stranger had never been identified or produced during the trial---Investigating officer of the case appearing before the Trial Court had stated that till 6.30 p.m. on the day of occurrence, day the complainant party was not in a position to name any culprit---Said investigating officer had gone on to state that the complainant had maintained before him that he would lodge an FIR after consulting with his relatives---In view of the allegations levelled in the case if the murder in issue was a deliberate and calculated murder then the complainant would not have been spared by the accused party---Story set up by the prosecution seemed unbelievable because according to the said story co-accused had held the deceased at a time when the accused was firing at the deceased, and in such circumstances it was quite likely for the co-accused to be hit by the firing of the accused---No independent proof of the alleged motive had been produced during the trial and even otherwise the asserted motive was not a serious one---Nothing had been recovered from the custody of accused and co-accused during the investigation---Investigating agency had declared both of them to be innocent---High Court itself had found the story of the prosecution to be unbelievable besides being unacceptable and resultantly the High Court had placed a heavy reliance upon a judicial confession allegedly made by the accused before a Magistrate---If the said judicial confession were to be accepted as correct, which the High Court had accepted and had acted upon the same, then the case in hand could not be treated as a case attracting the offence of qatl-i-khata defined in S. 318, P.P.C.---High Court's conclusion showed that the case was accepted by the High Court to be a case of an accident, and according to the provisions of S. 80, P.P.C. an act done by an accident did not constitute any offence---Since the accused had not challenged his conviction and sentence recorded by the High Court for an offence under S. 318, P.P.C. read with S. 319, P.P.C. no occasion was found to interference with the impugned judgment passed by the High Court---Appeal was dismissed accordingly.

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

----Ss. 302(b), 319, 34 & 80---Qatl-i-amd, qatl-i-khata, common intention, accident in doing a lawful act---Reappraisal of evidence---Accused and co-accused allegedly murdered the deceased and dragged his dead body out onto the street---High Court acquitted the co-accused whereas conviction of accused was converted from one under S. 302(b), P.P.C. to that under S. 319, P.P.C. and he was sentenced to rigorous imprisonment for five years and to pay Diyat to the heirs of the deceased---Held, that allegation regarding dragging of the deadbody of the deceased from the house to a street outside was improbable, as it was unrealistic to believe that within the view of the eye-witnesses and the other residents of the locality the accused and co-accused had dragged the deadbody from an upper storey of the house to the street before decamping from the place of occurrence---Eye-witnesses of the said dragging were both chance witnesses besides being very closely related to the deceased---Said witnesses had been brought by the complainant to the place of occurrence after the murder had already been committed---Strangely nobody else from the vicinity had seen the accused and co-accused dragging the deadbody down onto the street---No occasion was found to interference with the impugned judgment passed by the High Court---Appeal was dismissed accordingly.

Appellant in person.

Mehmood A. Qureshi, Advocate Supreme Court for Respondents Nos. 2 and 3.

Abdullah Rajpot, Deputy Prosecutor-General, Sindh for the State.

Date of hearing: 25th February, 2019.

2019 S C M R 599

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

Mst. Bibi SHAH BAN (DECEASED) through L.Rs. and others---Appellants

Versus

LAND ACQUISITION COLLECTOR, A.C., MARDAN and others---Respondents

Civil Appeals Nos. 79-P and 143-P to 146-P of 2013, decided on 4th March, 2019.

(Against the judgment dated 01.04.2013 of the Peshawar High Court, Peshawar passed in R.F.As. Nos. 104-P, 114-P, 116-P and 117-P of 2004)

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

----Ss. 6, 23 & 48-A---Constitution of Pakistan, Art. 24---Land acquired for expansion of a Government college---Delay of more than ten years between declaration and making of award--- Collector made his award and fixed the amount of compensation payable to the owners of the land at the rate of Rs. 1079.37 per marla and fixed an amount of Rs. 21,994 as compensation for the structures standing on the land---Fifteen per cent compulsory acquisition charges and eight per cent simple interest was also awarded from date of notification by the Commissioner for taking over the land---Collector noted that those from whom the land was acquired were left without access to their remaining lands and therefore carved out six approach roads/pathways to access their lands, but excluded the land falling under these approach roads/pathways for payment of compensation---Reference filed before the Judge Land Acquisition against the award was partly accepted and the Judge increased the price of the acquired land to Rs. 4,500 per marla, reduced the interest per annum to six per cent and maintained the fifteen per cent compulsory acquisition charges---High Court maintained the compensation that had been determined by the Judge Land Acquisition, however, it awarded the cost of litigation to the land owners---Held, that there had been an unjustifiable delay in making the Award---Declaration under S. 6 of the Land Acquisition Act, 1894 ('the Act') was made on 14th January, 1986 and the Award was made ten and a half years later on 4th August, 1996---Said Act envisaged an award to be made within a year---Article 24(2) of the Constitution mandated the payment of compensation for land compulsorily acquired---Depriving a person of property was an exception to the Fundamental Right to hold and enjoy property---Owner must be promptly compensated for the compulsorily acquired property---Designated authority (the Collector) had to determine the compensation payable to the land owners (appellants) within a year but failed to do so and instead took ten and a half years to make the Award---Judge Land Acquisition had noted that the acquired land was situated on the main road and also had commercial value as it was situated in the vicinity of a hospital, a college and the Office of the Forest Officer---Judge had also referred to documents, including the fard jamabandi for the year 1994-95 produced by Patwari Halqa and the mutations of lands in the area showing the price of land to be ten thousand rupees per marla at the relevant time, and a judgment wherein the compensation in respect of land acquired in the same area a few years previously was fixed at Rs. 6,000 (six thousand rupees) per marla---Despite noting such facts, which had remained un-rebutted, the Judge increased the compensation to only Rs. 4,500 per marla---High Court had also disregarded the evidence on record, though it had noted the price had increased and had expressed sympathy with the land owners---Land owners were also entitled to receive compensation for the land used in approach roads/pathways, since the value of such land had diminished because it could only be used as approach roads/pathways---As regards the structures standing on the land the owners had valued the same at Rs. 2,000,000 (two million rupees), however, in the Award these were valued at Rs. 21,994 only---Since the owners of the acquired area had not established that they had suffered damages on account of the delay in making the Award beyond the period of one year, therefore, they were not entitled to receive additional compensation under S. 48-A of the Act---Supreme Court directed that compensation for the acquired land was to be paid at the rate of Rs. 10,000 per marla; that compensation for the reduction in the value of land utilized for the approach roads/pathways, was to be paid at the rate of Rs. 5,000 per marla; that compensation for the value of the construction on the land was to be Rs. 200,000; and the cost of litigation was to be awarded to the land owners---Appeal was disposed of accordingly.

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

----S. 6---Land acquired for expansion of a Government college---College re-named after the then serving Provincial Governor---Supreme Court raised the question whether the College which was built on Government land and constructed out of public funds and for which land compulsorily acquired had been paid out of public funds could be named after a living person and one who held public office in the country---Supreme Court observed that since decision in respect of the matter of naming the College may affect the naming of public buildings, public parks, public roads and other public places not only in the province in question but also in other parts of the country therefore notices were to be issued to the Advocate Generals of all the provinces, the Federal Capital Territory and the Attorney General, all of whom were to file their respective written submissions within six weeks---Supreme Court directed office to fix the question raised for consideration of the Supreme Court as per the orders of the Chief Justice---Appeal was disposed of in circumstances.

Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Appellants (in C.A. No. 79-P of 2013).

Ex parte for Respondents Nos. 1 - 5 (in C.A. No. 79-P of 2013).

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for Respondent No.6 (in C.A. No. 79-P of 2013).

Abdul Latif Yousafzai, Advocate-General, Khyber Pakhtunkhwa on Court's Notice (in C.A. No. 79-P of 2013).

Amjad Ali, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record along with Faqir Jan, Admin Officer (in C.As. Nos.143-P to 146-P of 2013).

Ex parte for Respondents Nos. 1 - 7 (in C.As. Nos. 143-P to 146-P of 2013).

Nemo for Respondent No. 4 (in C.As. Nos. 143-P to 146-P of 2013).

Ex parte for Respondents Nos. 1 - 3, 5 - 10 (in C.As. Nos.143-P to 146-P of 2013).

Date of hearing: 13th December, 2018.

2019 S C M R 608

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and Sajjad Ali Shah, JJ

ABDUL GHANI and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 20-K of 2018 and Jail Petition No. 458 of 2018, decided on 25th February, 2019.

(Against the judgment dated 25.04.2018 passed by the High Court of Sindh, Karachi in Criminal Jail Appeal No. 259 of 2014)

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

----Ss. 9(c), 14 & 15---Possession of narcotics, aiding, abetment or association in narcotic offences---Safe transmission of samples to the Chemical Examiner not established---Effect---In a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt---Record of the present case showed that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution---Station House Officer (SHO)/complainant had stated before the Trial Court that he had deposited the recovered substance at the malkhana of the local police station but admittedly the moharrir of the said police station had not been produced before the Trial Court to depose about safe custody of the recovered substance---Head Constable who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside in such circumstances and they were acquitted of the charge by extending the benefit of doubt to them---Appeal was allowed accordingly.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

Mehmood A. Qureshi, Advocate Supreme Court for Appellant (in Cr. A. 20-K of 2018).

Nemo for Petitioner (in J.P. 458 of 2018).

Habib Ahmed, Special Prosecutor-Anti-Narcotics Force for the State.

Date of hearing: 25th February, 2019.

2019 S C M R 610

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

MUHAMMAD AKRAM alias AKRAI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 160-L of 2013, decided on 7th March, 2019.

(On appeal against the judgment dated 08.03.2010 passed by the Lahore High Court, Lahore in Crl. As. Nos. 1139, 589 of 2004 and Murder Reference No. 484 of 2004)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Complainant party made no conscious or deliberate delay in reporting the matter to police---Complainant was the brother of the deceased and also an eye-witness---Presence of both the eye-witnesses at the place of occurrence was established beyond doubt---Both eye-witnesses while appearing before the Trial Court remained consistent on all the material aspects of the case, and they, in a straightforward manner held the accused responsible for the murder of deceased---Probable time between death and postmortem as noted by doctor coincided with the ocular account---Prosecution had been successful in proving its case against the accused beyond reasonable doubt---Conviction of accused recorded under S. 302(b), P.P.C. was maintained in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Eye-witness---Presence at scene of occurrence---Plausible explanation---One of the eye-witness was a friend of deceased---Said eye-witness was an independent witness and the resident of the vicinity---In his statement recorded before the Trial Court, he stated that he had friendship with deceased for the last about 18/20 years; that the distance between his house and the house of the deceased was about 250 meters and that he was residing in the vicinity for the last 20 years---Said eye-witness had given a plausible explanation for his presence at the spot at the relevant time--- Conviction of accused for murder was maintained in circumstances.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Identification of accused in low light---Where complainant and accused parties were closely related to each other, the identification of a close relative (accused) even in low light was not a big deal.

(d) 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---Specific motive was set out by the complainant in the FIR and in his statement recorded before the Trial Court by claiming that four days prior to the occurrence, accused along with his vagabond friends had come and stood in front of the house of the complainant, and the deceased had reprimanded the accused, whereupon an altercation took place between the two; that the accused had allegedly threatened the deceased of dire consequences and on account of such grudge, the accused committed the crime---In his cross-examination, the complainant admitted that he had never reported to police that accused along with his vagabond friends used to come and stand in front of their house---Nothing was available on record to prove that the incidence of altercation between accused and deceased was ever reported to police---Complainant also did not disclose the names of vagabond friends of the accused who used to come and stand in front of the house of the complainant---Real cause of the occurrence had not been disclosed by either of the sides---In such circumstances, the motive set out by the prosecution remained far from being proved---Prosecution's failure to prove the motive set out by it certainly benefited the accused---Conviction of the accused under S. 302(b), P.P.C. was maintained but his sentence of death was converted into imprisonment for life.

Miss Najma Parveen, Advocate Supreme Court for Appellant.

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

Umar Hayat Sandhu, Advocate Supreme Court for the Complainant.

Date of hearing: 7th March, 2019.

2019 S C M R 616

[Supreme Court of Pakistan]

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

TANVEER MUSHARRAF and another---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Civil Secretariat, Peshawar and others---Respondents

Civil Petitions Nos. 2297 and 2298 of 2018, decided on 27th February, 2019.

(Against the judgment dated 02.05.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 1712-P and 1585-P of 2018)

Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 2(n)---[Khyber Pakhtunkhwa] Civil Servants Act (XVIII of 1973), S. 2(1)(b)---Accommodation only to be allotted to "public office holders"---"Public office holder"---Scope---Under the provisions of the Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 ('the Act') government accommodation could only be allotted to public office holders---Notwithstanding the definition or status of "civil servant" given or conferred upon any employee of the Federal or Provincial Government under any law or judgment, the benefit of the provision of the Act was available only to a special class of civil servants namely those who had been appointed under the [Khyber Pakhtunkhwa] Civil Servants Act, 1973 and civil servants of the Federal Government posted and working in Peshawar under the Government---In order to avail the benefit of the Act, an employee must be a civil servant as defined in the Act---One of the petitioners was an employee of the Provincial Public Service Commission while the other was an employee of Employees Social Security Institution---Petitioners were not civil servants as they had not been appointed under the [Khyber Pakhtunkhwa] Civil Servants Act, 1973, nor did they fall in the category of civil servants of the Federal Government posted and working in Peshawar, under the Government, as provided in S. 2(n) of the Act---Petitions for leave to appeal were dismissed accordingly and leave was refused.

Muhammad Younis Thaheem, Advocate Supreme Court for Petitioners (in both cases).

Barrister Qasim Wadood, Additional A.-G., Khyber Pakhtunkhwa, Taimur Khattak, D.S. Judicial and Nur Rehman, Establishment Officer, Khyber Pakhtunkhwa for Respondents (in both cases).

Date of hearing: 27th February, 2019.

2019 S C M R 619

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

COLLECTOR OF CUSTOMS, LAHORE---Appellant

Versus

UMAR KHAN---Respondent

Civil Appeal No. 663 of 2013, decided on 11th January, 2019.

(On appeal from the order dated 28.1.2013 passed by Lahore High Court, Lahore in C.R. 67 of 2010)

Customs Act (IV of 1969)---

----Ss. 196(1) & 196(10)---Reference to High Court by Customs department under S. 196 of the Customs Act, 1969---Authorization of relevant customs officer---Question in issue in the present case was whether the Reference filed under S. 196 of the Customs Act, 1969 ("the Act") by the customs department bore authorization of the Collector of Customs in the terms required by subsection (1) of the S. 196 of the Act---High Court by way of impugned judgment came to the conclusion that although the note sheet for the case contained a request for authorization of the Additional Collector for filing a Customs Reference before the High Court, the Collector did not as such sign the document in order to comply the statutory requirement that such authorization must be in writing---Accordingly, for the said omission the Reference was dismissed as having been filed incompetently by its signatory, the Additional Collector---Held, that one of the paragraphs of the office note sheet of the case contained the signature of the Collector of Customs and the stamp of his office---Thereafter, again while approving authorization of the Additional Collector of Customs (HQ) for filing the Customs Reference, signing the power of attorney and letter of authority to the counsel, the Collector signed in approval of the relevant paragraph under his office stamp---Supreme Court in such circumstances directed that Customs Reference shall be deemed to be pending before the High Court and be heard and decided on merits---Appeal was allowed with the observations that the matter in issue came before the High Court in the year 2010, the impugned decision involving a minor technical issue was taken in 2013 and now the matter was being decided by the Supreme Court (in the year 2019); that subsection (10) of S. 196 of the Act took care of such objections, and the clear purpose and the effect of the said provision was that such technical and superfluous objections were put to rest at the outset so that the matter may be decided on merits.

Muhammad Khalid Chaudhry, Advocate Supreme Court for Appellant.

Ex parte for Respondent.

Date of hearing: 11th January, 2019.

2019 S C M R 622

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

ABDULLAH NAWAZ CHEEMA---Petitioner

Versus

FEDERAL PUBLIC SERVICE COMMISSION (FPSC), ISLAMABAD and another---Respondents

Civil Petition No. 2350 of 2015, decided on 17th December, 2018.

(On appeal from the Judgment/Order dated 24.06.2015 of the Islamabad High Court, Islamabad passed in F.A.O. No. 93 of 2013)

Rules for Competitive Examination (CSS), 2012---

----R. 25 & Appendix II, Para. 7---Open merit quota and Women's quota---Where a female candidate secured sufficient merit to be allocated a group on the Open merit, she may opt for a better group, if that was available in the Women quota---Once she had opted for a better group, the one she had previously been allocated in Open merit would be left vacant---Said vacant group seat was then transferred to the Women quota which was short a seat when the candidate had opted for the then available better seat; this allowed for there to be a constant number of reserved seats in the Women quota without depriving deserving female candidates, higher on the merit list, better group seats---Male candidates otherwise not qualifying for allocation on open merit could not be given the benefit of allocation in the result of upgradation permissible to Open merit female candidates.

FPSC and others v. Ms. Nargis Shazia Chaudhry Civil Petition No. 941 of 2010 ref.

G.M. Chaudhry, Advocate Supreme Court for Petitioner.

Nayyab Hassan Gardazi, DAG and Haroon-ur-Rashid, Dy. Dir. for Respondents.

Date of hearing: 17th December, 2018.

2019 S C M R 627

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Ijaz ul Ahsan, JJ

ABDUL LATIF and another---Appellants

Versus

Messrs PARMACIE PLUS---Respondent

Civil Appeal No. 25-K of 2018, decided on 25th February, 2019.

(On appeal against the impugned judgment dated 07.05.2018 passed by the High Court of Sindh, Karachi in F.R.A. No. 22 of 2017)

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

----S. 17---Rent agreement, covenants of---Scope---Expiry of tenancy period---Where the tenant continued to occupy the tenement after the expiry of the term mentioned in the agreement the covenants of the agreement continued to apply except such covenants that were in conflict with the provisions of the applicable rent law.

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

----S. 7(5)---Increase in fair rent---"Landlord prohibited from increasing rent unilaterally before expiry of a period of three years" [section 7(5) of the Cantonments Rent Restriction Act, 1963]---Scope and meaning---Parties were free to agree to a fixed rate of rent or a rate that was variable to be increased either by a certain amount or by a certain percentage of the existing rent after a specified period of time, and there was no prohibition in law in such regard---Periodical increases agreed between the parties under the tenancy agreement had to be regarded as the rent determined by an agreement between the landlord and the tenant within the meaning of S. 7(5) of the Cantonments Rent Restriction Act, 1963 ('the Act')---Prohibition contained in S. 7(5) of the Act only meant that no unilateral increase to the surprise of the tenant was permissible before the expiry of three years---Increase, which was not unilateral but with the consent of both the parties could not be subsequently disputed by the tenant unless it was called in question through an application made for fixation of fair rent---What was prohibited under S. 7(5) of the Act was that no unilateral increase was to be made beyond what was determined under the tenancy agreement, be it fixed or variable rate---Only in circumstances where there was unilateral increase in rent or where fair rent had been fixed by a Court of Controller of Rents that the rent could not be increased unless a period of three years had elapsed.

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

----Ss. 7(5) & 17--- Eviction of tenant---Rent determined between the parties--- Scope--- Prohibition contained under S. 7(5) of the Cantonments Rent Restriction Act, 1963---Scope---Tenancy agreement was for a period of eleven months, and one of the clauses of the agreement stipulated that rent shall be increased by seven percent after every eleven months---When the period of eleven months expired and the rent became due, the tenant refused to remit rent with the seven percent increase on the basis that such increase was prohibited by S. 7(5) of the Cantonments Rent Restriction Act, 1963 ('the Act') unless a period of three years had elapsed---Held, that in the present case, seven percent increase after every eleven months of tenancy had been agreed upon between the parties, which was to be treated as the rent determined by an agreement between the landlord and tenant---Such rate of rent remained unaffected by the bar contained in S. 7(5) of the Act, which only prohibited unilateral increase within a period of three years---Only way to challenge a rate of rent agreed upon with the consent of the parties was by moving the Rent Controller to fix fair rent under the provisions of rent law and not otherwise---In the present case no application for fixation of fair rent had been moved by the tenant, therefore, the consequence of non-payment of agreed rent within the period prescribed by law would amount to commission of default in the payment of rent and would make it liable for eviction---In the present case as the tenant failed to pay the rent in terms of the agreed increase in rent agreed upon in the tenancy agreement, it was liable to be evicted---Appeal was allowed accordingly.

Shahid Qadeer Advocate Supreme Court for Appellant with Appellant in person.

Muhammad Pervaiz Khan Tanoli, Advocate Supreme Court for Respondent.

Date of hearing: 25th February, 2019.

2019 S C M R 631

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

MUHAMMAD ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 177-L of 2013, decided on 7th March, 2019.

(On appeal against the judgment dated 12.03.2010 passed by the learned Lahore High Court, Lahore in Crl. A. No. 1530 of 2010 and Murder Reference No. 647 of 2004)

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

----Ss. 302(b), 324 & 337-A(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah---Reappraisal of evidence---Accused and his co-accused persons were alleged to have murdered the deceased and caused injuries to certain other persons---Trial Court convicted and sentenced the accused to death---High Court maintained conviction of accused but reduced his sentence to imprisonment for life---Held, that vehicle of the complainant's side was assaulted allegedly by the accused and three others at about 05:30 a.m. and the crime was reported to the police at 05:45 a.m. i.e. within fifteen minutes---Such circumstance showed that crime was not reported to the police at the time mentioned in the FIR, which made the prosecution case doubtful in nature from its inception---Ocular account was furnished by two witnesses, who made material improvements to their statements while appearing before the Trial Court---Moreover one of the co-accused who was attributed a firearm injury on the person of injured witness was acquitted by the High Court---Ocular account was not fully supported by the medical evidence because in the FIR as well as before the Trial Court only one injury on the person of deceased was attributed to the accused, however, in the post mortem examination report two firearm injuries were observed---No explanation whatsoever was given as to how the second injury was inflicted on the person of deceased---Recovery of the weapons of offence along with live bullets allegedly effected at the instance of the accused was not of much help to the prosecution because report of the Forensic Science Laboratory was simply to the effect that the rifle was in working order---Prosecution claimed that the accused and his accomplices reached at the place of occurrence in a car, chased the car of the complainant's side and decamped from the place of occurrence in the same car---In the FIR, model, make or registration number of the car was not disclosed---In order to prove abscondance of the accused for a period of three months and ten days the prosecution produced a police official who stated during his cross-examination that the address given in the warrants of arrest did not specify street, house number and other conspicuous place, and that the report on the warrants of arrest did not contain name of any person from the neighborhood or any respectable person of the locality---No corroboration could be sought from such absconcion which, even otherwise, was only for a period of three months and ten days---Conviction and sentence recorded against the accused by the courts below were set aside and accused was acquitted of the charges framed against him---Appeal was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Improvement made by witness in his previous statement---Effect---When a witness improved his statement dishonestly to strengthen the prosecution case, such portion of his statement was to be discarded---Testimony of such witness could not be safely relied upon to maintain conviction and sentence of an accused on a capital charge. [p. 636] C

Munir Ahmad Bhatti, Advocate Supreme Court and Ms. Tasnim Amin, Advocate-on-Record for Appellant.

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

Date of hearing: 7th March, 2019.

2019 S C M R 640

[Supreme Court of Pakistan]

Present: Faisal Arab and Ijaz ul Ahsan, JJ

DIRECTORATE GENERAL EMERGENCY RESCUE SERVICE 1122 KHYBER PAKHTUNKHWA, PESHAWAR---Petitioner

Versus

NIZAKAT ULLAH---Respondent

Civil Petition No. 733 of 2018, decided on 22nd February, 2019.

(Against the judgment dated 17.01.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 4783-P of 2016)

Khyber Pakhtunkhwa Emergency Rescue Services Regulations, 2015---

----Reglns. 43, 45(2) & 50---Dismissal from service---Due process not followed---No permission provided to cross-examine witnesses---Where an employee was to be removed from service, which action obviously carried a stigma with it, he was entitled to due process which included fair opportunity to defend himself, cross-examine the witnesses and produce evidence in his defence---Further, he must be confronted with the material on the basis of which he had been issued show cause notice---Employee in question was deprived of his due process rights; he was not confronted with the material on the basis of which the show cause notice had been issued to him and he was not permitted to cross-examine the witnesses who were produced by his employer---Allegation against the employee was that he had quarrelled with his seniors and sent abusive and threatening SMS messages to them, and generally indulged in disorderly behavior---Neither evidence of any obnoxious SMS messages allegedly sent by the employee to his senior officers was placed on record nor was he provided an opportunity to cross-examine any witness that the employer may have produced---Further, there was no evidence that the employee had misbehaved with anybody or refused to perform his duty---Process followed by the employer in dismissing the employee was sketchy, one sided, non-transparent and not supported even by the Khyber Pakhtunkhwa Emergency Rescue Services Regulations, 2015 and the law---High Court had rightly reinstated the employee in service with all back benefits---Petition for leave to appeal was dismissed and leave was refused.

Sikandar Rashid, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd February, 2019.

2019 S C M R 643

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

GOVERNMENT OF THE PUNJAB, EDUCATION DEPARTMENT through Secretary Higher Education, Punjab Civil Secretariat Lahore and others--Petitioners

Versus

MUHAMMAD IMRAN and others---Respondents

Civil Petitions Nos. 1696-L to 1706-L of 2018 and Civil Petition No.3569-L of 2016, decided on 28th February, 2019.

(On appeal against the judgment/order dated 24.04.2016 of the Lahore High Court, Lahore passed in W.P. No. 39728 of 2016, W.P. No. 19283 of 2011, W.Ps. Nos. 1766, 3896, 4017, 4221, 5056, 8325, 1917, 15483, 28506 of 2017 and 178251 of 2018)

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

----S. 21---Order---Power to amend, add to or rescind---Scope---Authority which could pass an order was entitled to vary, amend, add to or rescind the same under S. 21 of the General Clauses Act, 1897.

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

----S. 21---Recalling of an order---Locus poenitentiae, principle of---Scope---Jurisdiction/power vested in an authority to recall an earlier older was based on the principle of locus poenitentiae---Exception to such principle was where in pursuance of the order passed by the authority, an aggrieved person took decisive steps, and changed his position---No one could retain the benefits of a withdrawn order, claiming the protection of having taken a decisive step, when the very order passed by the authority was illegal, void or without lawful authority---In such circumstances, it would not matter, even if decisive steps had been taken by the person in pursuance of the illegal order passed by the authority---However, the pecuniary benefit accrued and already received by a person in pursuance of an illegal order passed by the competent authority could not be recovered from him unless the benefiting order was obtained by the person through fraud, misrepresentation or concealment of material facts.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Shahid Masood Nadeem v. Dy. C.A.A.F., Lahore Cantt. 2003 PLC (C.S.) 1262; Shaukat Ali v. District Government through Nazim/Chairman Selection Committee and 4 others 2005 PLC (C.S.) 790 and Mst. Sajida Javed v. Director of Secondary Education, Lahore Division and others 2007 PLC (C.S.) 364 ref.

Imtiaz Ahmed Kaif, Additional A.-G., Punjab along with Ahmed Khan, S.O. Estt. Higher Education, Punjab for Petitioners.

Nemo for Respondents.

Date of hearing: 28th February, 2019.

2019 S C M R 648

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

Qazi MUNIR AHMED---Petitioner

Versus

RAWALPINDI MEDICAL COLLEGE AND ALLIED HOSPITAL through Principal and others---Respondents

Civil Petitions Nos. 606 and 607 of 2018, decided on 6th March, 2019.

(Against the Judgment dated 07.12.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Intra Court Appeals Nos. 181 and 196 of 2012)

(a) Limitation---

----Void order--- No period of limitation ran against a void order.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

(b) Appeal---

----Aggrieved person--- Scope---Any aggrieved person whether or not he was a party in a lis had the right to approach an appellate forum.

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

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Competency---Necessary and proper party i.e. Provincial Government not impleaded---Where petitioner did not implead the Provincial Government as a party in the constitutional petition, despite the fact that the said Government was a necessary and proper party in the case, the constitutional petition was not competent and was liable to be dismissed.

Government of Balochistan v. Mir Tariq Hussain Khan Magsi 2010 SCMR 115 ref.

(d) Constitution of Pakistan---

----Art. 199---Contract employment---Constitutional petition filed by a contract employee---Maintainability---Contract employee was debarred from approaching the High Court in its constitutional jurisdiction---Only remedy available to a contract employee was to file a suit for damages alleging breach of contract or failure to extend the contract.

Federation of Pakistan v. Muhammad Azam Chatha 2013 SCMR 120 ref.

(e) Master-servant---

----Contract employee---Contract employee could not press for reinstatement to serve for the left-over period and could at the best claim damages to the extent of unexpired period of his service.

Federation of Pakistan v. Muhammad Azam Chatha 2013 SCMR 120 ref.

Sardar Abdul Raziq Khan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner (in both cases).

Mian Abdul Rauf, Advocate Supreme Court for Respondents.

Date of hearing: 6th March, 2019.

2019 S C M R 652

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

MUHAMMAD ASHRAF alias ACCHU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 176-L of 2013, decided on 7th March, 2019.

(On appeal from the judgment of the Lahore High Court, Lahore dated 06.04.2010 passed in Criminal Appeal No. 1924 of 2004 and M.R. No. 753 of 2004)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Accused and his co-accused were alleged to have murdered the deceased---Trial Court sentenced the accused to death---High Court reduced sentence of accused from death to imprisonment for life---Held, that occurrence in the present case, as per prosecution took place at 4.30 p.m.---Matter was reported to police on the same day at 5.45 p.m., as a result whereof formal FIR was registered at 6.45 p.m.---Apparent promptitude in reporting the matter to police and registration of FIR was hardly of any avail to the prosecution because the postmortem on the dead body of deceased was conducted after delay of more than 23 hours of reporting the matter to police---Complainant (father of deceased) claimed that during the time of occurrence he was posted as a police official in a city different to the one where the incident took place, but since he was on leave he was with his deceased son in the city where the incident took place---In his cross-examination, complainant claimed that he had produced proof of leave before the investigating officer, however, the investigating officer denied such assertion of complainant and stated before the Trial Court that the complainant never provided any documentary proof regarding his leave---Complainant further claimed that police reached first at the place of occurrence where murder of deceased took place, but the investigating officer stated that the police party reached another place of occurrence before visiting the place where deceased was murdered---Serious doubts were found on record regarding the presence of eyewitnesses at the place of occurrence at the relevant time and their claim of witnessing the occurrence---Direct evidence of complainant and another witness had been disbelieved up to the Supreme Court to the extent of co-accused, therefore, it was of paramount importance to see as to what independent corroboration was available on record to distinguish the case of accused from that of his acquitted co-accused---Scrutiny of evidence showed that no such corroboration was available on record---Empties secured from the spot and the weapon (pistol) allegedly recovered from the possession of accused at the time of his arrest were sent to the office of Forensic Science Laboratory on the same day i.e. on 21-03-2002 after the arrest of accused on 23-01-2002---In such circumstances, the report of Forensic Science Laboratory (FSL) could not be relied and was legally inconsequential---Conviction and sentence of accused was set aside and he was acquitted of the charge framed against him---Appeal was allowed accordingly.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Motive---Previous enmity---Motive was always a double-edged weapon---Previous enmity could be a reason for the accused to commit the alleged crime, but it could equally be a reason for the complainant side to falsely implicate the accused in the case for previous grouse.

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Benefit of slightest of doubt must go to accused.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Concocted evidence provided by chance witnesses---Where the Court reached a conclusion that the eyewitnesses were chance witnesses; they had not witnessed the occurrence and the prosecution story was concocted by the prosecution witnesses, then the case of the accused merited plain acquittal.

Mian Muhammad Ilyas, Advocate Supreme Court for Appellant.

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

Complainant in person.

Date of hearing: 7th March, 2019.

2019 S C M R 659

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

RIFFAT SHAHEEN---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar

and others---Respondents

Civil Appeal No.1459 of 2018, decided on 7th March, 2019.

(Against judgment dated 13.09.2018 of Peshawar High Court, Peshawar, passed in Writ Petition No. 4125-P of 2017)

Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018, Rr. 11 & 37---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015, R. 7 [since repealed]---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, R. 4 [since repealed]---Allotment of Government accommodation---Right of spouse to retain government accommodation allotted to husband after his retirement---Petitioner, who was employed as a PTC teacher resided with her husband in a government accommodation---Husband was working as an Assistant Director in a Provincial training institute---Upon retirement of husband, a grace period of six months was allowed, where after, the Provincial Government issued a vacation notice to the petitioner and her husband---Petitioner applied for transfer of the accommodation in her name under R. 4 of the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980---Said request was not acceded to---In the meantime, Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 was promulgated which repealed and substituted the previous Rules---Consequently, the petitioner's application was not accepted which prompted her to approach the High Court in its constitutional jurisdiction---Said constitutional petition was also dismissed---Petitioner contended that under the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, a vested right had accrued in her favour which could not be taken away through a subsequent change in law/rules---Held, that the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980 ('Rules of 1980') as well as the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015 ('Rules of 2015') were repealed by the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018 ('Rules of 2018')---Rules of 2018 specifically provided that the Rules of 1980 and 2015 stood repealed except to the extent as were not inconsistent or in conflict with the Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 ('the Act') and the Rules of 2018---Rules of 2015 did not provide for out of turn allotment to the spouse of a retired civil servant---Further, the Act and Rules of 2018 did not provide an automatic benefit to the spouse or children of a deceased or retired civil servant to retain the government accommodation on retirement/demise of the original allottee, however, their rights had been safeguarded by providing a special quota in the available government housing which was based on seniority of applications---List of eligible children and spouses of retired/deceased employees was accordingly maintained by the concerned department---Petitioner would be entitled to allotment of an official accommodation at her own turn and she could not rely upon the Rules of 1980 and or of 2015 in order to advance her claim---Further, she had already retained the government accommodation for a grace period of six months whereafter she and her husband were obliged to vacate the government accommodation and utilize house rent allowance which was paid by the government---Petitioner's name appeared at Sr. No.13 of the waiting list maintained by the Provincial Government for allotment of government accommodation---Petitioner did not have a legitimate right to retain the government accommodation originally allotted to her husband on the basis of 1980 Rules because the same had been repealed, and her case was governed by the Act and the Rules of 2018 and no legally enforceable vested right existed in her favour---Appeal was dismissed accordingly.

Nasir Mehmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa for Respondents.

Date of hearing: 7th March, 2019.

2019 S C M R 703

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Faisal Arab and Munib Akhtar, JJ

IMPLEMENTATION OF JUDGMENT DATED 4.5.2018 IN C.M. NO. 376-K OF 2014: In the matter of

Civil Misc. Application No.8758 of 2018 in Civil Misc. Application No.376-K of 2014, Civil Misc. Application No.9963 of 2018 in Civil Misc. Application No.8758 of 2018, Civil Misc. Application No.10096 of 2018 in Civil Review Petition No.288 of 2018, Civil Misc. Application No.10604 of 2018 in Civil Misc. Application No.8758 of 2018, Civil Misc. Application No.8759 of 2018 in Civil Misc. Application No.3854 of 2014, Civil Misc. Application No.9181 of 2018 in Civil Misc. Application No.3854 of 2014 in Suo Motu Case No.3 of 2009, Criminal Misc. Application No.1655 of 2018 in Criminal Original Petition No.57 of 2015, Criminal Misc. Application No.96 of 2019 in Criminal Misc. Application No.1655 of 2018 in Criminal Original Petition No.57 of 2015 and Suo Motu Case No.34 of 2018, decided on 21st March, 2019.

Malir Development Authority Act, 1993 (XI of 1994)---

----Ss. 4, 8(2)(iii), 9 & 14---Colonization of Government Lands Act (V of 1912), Ss. 10(2A), 10(4) & 17---Implementation of judgment of the Supreme Court reported as Syed Mehmood Akhtar Naqvi and others v. Malik Israr, Sr. Member Board of Revenue Sindh and others (PLD 2018 SC 468)---Private housing society---Illegalities in adjustment of Government land with land belonging to a private real estate developer ('the developer')---Value of the Government land far higher than the value of the private land exchanged---Settlement offer made by developer accepted by the Supreme Court---Protection of rights of third parties/allottees---Some development work had been undertaken by the developer upon the land in question and it was claimed, though not verified, that several hundred billions of rupees had been expended, in such behalf---Developer was prepared to pay the price of the land in question and complete the project thereby guaranteeing the protection and preservation of third party rights and also ensuring that reasonable value of the land went into the public exchequer---Most efficient way of securing the rights of third parties i.e. the allottees was through the completion of the project and handing over the developed plots and/or completed constructed units, as the case may be, to such allottees---Tentative financial advantage/monetary benefit that would be gained by the developer from the land in question as calculated by the Supreme Court was Rs. 360 billion---Developer had made an offer of Rs. 460 billion to be paid within a period of seven years for settlement of the case in question, which process had the blessings and consent of the Provincial Government and the concerned Development Authority---Supreme Court accepted the offer of 460 billion made by the developer and directed that National Accountability Bureau (NAB) shall not file a Reference against the developer for the time being, however, if there was any default in making payments in terms of present order or if otherwise there was any violation of the terms and conditions of the offer, NAB shall immediately file said Reference, which shall be proceeded with in accordance with law---Terms and conditions on which the offer of the developer was accepted by the Supreme Court, including the price of land, the mode and period of payment, the details of properties held as security for payments, consequences of default, etc. provided.

Syed Asghar Haider, Prosecutor General, NAB, Jehanzeb Bharwana, Additional Prosecutor General, NAB, Nayyar Rizvi, Addl. P.G. NAB and Imran-ul Haq, SPl. Prosecutor, NAB for NAB (in C.M.A. No. 8758 of 2018).

Farooq H. Naek, Sr. Advocate Supreme Court, Zakir Hussain Khaskheli, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Muhammad Irfan, Law Officer for D.G. MDA (in C.M.A. No. 8758 of 2018).

Tariq Mehmood Jehangiri, Advocate General, Islamabad for ICT (in C.M.A. No. 8758 of 2018).

Zahid Hussain Bokhari, Advocate Supreme Court for Foreign Investors (in C.M.A. No. 8758 of 2018).

Tariq Mehmood Khokhar, Additional Attorney General for Federation (in C.M.A. No. 8758 of 2018).

Kh. Tariq A. Rahim, Senior Advocate Supreme Court and M. Azhar Siddique Advocate Supreme Court for some of the residents of Bahria Town, Karachi (in C.M.A. No. 8758 of 2018).

Syed Ali Zafar, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court, Ch. Shahid Riaz, Legal Assistant and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town (in C.M.A. No. 8758 of 2018).

Shahzad Fazal Abbasi, Deputy Commissioner, Malir, Karachi, Suleman Talibuddin, Advocate General, Sindh and Muhammad Azam Jamali, SP for Province of Sindh (in C.M.A. No. 8758 of 2018).

Sardar Muhammad Aslam, Advocate Supreme Court; Muhammad Nadir, Proprietor, COSMOS and Atif Polani, Proprietor Tri-Star (in C.M.A. No. 8758 of 2018).

Barrister Qasim Ali Chohan, Additional Advocate General, Punjab for Province of Punjab (in C.M.A. No. 8759 of 2018).

Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town (in C.M.A. No. 8759 of 2018).

Tariq Mahmood Khokhar, Additional AGP for Federation (in Criminal M.A. No. 1655 of 2018).

Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town (in Criminal M.A. No. 1655 of 2018).

Barrister Qasim Ali Chohan, Additional Advocate General, Punjab for Province of Punjab (in Criminal M.A. No. 1655 of 2018).

Tariq Mehmood Jehangiri, Advocate General, Islamabad for ICT (in SMC No.34/2018).

M. Azhar Siddique, Advocate Supreme Court for Bahria Town (in SMC No.34/2018).

Date of hearing: 21st March, 2019.

2019 S C M R 734

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J.,Sajjad Ali Shah and Yahya Afridi, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitioner

Versus

The STATE and others---Respondents

Civil Petition No. 639 of 2019, decided on 26th March, 2019.

(Against the order dated 25.02.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 352 of 2019)

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 14(c)---Corruption and corrupt practices---Suspension of sentence---Admission to bail for a few weeks to allow the convict to seek medical treatment---Petitioner had been convicted by the Accountability Court in respect of offences under Ss. 9(a)(v) & 14(c) of the National Accountability Ordinance, 1999 and he was sentenced to rigorous imprisonment for seven years along with fine---Medical history of petitioner brought on record did suggest that he had a long history of various ailments including cardiac complications, kidney problems, hypertension and diabetes---After extending due deference to the consistent medical opinion of senior doctors available on record, the prayer made by the petitioner regarding his admission to bail upon suspension of his sentence for a limited period was found to be reasonable---Petitioner was admitted to bail for a period of six weeks upon suspension of his sentence subject to furnishing bail bond in the sum of Rs. Five million with two sureties each in the like amount, with the directions that the petitioner shall not leave or be allowed to leave the country; that bail granted to petitioner shall automatically stand cancelled upon expiry of six weeks whereupon the petitioner shall surrender to custody voluntarily failing which he shall be taken into custody; that surrender to custody shall not include surrendering before a court with an application for bail, and that the petitioner may get himself medically treated from medical practitioners and medical facilities of his choice in the country.

Khawaja Haris Ahmad, Senior Advocate Supreme Court, Muhammad Zubair Khalid, Advocate Supreme Court and Sher Afgan Asadi, Advocate Supreme Court for Petitioner.

Nayyar Rizvi, Additional Prosecutor-General, Accountability, Jehanzeb Barwana, Special Prosecutor, Accountability, Naeem Tariq Sanghera, Special Prosecutor, Accountability, Arshad Qayyum, Special Prosecutor, Accountability, Dr. Qadeer Alam, AIG (Legal) (Prison) and Asim Javed, D.S. Home Department for the State.

Date of hearing: 26th March, 2019.

2019 S C M R 812

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

ABDUL GHAFFAR ADAMJEE and others---Petitioners

Versus

NATIONAL INVESTMENT TRUST LIMITED and another---Respondents

Civil Appeal No. 157-K of 2016 and C.M.A. No. 1865-K of 2018, decided on 3rd April, 2019.

(On appeal against the judgment dated 04.10.2016 passed by the High Court of Sindh, Karachi in First Appeal No. 50 of 2000)

Per Faisal Arab, J; Mushir Alam, J agreeing; Munib Akhtar, J dissenting.

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

----S. 124---Contract of indemnity---Finance agreement---Sponsors' Undertaking provided by directors of a company---Sponsor directors personally liable as indemnifiers for amount remaining unsatisfied under the finance agreement---Financial institution (respondent) provided a finance facility to a company---Company went into liquidation and certain part of the finance facility remained unpaid, prompting the financial institution to file a recovery suit---Suit was decreed along with markup---Since there was no likelihood that the financial institution could recover the decretal amount from the company, the decree was also executable against the directors of the company (appellants), who were treated as guarantors under a Sponsors' Undertaking ('the Undertaking') executed contemporaneously by them with the agreement of finance---Directors argued that the courts below erred in treating them as guarantors on the basis of the Undertaking as their liability was that of indemnifiers and that too confined to what had been set out in Clauses 1 to 4 of the Undertaking ('the subject clauses') and nothing more; that as the directors neither committed any breach of the subject clauses of the undertaking nor could it be read as a guarantee towards financial obligation of the company under the agreement of finance, therefore, the courts below erred in ordering recovery of decretal amount from them---[Per Faisal Arab, J (Majority view): Clause 6 of the Undertaking stipulated that the directors shall indemnify and keep the financial institution always safe, harmless and indemnified, whereas Clause 7 stipulated that directors' obligations thereunder were joint and several and binding on them until the investment made by the financial institution in the company was fully satisfied---Text of the Sponsor's Undertaking, made it clearly apparent that it was intended to further secure the finance by seeking personal undertaking from the directors in case it no more remained possible for the financial institution to recover it from the company---Hence it could be said that the directors did give personal assurance to the financial institution that in the event it became impossible for it to recover from the company, it could have recourse against them for the loss so incurred---Sponsors' Undertaking was executed by the directors contemporaneously with the agreement of finance so it could be conveniently said that both the documents were part of the same scheme under which financial institution provided finance to the company---Obligation of an indemnifier was not co-extensive with that of the principal debtor and came into existence only when it no more remained legally possible to recover from the principal debtor---From the contents of Clauses 6 and 7 of Sponsors' Undertaking it was evident that the liability of the directors was not made co-extensive with the company, hence it was a contract of indemnity---In liquidation proceedings, the company had been wound-up and the sale proceeds of all its assets had apparently gone to settle claim of a creditor and the financial institution's decree remained unsatisfied---In such circumstances proper stage to initiate recovery against the directors in their personal capacity as indemnifiers under the Sponsors' Undertaking had thus matured -- Only avenue left for the financial institution was to recover its loss from the directors in their capacity as indemnifiers under the Sponsors' Undertaking, which the financial institution could now do by seeking execution of its decree]---[Per Munib Akhtar, J (Minority view): Obligations of the directors were contained in the Clause 5 of the Sponsor's Undertaking which made them "personally liable to all the monetary obligations, detriments, losses that may be sustained by [the financial institution] due to any breach of the covenants herein"---Liability of the directors as regards the monetary losses etc. suffered by the respondent was, thus, conditional upon, and limited to, such being sustained on account of any breach of the covenants i.e. Clauses 1 to 4 contained in the Undertaking---Evidence led at the trial did not show any breach at all of the said Clauses, therefore, insofar as both the directors and the company were concerned, their obligation and liability under Clause 5 was never actualized---No (deemed) event of default occurred under the Undertaking as would, under the Agreement, have allowed the financial institution to demand immediate repayment of the finance from the company, nor were there any monetary obligations, detriments etc. incurred or suffered by the financial institution (on account of the breach of Clauses 1 to 4) as would make the directors liable to it---Clause 6 of the Undertaking was an indemnity clause, but it was ambiguous and uncertain as it neither specified the conduct of the directors or the company which would trigger the application of the said clause, nor specified the conduct against which the financial institution was indemnified---Clause 6 was ambiguous, and that uncertainty left its scope indeterminate---Court did not have to find ways to breathe life into the said provision so as to enable the financial institution to look to the directors in addition to the company for payment of any amounts defaulted by the latter---Sponsor's Undertaking and the finance agreement were part of the same transaction, but only in the sense of relating to the finance that the financial institution proposed to give to the company---Undertaking was not in any legal sense "part" of the finance agreement---Equally, the Undertaking had to be construed and applied on its own terms---Financial institution's obligation to disburse the finance under the finance agreement was, inter alia, conditional upon the directors giving the Undertaking, but that did not make the Undertaking a part of the finance agreement, nor could it affect the legal nature and the proper construction and application of the former---Suit of financial institution against the directors should have been dismissed]---Appeal was dismissed accordingly.

Per Faisal Arab, J

(b) Contract---

----Covenants, interpretation of---While interpreting covenants of a document it was to be seen what was the main purpose and object which brought the parties to the table to sign it---When the real purpose of executing a document became evident, then in what order various covenants were arranged could not be made basis to frustrate it by excluding such covenants from its scope that mattered the most---Hence only that interpretation was to be adopted that served and not vitiated the main purpose with which the document was executed. [Majority view]

Per Munib Akhtar, J

(c) Contract---

----Interpretation---Contract was to be read 'contra proferentem', i.e., when there was any doubt or ambiguity as regards the meaning of it or any words used therein, it would be construed against the person who put it forward.

Co-operators Life Insurance Co. v. Gibbons 2009 SCC 59 and Tam Wing Chuen v. Bank of Credit and Commerce Hong Kong Ltd [1996] UKPC 69 ref.

Per Munib Akhtar, J

(d) Contract---

----Implied terms--- Something ought not to be read or implied into a contract simply because it appeared to be reasonable to do so. [p. 828] I

House Building Finance Corporation v. Shahinshah Hamayun Cooperative House Building Society and others 1992 SCMR 19 and West Pakistan Industrial Development Corporation Karachi v. Aziz Qureshi PLD 1973 SC 222 ref.

Per Munib Akhtar, J

(e) Contract---

----Terms, interpretation of---'Joint' and 'several' liability---Meaning---When there was joint liability, each of the parties was liable for the full amount of the claim---Where the liability was several each bore only his own share of the burden of the claim, and was liable accordingly---In case of 'joint and several' liability the effect was the same as liability that was joint.

Arshad Mohsin Tayebaly, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioners.

Muhammad Masood Khan, Advocate Supreme Court for Respondents.

Date of hearing: 31st December, 2018.

2019 S C M R 830

[Supreme Court of Pakistan]

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

ABU BAKAR FAROOQ through Chairman and others---Appellants

Versus

MUHAMMAD ALI RAJPAR and others---Respondents

Civil Appeals Nos. 845-846 of 2010 and C.As. Nos. 596-L to 599-L of 2013 along with C.M.As. Nos. 4548 of 2014 and 3891 of 2015, decided on 31st January, 2019.

(On appeal against the judgment dated 26.10.2009 passed by Federal Service Tribunal, Islamabad in Appeal No. 751(R) CS/2007)

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 11(3)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 10 & 19---Federal Public Service Commission (Functions) Rules, 1978, R. 3---Ad hoc appointment---Regularization in service---Seniority, reckoning of---Scope---Whether ad hoc employee, who was switched to contract employee and then finally regularized in service could be granted seniority with effect from the date of his ad hoc appointment---Since the appointment on ad hoc basis was a "stop gap" arrangement, therefore, as provided in S. 11(3) of the Civil Servants Act, 1973, it stood terminated either on the expiry of the period for which such ad hoc appointment was made or on the appointment of a person recommended by the Commission---Such ad hoc appointee did not acquire a right to claim his seniority in accordance with S. 8 of the Civil Servants Act, 1973 vis-a-vis the civil servants who were appointed on regular basis on the recommendation of the Commission after going through the selection process---Ad hoc employee neither had right to hold the post beyond the period for which he was appointed nor the government had a right to continue with such ad hoc appointee for a long period of time---Extended appointment on ad hoc basis only arose where the government violated the provision of R. 3 of the Federal Public Service Commission (Functions) Rules, 1978 and without placing a requisition before Commission for regular appointment filled the post on ad hoc basis and then kept on extending the period of such ad hoc appointment---In such a situation the ad hoc appointee clung on to his post knowing fully well that his ad hoc appointment was not in accordance with the prescribed method of appointment and was only a "stop gap" arrangement, till recruitment in accordance with the prescribed method of appointment was made---Such conduct of the government had always been deprecated by the Courts, however, such shortcoming/non-adherence to the legal requirements by the competent authority could earn no benefit for the ad hoc appointee for the simple reason that bestowing the benefits of regular appointment upon an ad hoc employee would not only amount to regularizing unlawful appointment and providing premium to the beneficiary of such wrong but would also amount to opening another door of entry into service of Pakistan by frustrating the only prescribed mode of appointment through the Commission---Appeals were allowed accordingly.

Muhammad Afzal v. Government of the Punjab 1982 SCMR 408; Naila Khalid v. Pakistan PLD 2003 SC 420; Muhammad Wasay Tareen v. Chief Justice of Balochistan 2005 SCMR 464 and Naveeda Tufail v. Government of Punjab 2003 SCMR 291 ref.

Abdul Rahim Bhatti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No. 845 of 2010).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No. 1 (in C.A. No. 845 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Respondents Nos. 2 and 3 (in C.A. No. 845 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Appellants (in C.A. No. 846 of 2010).

Respondent No. 1 in person (in C.A. No. 846 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Appellants (in C.As. Nos. 596-L and 598-L of 2013).

Nemo for Respondent No. 1 (in C.As. Nos. 596-L and 598-L of 2013).

Muhammad Munir Paracha, Advocate Supreme Court for Applicant (in C.M.A. No. 3891 of 2015).

Muhammad Siddique Awan, Advocate Supreme Court for Appellants (in C.A. No. 599-L of 2013).

Respondent No. 1 in person (In C.A. No. 599-L of 2013).

Muhammad Abbas Mirza, Advocate Supreme Court for Respondents Nos. 2 and 3 (In C.A. No. 599-L of 2013).

Date of hearing: 31st January, 2019.

2019 S C M R 842

[Supreme Court of Pakistan]

Present: Faisal Arab and Ijaz ul Ahsan, JJ

FAREED UD DIN MASOOD---Appellant

Versus

ADDITIONAL DISTRICT JUDGE BAHAWALPUR and others---Respondents

Civil Petitions Nos. 478 to 481 of 2019, decided on 22nd February, 2019.

(Against the judgment dated 19.12.2018 of the Lahore High Court, Bahawalpur, passed in Writ Petitions Nos. 7689 to 7692 of 2016)

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 16---Civil Procedure Code (V of 1908), O. I, R. 10---Eviction petition---Dispute regarding ownership of property---Rent Tribunal/Controller, jurisdiction of---Scope---Any dispute with regard to the title or ownership of a property subject matter of eviction proceedings had to be determined by a court of competent jurisdiction---Rent Tribunal/Rent Controller lacked jurisdiction to determine questions of title---Any person could not simply file an application for impleadment in the eviction proceedings for determination of his title to the suit property by the Rent Controller.

Syed Iftikhar Hussain Shah, Advocate Supreme Court for Appellants (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 22nd February, 2019.

2019 S C M R 844

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

SAJJAN SOLANGI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 379 of 2017, decided on 26th March, 2019.

(On appeal against the judgment dated 27.01.2017 passed by the High Court of Sindh, Circuit Court Larkana in Criminal A. No. S-46 of 2015)

Sindh Arms Act (V of 2013)---

----S. 25---Using a firearm with the purpose to commit any crime---Reappraisal of evidence---Weapon recovered on alleged pointation of accused---Benefit of doubt---Accused while in police custody allegedly made a disclosure and got recovered a weapon kept in bushes of a 'guava farm'---Trial Court convicted the accused under S. 25 of the Sindh Arms Act, 2013 and sentenced him to suffer ten years' rigorous imprisonment with a fine---Admittedly, the place of recovery i.e. farm was accessible to everyone and was not in possession of the accused---Owner of the said farm was not associated with the investigation---According to the police witness, many persons of the village were present near the farm but he did not cite any such private person as witness in the case---Mushirnama of recovery and the FIR clearly indicated that it was a 'guava farm' from where the weapon was recovered whereas both the witnesses while making statement in court claimed that the weapon was recovered from a garden of "olives"---Weapon was never exhibited in the court---No expert opinion qua the weapon was available on file to prove that the said weapon was in working condition---In the absence of an expert report, the case of prosecution became doubtful---While extending the benefit of doubt to the accused the conviction and sentence awarded to him by the Trial Court and upheld by the High Court was set aside, and he was acquitted of the charge---Jail petition was converted into an appeal and allowed accordingly.

Mehmood A. Qureshi, Advocate Supreme Court for Petitioner.

Hussain Bux Baloch, Additional P.-G. Sindh for the State.

Date of hearing: 26th March, 2019.

2019 S C M R 846

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

MUHAMMAD RAFIQ---Appellant

Versus

STATE (NAB)---Respondent

Criminal Appeals Nos. 322 and 323 of 2018, decided on 12th February, 2019.

(On appeal against the judgment dated 30.01.2017 of the High Court of Balochistan, Quetta passed in Ehtisab Appeals Nos. 7 and 8 of 2015)

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

----Ss. 18(g) & 34A---Delegation of powers by Chairman, National Accountability Bureau ('NAB')---Scope---Reference filed against an accused by NAB at a time when post of Chairman, NAB was lying vacant---Maintainability---Delegated authority of Director General, NAB to file a Reference after office of Chairman, NAB became vacant---Legality---Authority to file a reference against an accused before the Accountability Court under S. 18(g) of the National Accountability Ordinance, 1999 ('the Ordinance') had been clearly vested in the Chairman, NAB or any officer of the NAB duly authorized by the Chairman---Combined reading of Ss. 18 & 34A of the Ordinance with the provisions of S.R.O. 731(I)/2006 dated 13-06-2006, revealed two striking features regarding the authority of the Chairman, NAB to file a reference against an accused; firstly, the Chairman, NAB had the legal authority to delegate his power to file a reference under S. 18(g) of the Ordinance, and secondly, the Chairman, NAB had delegated to the Director General, NAB the authority to file a reference under S. 18(g) of the Ordinance against, inter alia, a government official in BPS 16 and below---Authority of the Chairman, NAB to delegate his power to file a reference was, in fact, statutory delegation, as it had been vested in him by statute---Such delegated authority had neither been expressed, nor could it be inferred from the provisions of the Ordinance, to be time-bound in any manner whatsoever---In such circumstances, restricting the validity of the said delegated authority to the Director General, NAB to file a reference till the Chairman, NAB held office would be reading beyond the letter of the law---Principles of contractual delegation of authority under the 'principal and agent' regime could not be applied to statutory delegation of power, by Chairman, NAB to the Director General, NAB---At the time of filing of the reference by Director General, NAB against present accused, the delegated power to file a reference had not been revoked by the Chairman, NAB---As the Director General, NAB was competently delegated the authority to file a reference, there was no need for validation or justification of filing a reference by the Director General, NAB on the basis of de facto doctrine---Reference against the accused had been validity filed by NAB---Appeal was dismissed accordingly.

Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Administrative Law (Eleventh Edition) by H.W. R. Wade and C.F. Forsyth; Kelly v. Watson (1985) 64 ALR 113; Aban v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 93 and Johnson v. Veterans Review Board [2002] FCA 1543 ref.

National Accountability Bureau v. Fazal Ahmed Jat 2018 SCMR 1005 distinguished.

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

----Ss. 18(g) & 32---Authority to 'file a Reference' against an accused and authority to 'file an appeal' against decision of Accountability court---Scope and distinction---Authority to file an appeal against the decision of the Accountability Court under S. 32 of the National Accountability Ordinance, 1999, (the Ordinance') had been expressly vested in the Prosecutor General, National Accountability Bureau ('NAB'), if so directed by the Chairman, NAB---For filing an appeal against a decision of the Accountability Court under S. 32 of the Ordinance, the Chairman, NAB had not been vested with the power to delegate his said authority to any other officer of NAB, while in the case of filing a reference under S. 18(g) of the Ordinance, he was empowered to do so. [p. 853] B

(c) Delegation of power---

----Principal and agent---Contractual and statutory delegation of power---Distinction---Principle of "principal and agent" arising out of contractual delegation could not apply to the delegated authority of the delegator and the delegate, which derived its source from an enactment, being statutory delegation. [p. 857] H

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

----Ss. 6(b)(i), 18(g) & 34A---Constitution of Pakistan, Art. 184(3)---Executive keeping post of Chairman, Nationality Accountability Bureau vacant---Judicial review---Scope---Abuse by the executive of the provisions of delegation of authority of the Chairman, National Accountability Bureau ('NAB') under the National Accountability Ordinance, 1999 by keeping the post of the Chairman, NAB vacant for a prolonged period of time would render the same to be justiciable and the said inaction would be exposed to judicial review.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, Muhammad Farooq, Advocate Supreme Court along with Muhammad Kasim Mirjat, Advocate-on-Record for Appellant.

Syed Asghar Haider, PGA along with Haider Ali, Additional PGA and Imranul Haq Khan, Special Prosecutor-General for NAB.

Ch. Aamir Rehman, Additional Attorney General for Federation (on Court's Notice).

Date of hearing: 19th December, 2018.

2019 S C M R 859

[Supreme Court of Pakistan]

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

Dr. TARIQ IQBAL and 8 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Administration Peshawar and others---Respondents

Civil Petition No. 2108, C.M.A. No. 4937 of 2018 in C.P. No. 2108 of 2018, C.P. No. 2299, C.M.A. No. 5180 of 2018 in C.P. No. 2299 of 2018, C.P. No. 3749 of 2018 and C.Ps. Nos. 3785 to 3790 of 2018, decided on 27th February, 2019.

(On appeal from the judgments dated 02.5.2018, 13.9.2018 of the Peshawar High Court, Peshawar passed in W.Ps. Nos. 1715-P/2015, 1714-P/2015, 2345-P/2018, 2909-P/2018, 2910-P/2018, 2911-P/2018, 3776-P/2018, 3777-P/2018 and 3778-P/2018, respectively)

(a) Interpretation of statutes---

----Purposive rather than a literal approach of interpretation of a statute was to be adopted.

Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710; Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90 and Saif-ur-­Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885 ref.

(b) Interpretation of statutes---

----Statute beneficial in nature---Where the tone and tenor of a statute was beneficial in nature, its provisions must necessarily be interpreted liberally so as to advance the benefit rather than curtail it.

Saif-ur-­Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; 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) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 16---Allotment of Government accommodation under the legal dispensation that existed prior to the promulgation of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018 ('the Act of 2018')---In terms of S. 16 of the Act of 2018, all allotments of residential accommodation made prior to the promulgation of the Act of 2018 must pass the test of being consistent and subject to the provisions of the said Act. [p. 864] D

(d) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7(5)---Allotment of Government accommodation---Special quota for son, daughter or spouse of retired/dead public office holder---Scope---In terms of S. 7(5) of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018, offspring and spouses of retired or deceased public office holders, if otherwise, eligible may be allotted or could retain official residential accommodation in such capacity, if the residential accommodation in question was part of the quota reserved. [p. 864] E

(e) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7(3)---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018, R. 18---Management and Allotment of residential accommodation---Scope---Government department, office or agency having its own accommodation---Section 7(3) of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018 ('the Act of 2018') provided that a public office holder could either be entitled to or eligible for allotment in the general pool (under the Act of 2018) or in the pool of his own department, office or agency, if it had such a pool---Public office holder not eligible for allotment under the pool of his own department, office or agency, was eligible for allotment in the general pool, in terms of Act of 2018---In case of subsequent transfer or promotion of public office holder to a designation, making him eligible/entitled to the official residential accommodation in the pool of his own department, office or agency, his rights would be governed by R. 18 of the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018. [p. 864] C & F

Naveed Akhtar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No. 2108 of 2018).

M. Younis Thaheem, Advocate Supreme Court for Petitioners (in C.P. No. 2299 of 2018).

Malik Manzoor Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos. 3749, 3785-3790 of 2018).

M. Shahid Kamal, Advocate Supreme Court for Applicants (in C.M.A. No. 10119 of 2018 in C.P. No. 3749 of 2018 and C.M.A. No.10133 of 2018 in C.P. No. 3785 of 2018).

Barrister Qasim Wadood, Additional A.-G. Khyber Pakhtunkhwa, Taimoor Khattak, DS, KPK and Noor Rehman, Estate Officer for Respondents (in all cases).

Date of hearing: 27th February, 2019.

2019 S C M R 865

[Supreme Court of Pakistan]

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

LIAQUAT NATIONAL HOSPITAL---Appellant

Versus

PROVINCE OF SINDH and others---Respondents

Civil Appeal No. 93 of 2015, decided on 21st February, 2019.

(Against the judgment dated 15.07.2014 passed by the High Court of Sindh at Karachi in C.P. No. D-1100 of 2012)

(a) Sindh Urban Immovable Property Tax Act (V of 1958)---

----S. 4(f)---Sindh Urban Immovable Property Tax Rules, 1958, Rr. 23 & 24---Societies Registration Act (XXI of 1860), Preamble---Liaquat National Hospital/Institute of Postgraduate Medical Studies and Health Sciences ('the subject hospital')---Property tax, payment of---Charitable institution---Charitable purposes---Exemption from payment of property tax---Subject hospital by virtue of its registration under the Societies Registration Act, 1860 ipso facto did not become entitled to exemption from payment of property tax visualized by S. 4(f) of the Sindh Urban Immovable Property Tax Act, 1958 ('the Act')---Exemption from payment of property tax was available to a charitable institution if on the basis of an application moved in such regard, the competent officer of the Department came to the conclusion that its assets were used exclusively for charitable purposes---Building of the subject hospital was not used exclusively for charitable purposes---Counsel for the subject hospital admitted that the hospital charged fee for the services provided to patients who could pay for the same, but provided subsidies and rebates to the needy patients as well as some charitable healthcare services---At best, the subject hospital was providing services to paying patients (non-charitable) and non-paying/partly paying patients (possibly charitable)---In view of such circumstances the immovable property of the subject hospital was not used exclusively for charitable purposes---Fact that the profits of the subject hospital were not distributed amongst the members did not by itself establish that it was a charitable organization bringing it within the ambit of S. 4(f) of the Act read with Rr. 23 & 24 of the Sindh Urban Immovable Property Tax Rules, 1958 ('the Rules')---Audited accounts of the subject hospital as well as the analysis of such accounts undertaken by the Tax department for the years 1982 to 2002, clearly established that only paltry amounts had been spent on public charity by way of discounts, rebates and concessions in fee presumably to the poor and needy patients; that the subject hospital extensively engaged in commercial activities and spent a very low portion of its funds on public charity while charging high fees for providing healthcare and diagnostic services---Subject hospital was not entitled to the benefit of exemption from payment of property tax as visualized in S. 4(f) of the Act read with Rr. 23 & 24 of the Rules---Appeal was dismissed accordingly.

(b) Interpretation of statutes---

----Fiscal statute---Exemption from tax---Burden of proof---One who claimed exemption (from payment of tax) must establish that he fell within the four corners of such exemption.

Qadir H. Sayeed, Senior Advocate Supreme Court for Appellant.

Sabtain Mehmood, Assistant A.-G. Sindh, Muhammad Akhtar Azad, Director Taxes-I and Shahabuddin Khatri, Director (HQ) Excise and Taxation, Sindh for Respondents Nos. 1 - 3.

Date of hearing: 21st February, 2019.

2019 S C M R 872

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

SAJJAN SOLANGI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 380 of 2017, decided on 26th March, 2018.

(On appeal against the judgment dated 27.01.2017 passed by High Court of Sindh, Circuit Court Larkana in Criminal A. No. S-45 of 2015)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Present case was registered after father of the deceased allegedly sent information to the concerned Station House Officer (SHO)/police witness on a mobile phone that his accused son had murdered his deceased daughter under the allegation of 'Kari'---Said police witness was examined as a witness and his whole statement was based upon the information allegedly passed to him by the father of the deceased and the accused---Police witness also did not mention the cell phone number from which he received the information upon which the FIR was chalked out---Other witness also did not receive the information about the crime himself and it was told to him by the police witness---Admittedly, the father was never produced by the prosecution nor he was summoned as a witness to confirm the assertion made by the two witnesses---Conviction and sentence of accused was set aside in circumstances and he was acquitted of the charge---Jail petition was converted into an appeal and the same was allowed accordingly.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 71---Qatl-i-amd--- Reappraisal of evidence---Hearsay evidence--- Such evidence could not be made basis of a conviction.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Extra-judicial confession before police---Such confession was inadmissible in evidence.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence-- Recovery of weapon and crime empties on alleged pointation of accused---Weapon was not sent to the forensic expert for comparison or to determine whether it was in working condition or not---In the absence of any positive report of Forensic Science Laboratory, the recovery of the weapon was inconsequential---Allegedly, weapon was recovered from some bushes on pointation of accused, however the place was accessible to everyone---Furthermore private persons were also present in the area as admitted by the witness but only police officials were made witness of the said recovery---Conviction and sentence of accused was set aside in circumstances and he was acquitted of the charge---Jail petition was converted into an appeal and the same was allowed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Medical evidence---Scope---Medical evidence at the most could be supporting evidence to the ocular account but it could not identify the assailant by itself.

Mehmood A. Qureshi, Advocate Supreme Court for Petitioner.

Hussain Bux Baloch, Additional P.-G. Sindh for the State.

Date of hearing: 26th March, 2019.

2019 S C M R 875

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sajjad Ali Shah, JJ

COMMISSIONER INLAND REVENUE, ZONE-I, LARGE TAXPAYER UNIT-II, KARACHI---Petitioner

Versus

Messrs ORI TECH OIL (PVT.) LTD.---Respondent

Civil Petition No. 407-K of 2017, decided on 5th April, 2019.

(On appeal against the judgment dated 05.7.2017 of the High Court of Sindh, Karachi passed in C.P. No. D-2358 of 2015)

Sales Tax Special Procedure Rules, 2007---

----R. 58B, proviso (i)---Sales Tax Act (VII of 1990), S. 2(17)---Value Addition Tax (VAT), levy of---'Manufacturer', definition of---Scope---Raw material imported by a "manufacturer" for his own consumption---Respondent-company, imported certain base oil and additives for use as raw material, which raw material they got blended into lubricants under their brand name by a vendor under a Toll Blending Agreement---Respondent (importer) supplied the imported raw material along with their packaging material to the vendor and received back the raw material in the form of lubricants, duly packed in their packaging, for them to sale the same in the market---Processing/blending by the vendor was done under the Toll Blending Agreement with the formulation/specification of the respondent, and was paid by the respondent, the blending/conversion charges @ Rs.7 per litre---Contention of the tax department was that since the respondent (importer) neither had any manufacturing facility, nor had they undertaken any manufacturing themselves, and were also not registered as a 'manufacturer' with the sales tax authority, thus, they could not claim themselves to be a 'manufacturer', to enable them to avail the exemption extended through proviso (I) to R. 58B of the Sales Tax Special Procedure Rules, 2007 '(the Rules of 2007')---Held, that reading of proviso (I) to R. 58B of the Rules of 2007 showed that the VAT levied through said rule, was not chargeable in respect of the goods imported by a "manufacturer" for his own consumption---For availing the said exemption, the importer had to show that in the first place, he was a "manufacturer" and, secondly, that the said goods had been so imported by him for his own consumption i.e. for manufacturing/producing of his own product---Although the respondent did not have any manufacturing facility, however, the same did not denude it of the status of a "manufacturer" in the context of the Sales Tax Act, 1990 ('the Act') , and as defined by S. 2(17) thereof---Section 2(17) of the Act gave much broader meaning to the word "manufacturer" by including those who owned, held, claimed, or used any patent, proprietary or other rights to the goods being manufactured whether in their name or on their behalf---Admittedly imported raw material was delivered to the vendor in his capacity as a bailee only, for it to blend it for the respondent, whereafter it returned the same to the respondent blended into lubricants at a cost paid by the respondent---Such process of delivery of the subject goods to the vendor could not by any stretch of imagination be termed as a taxable supply---At no point in time, during the entire process any dispossession of the imported goods was affected from the respondent to, or in favour of the vendor and at no time during the course of such transaction the respondent lost ownership of the imported goods, or the product made thereof, nor did the vendor acquire any proprietary rights therein as such---Manufacturing/blending, of the subject imported material into lubricants was carried out under the orders of, for and on behalf of the respondent, and in their name---Brand name appended to the packaging and attributed to the lubricants under which name the lubricants were sold, and marketed, was registered in the name of, and was owned by the respondent---Respondent thus possessed all the attributes of a 'manufacturer' as prescribed through sub-clause (c) of clause 17 of S. 2 of the Act, and, therefore, was fully entitled to the exemption from payment of VAT provided for under R. 58B of the Rules of 2007---Petition for leave to appeal was dismissed in circumstances.

Syed Mohsin Imam, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Syed Naveed Amjad Andrabi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

2019 S C M R 880

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

AINUDDIN and others---Petitioners

Versus

ABDULLAH and another---Respondents

Civil Petition No. 107 of 2018, decided on 14th February, 2019.

(Against the judgment dated 24.11.2017 passed by the High Court of Balochistan Quetta in Civil Revision No.173 of 2014)

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

----Ss. 12, 42 & 54---Limitation Act (IX of 1908), S. 3---Suit for declaration and permanent injunction filed on basis of an alleged agreement to sell immoveable property---Limitation for filing suit, expiry of---Lapse of 52 years in filing suit---Alleged agreement to sell was executed on 24-01-1957, and the plaintiffs waited till the year 2009 to file a suit for declaration and permanent injunction---Plaintiffs let more than 52 years lapse before approaching the Court for asserting their rights, despite the fact that they alleged that on the demise of the vendor they had approached his legal heirs who had promised to transfer the property in their favour in accordance with the terms and conditions of the agreement to sell---Admittedly, the property was transferred to the legal heirs of vendor through a mutation of inheritance in the year 2002, yet the plaintiffs waited for another seven years to approach the Court---Plaintiffs were obviously not vigilant in claiming and asserting their rights and as such let the period of limitation expire before approaching the Court---Such delay had not been explained in even a remotely convincing manner---Court below had rightly dismissed the suit---Petition for leave to appeal was dismissed accordingly and leave was refused.

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

----S. 12---Agreement to sell immoveable property---Proof---Marginal witnesses---Plaintiffs/alleged vendees failed to prove the alleged agreement to sell---Out of two marginal witnesses who had allegedly witnessed the execution of the agreement to sell, only one was produced---Credibility of said witness was questionable in view of the fact that he had purportedly signed the document, however, when he was cross-examined, he produced his Computerized National Identity Card (CNIC) which bore his thumb impression instead of signatures---No explanation was offered explaining failure of the plaintiffs to produce the other marginal witness---Court below had rightly dismissed the suit---Petition for leave to appeal was dismissed accordingly and leave was refused.

Tariq Mahmood, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners.

Abdul Hadi Tareen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent No.1.

Date of hearing: 14th February, 2019.

2019 S C M R 906

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

PAKISTAN MATCH INDUSTRIES (PVT.) LTD. and others---Appellants

Versus

ASSISTANT COLLECTOR, SALES TAX AND CENTRAL EXCISE MARDAN and others---Respondents

Civil Appeals Nos. 94 of 2012 and 243 of 2013, decided on 11th February, 2019.

(On appeal from the order dated 29.9.2011 passed by the Peshawar High Court, Peshawar in W.P. No. 412 of 2001 and T.R. No.2 of 2006)

(a) Interpretation of statutes---

----'Proviso'---Meaning and scope---Provisos were intended to qualify the main part of the provision and carve out an exception from the same, taking out (as it were) something that but for the proviso would be included therein---Such provisos were generally referred to as "true" provisos---Sometimes a proviso was construed to be a substantive clause that operated in its own right, however, such instances were rare, and for a proviso to be so construed the language of the provision must be clear.

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

----S. 13(1)---S.R.O. 77(I)/95 dated 19-01-1995 ("SRO 77"), as amended by S.R.O. 87(I)/96 dated 30-01-1996---Exemption from sales tax---'Proviso', interpretation of---First proviso to 'SRO 77' provided that exemption (from sales tax) shall be available to only such industrial units which had opened letters of credit for the import of plant and machinery upto the 31st January, 1996---Question was whether the exemption was limited only to those industrial units that were set up with imported plant and machinery, or was it also available to those set up with plant and machinery that was locally manufactured---Held, that a reading of SRO 77 made it clear that the main paragraph thereof, when read on its own and without taking the first proviso into account, would apply to all industrial units otherwise within the scope thereof, i.e., without any reference to whether the plant and machinery were locally manufactured or imported---First proviso to SRO 77 was only a "true" proviso and not a substantive clause operating in its own right; it carved out an exception, and nothing more---First proviso was not intended to operate, as affecting the whole of the field covered by the main paragraph, and altering and limiting it (to only those industrial units that were set up with imported plant and machinery)---Appeal was disposed of accordingly.

(c) Interpretation of statutes---

----Fiscal statute---Exemption from tax---Where two reasonable interpretations of an exemption were possible, the one against the taxpayer and in favour of the revenue would be adopted.

(d) Interpretation of statutes---

----Fiscal statute---Exemption from tax---Where a taxpayer fairly came within the scope of an exemption, then the same could not be denied on the basis of some supposed intention of the law-maker.

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

----S. 47---Reference to High Court---Scope---'Questions of law'---In case of a tax reference before the High Court, all factual aspects of the case were closed by, and at the level of, the Appellate Tribunal; and it was only questions of law that could travel to the High Court---Factual points could not be allowed to be opened or (re-)agitated, unless there had been a material misreading or non-reading of the evidence, which was itself a question of law that could be taken to the High Court.

Imtiaz Ali, Advocate Supreme Court and Mahmood A. Shaikh, Advocate-on-Record for Appellants (in C.A. 94 of 2012).

Isaac Ali Qazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. 243 of 2013).

Dr. Farhat Zafar, Advocate Supreme Court for Respondents (in both cases).

2019 S C M R 915

[Supreme Court of Pakistan]

Present: Faisal Arab and Syed Mansoor Ali Shah, JJ

Civil Appeal No.805 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 06.1.2016, passed in Appeal No.482(R)CS/2013)

and

Civil Appeals Nos.1438 and 1443 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 18.2.2016, passed in Appeal No.1031(R)CS/2013)

and

Civil Appeals Nos.1439 and 1442 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 16.2.2016, passed in Appeal No. 507(R)CS/2013)

and

Civil Appeals Nos.1440, 1444 and 1445 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 11.2.2016, passed in Appeals Nos.2088, 1984 and 2088(R)CS/2012)

and

Civil Appeal No.1441 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 19.2.2016, passed in Appeal No.3029(R)CS/2012)

and

C.M.As. Nos.2841 and 2842/2016 in C.As.1438 and 1439 of 2016

(stay applications)

and

Civil Petitions Nos.124 to 128, 269 to 271 of 2017

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 02.11.2016, passed in M.Ps No. 1920

in Appeal No.831(R)CS/2012 etc.)

and

Civil Petitions Nos.3446 and 3447 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 20.1.2016, passed in Appeals Nos.1519 and 2118(R)CS/2015)

FEDERATION OF PAKISTAN through Secretary Finance

and others---Appellants

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Appeals Nos. 805, 1438, 1443, 1439, 1442, 1440, 1444, 1445, 1441, C.M.As. Nos. 2841, 2842 of 2016 in C.As. Nos. 1438, 1439 of 2016, Civil Petitions Nos. 124 to 128, 269 to 271 of 2017 and Civil Petitions Nos. 3446 and 3447 of 2016, decided on 16th April, 2019.

Civil service---

----Salary and pension, increase in---Increase of Rs.300/- per month in salary and 10% in pension, entitlement to---Prime Minister announced ad hoc relief for the government employees including an increase of Rs.300/- per month in their salaries w.e.f. 01-03-1997 and an increase in the pension by 10% (ten percent)---Such announcement was officialized through Office Memoranda, wherein it was clarified that benefit of an increase in pension was admissible to those Government servants who were retired prior to 01-03-1997---Respondents (government employees), who admittedly retired after 01-03-1997, claimed that they were entitled to 10% increase in the pension after they had already availed the benefit of increase in monthly salary of Rs.300/- while they were in service---Held, that ad hoc relief was extended by the then Prime Minister by granting an increase of Rs.300/- in the salary of government employees and an increase of 10% in the pension of the employees who retired prior to the date 01-03-1997---Relevant Office Memoranda showed that two distinct reliefs were granted, one for the employees in service through increase in salary and the other for retired employees through increase in pension--- Retired employees were those who retired prior to 01-03-1997, as had been clarified in one of the Office Memoranda---Ad hoc relief of 10% increase in pension was only admissible to employees who stood retired prior to 01-03-1997---Respondents, thus, could not claim both the benefits; one of increase in the monthly salary by Rs.300/- while in service; and the other of increase in pension after retirement---Cutoff date of 01-03-1997 was critical and had relevance, as it split the employees into two broad categories of in service employees on the cutoff date and retired employees on the cutoff date for the purposes of the ad hoc relief---Extending 10% increase in pension to the employees who were in service on 01-03-1997 went against the scheme of the ad hoc relief as it created an imbalance between the two classes of employees by extending unjust advantage to one class of employees i.e., the in service employees on the cutoff date, who would walk away with two distinct ad hoc reliefs (i.e., increase in salary and increase in pension after retirement) when they had been promised only one.

Sohail Mehmood, DAG for Appellants (in C.As. Nos. 805, 1441 to 1445 of 2016 and C.Ps. Nos. 3446 and 3447 of 2016).

Hafiz S.A. Rehman Senior Advocate Supreme Court for Appellants (in C.As. Nos. 1438 to 1440 of 2016).

Syed Ishtiaq Haider, Advocate Supreme Court for Appellants (in C.Ps. 124 to 128 and 269 to 271 of 2017).

Ishtiaq Haider, Advocate Supreme Court along with Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.A. No. 805 of 2016).

2019 S C M R 919

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Qazi Faez Isa, JJ

CHIEF EXECUTIVE MEPCO and others---Petitioners

Versus

MUHAMMAD FAZIL and others---Respondents

Civil Petitions Nos. 866-L and 867-L of 2015, decided on 18th April, 2019.

(On appeal against common order dated 06.03.2015 passed by the Lahore High Court, Multan Bench, Multan, in W.Ps. Nos. 1712 and 5133 of 2014)

(a) Punjab Industrial Relations Act (XIX of 2010)---

----Ss. 44(4) & 47(3)---Constitution of Pakistan, Art. 199---Dismissal from service due to absence without sanctioned leave---Reinstatement in service---Back benefits, grant of---Discretion of Tribunal/Court---Employee-respondent was dismissed from service for being absent without sanctioned leave---Labour Court accepted the respondent's grievance petition and set aside order of his dismissal but at the same time directed holding of inquiry against the respondent---Back benefits were not allowed by the Labour Court---Labour Appellate Tribunal reinstated respondent in service but without back benefits---High Court upheld order of reinstatement of respondent and also allowed him back benefit on the basis that the respondent remained on sanctioned leave---Legality---Record showed that there was no sanction of leave to the respondent by the employer---Respondent's very application for grant of leave was not signed by him and it also did not contain the order of the competent authority sanctioning the same---Respondent had remained absent from duty not only for the period for which he sought leave but also beyond that period, therefore, the High Court was not justified to hold that the respondent had remained on sanctioned leave---Both the Labour Court and the Appellate Tribunal exercised discretion in not granting back benefits to the respondent, and such exercise of discretion was not without lawful authority---Where the Court concerned reinstated the employee in service, it was not bound to grant back benefits automatically rather it was within the discretion of that Court to grant back benefits or not---Exercise of such discretion could not be interfered with by the High Court in exercise of writ jurisdiction unless it was shown that such discretion had been exercised without lawful authority and was of no legal effect---Impugned order of the High Court in the present case to the extent of granting back benefits to the respondent could not be sustained in the eyes of law being in excess of the jurisdiction vested in it, and was accordingly set aside---Petition for leave to appeal was converted into appeal and partly allowed.

Abdul Majid v. Chairman, WAPDA and 2 others 1990 SCMR 1458; Muhammad Tufail v. Divisional Forest Officer, Forest Division, Lahore and 3 others 1990 SCMR 1708; Humayun Badshah v. Habib Bank Limited and 3 others 1996 SCMR 1606 and Syed Kamaluddin Ahmed v. Federal Service Tribunal and others 1992 SCMR 1348 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Question of fact or law decided by Tribunals/courts subordinate to the High Court--- Where the Court or the Tribunal had jurisdiction and it determined specific question of fact or even of law, unless patent legal defect or material irregularity was pointed out, such determination could not ordinarily be interfered with by the High Court while exercising jurisdiction under Art. 199 of the Constitution.

Rao Muhammad Iqbal, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record (absent) for Petitioners.

Asad Munir, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2019 S C M R 924

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

PAKISTAN TELECOMMUNICATION AUTHORITY,PTA HEADQUARTERS, ISLAMABAD---Petitioner

Versus

PAKISTAN MOBILE COMMUNICATION LIMITED---Respondent

Civil Petition No. 1247 of 2016, decided on 2nd April, 2019.

(Against the judgment dated 19.02.2016 of the Islamabad High Court, Islamabad passed in F.A.O. No. 34 of 2012)

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

----Ss. 7(1) & 7(2)---Cellular Mobile Network Quality of Service (QoS) Regulations, 2011, Regln. 10(1)---Appeal against "decision or order" of the Pakistan Telecommunication Authority ('the Authority') before the High Court---Scope---Cellular mobile services company ('cellular company')---Quality of service (QoS) survey carried out by Pakistan Telecommunication Authority ('the Authority')---After the QoS survey results were compiled the Authority issued a show cause notice to the cellular company as its quality of service was below standards---Instead of replying to these show cause notices the cellular company filed an appeal before the Authority under S. 7(2) of the Pakistan Telecommunication (Re-organization) Act, 1996 ('the Act') contending that the QoS survey was conducted without jurisdiction and therefore the show cause notices issued subsequent to the survey were also without jurisdiction---Appeal filed under S. 7(2) of the Act was dismissed on the grounds that Act and Cellular Mobile Network Quality of Service (QoS) Regulations, 2011 ('the Regulations') mandated the monitoring of services provided by licensees and specifically provided for conducting surveys and that the survey was conducted pursuant to the direction of the Authority therefore it was not a "decision or order" of an officer of the Authority which could be challenged under S. 7(2) of the Act---Cellular company assailed the decision of the Authority by filing an appeal under S. 7(1) of the Act before the High Court, which allowed the appeal and directed the Authority to conduct a new QoS survey---Held, that decision of the Authority was in accordance with S. 7(2) of the Act---Appeal preferred by the cellular company before the High Court was incompetent as there was no decision or order of the Authority; there was also no decision on the show cause notices---High Court could not suspend or strike down the said show cause notices in exercise of its appellate jurisdiction under S. 7(1) of the Act---High Court's appellate jurisdiction under the Act commenced once there was a decision or order, however, there wasn't any in the present case---Authority did have the power to order a survey to be conducted in terms of Regln. 10(1) of the Regulations---Impugned judgment of the High Court had been passed by disregarding S. 7(1) of the Act, therefore, it was set aside---Supreme Court directed that in case the officers of the Authority wanted to proceed with the matter of the show cause notices they would grant at least seven days to the cellular company to submit its reply thereto; that if the reply submitted was not found to be satisfactory or none was submitted, the cellular company be granted a hearing where after the matter shall be decided, and that no challenge could be made or entertained till a decision or an order---Petition for leave to appeal was converted into appeal and allowed accordingly.

Mian Shafaqat Jan, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Khurram Siddiqui, Director Law, PTA for Petitioner.

Azid Nafees, Advocate Supreme Court for Respondent.

2019 S C M R 930

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mushir Alam and Syed Mansoor Ali Shah, JJ

KHAIR-UL-BASHAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 94 of 2019, decided on 8th April, 2019.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 11.9.2018, passed in Criminal Appeal No. 05 of 2017)

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

----R.6---Control of Narcotic Substances Act (XXV of 1997), S. 36(1)---Narcotics---Government analyst report, preparation of---Mandatory requirements---Report of the Government Analyst, prepared in consequence of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, must provide for, firstly, tests and analysis of the alleged drug; secondly, the results of the test(s) carried out, and, thirdly the test protocols applied to carry out these tests---Said three elements formed the fundamental and the core elements of a valid Report prepared by a Government Analyst---Non-compliance of R. 6 and absence of any of the said mandatory elements/requirements frustrated the purpose and object of the Control of Narcotic Substances Act, 1997 ('the Act'), thereby diminishing the reliability and evidentiary value of the Report---Under S. 36 of the Act, the report of the Government Analyst, whilst being admissible in evidence without formal proof, was rebuttable and could be questioned by the accused, inter alia, on the ground of non-compliance of the information required under R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Judgment reported as State v. Imam Bakhsh (2018 SCMR 2039) purposively interpreted the Act and (rightly) found R. 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysts.

State v. Imam Bakhsh 2018 SCMR 2039 affirmed.

2015 SCMR 1002 ref.

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

----R.6---Control of Narcotic Substances Act (XXV of 1997), S. 36(1)---Narcotics--- Government analyst report--- Deficiencies--- Whether prosecution should be allowed re-testing of samples in case of a deficient report prepared by the Government analyst---Held, that re-testing of the drug, in case of a deficient report would amount to giving a premium to the prosecution for its mistakes and lapses---Any flaw in the case of the prosecution must only benefit the accused---Sending the alleged drugs for re-testing would be giving another chance to the prosecution to build its case, which was not the role or business of the court---Besides there was a likelihood that the chain of custody of the alleged drug was compromised with the passage of time.

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

----R. 3---Control of Narcotic Substances Act (XXV of 1997), S. 35---Narcotics---Government analyst---Qualifications---Concept of testing under the Control of Narcotic Substances Act, 1997 ('the Act'), the establishment of the testing laboratories, tests and analysis and the report of the Government Analyst were premised on the assumption that the Government Analyst possessed the prescribed qualifications provided under S. 35 of the Act read with R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules') which provided that the Government Analyst shall be a person who has a degree in Pharmacy or Pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognized by the Federal Government for such purpose and had not less than three years postgraduate experience in the test and analysis of drugs---Analysts who meet the said qualifications provided under the Act and the Rules must prepare these reports.

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

Muhammad Jaffar, DPG for the State.

2019 S C M R 939

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Sardar Tariq Masood, JJ

SME BANK LIMITED through President Islamabad and others---Appellants

Versus

IZHAR UL HAQ---Respondent

Civil Appeal No. 1257 of 2012, decided on 15th April, 2019.

(On appeal against the judgment dated 27.09.2012 passed by the Islamabad High Court, Islamabad, in W.P. No. 322 of 2012)

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2), proviso---Intra-Court appeal---Maintainability---Where the proceedings from which the writ petition had arisen provided for either review, revision or appeal, then in terms of proviso to S. 3(2) of the Law Reforms Ordinance, 1972, remedy of Intra Court appeal would not be available against the judgment passed by the Single Judge in the writ petition.

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

----S. 11---Constitution of Pakistan, Art. 199---Res judicata---Scope---Relief denied by the High Court in a writ petition claimed again by the petitioner in a second writ petition---Pursuant to a penalty imposed upon the Bank employee/respondent, he filed (first) writ petition before the High Court claiming that benefit of Voluntary Separation Scheme(VSS) and certain salaries and allowances be paid to him, and that the Bank should calculate the benefits of VSS on the basis of his last pay drawn with 20% mark up---Only relief granted to employee by the High Court, out of the prayers made by him, was that of VSS benefit and no other prayer, contained in the writ petition, was allowed by the High Court---Employee neither sought review of the said judgment nor challenged the same before the Supreme Court rather the judgment itself was accepted by him and the payment made to him under such judgment was received by him 'under protest'---Receiving of benefit 'under protest' was of no consequence for that the respondent admitted that such payment settled his dues of VSS but the remaining dues, as prayed by him in his first writ petition were not granted to him---Employee filed a second writ petition claiming salaries and allowances and that his VSS benefits be calculated on the basis of last pay drawn with 20% mark up (reliefs already prayed for but not accepted in the first writ petition)---Employee ought to have taken measures for granting him other prayers contained in the first writ petition either by seeking review or by filing proceeding before the Supreme Court, which he did not do---Further, the principle of res judicata with all its force would apply to the case of the employee for that his second writ petition against the Bank would not be maintainable for granting him the relief, which was not allowed to him by the High Court earlier for that the law assumed that such relief stood specifically denied to him by the High Court while passing judgment in the first writ petition---Appeal was allowed accordingly.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Riffaqat Hussain Shah, Advocate-on-Record for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

2019 S C M R 944

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

SANA ULLAH---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and another---Respondents

Civil Petition No. 4283 of 2017, decided on 10th October, 2018.

(On appeal from the order dated 5.6.2017 passed by the Punjab Service Tribunal Lahore in Appeal No. 2690 of 2015)

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)(iv)--- Police official--- Serious abuse of authority---Dismissal from service---Admittedly the petitioner-police official stopped two men and a woman travelling on the road late at night---Petitioner could not give any explanation or reason for stopping the travelers except his suspicion about them---Petitioner admitted taking the said persons to the police station when clearly there was no allegation or disclosure of commission of a cognizable offence committed by the said persons---Leaving aside the disputed allegations of bribery the admitted facts reflected the mindset of the petitioner and constituted a serious abuse of authority---With such abuse of authority interfering with the lives of ordinary citizen one could infer that the purpose of the petitioner was to extract some advantage, whether pecuniary or otherwise---In such circumstances, the punishment of dismissal from service inflicted on the petitioner was justified---Petition for leave to appeal was dismissed and leave was refused.

Khalid Mansoor v. Director, FIA, Rawalpindi 2008 SCMR 1174 distinguished.

Pervaiz Inayat Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2019 S C M R 946

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Yahya Afridi, JJ

HABIB BANK LIMITED---Appellant

Versus

GULZAR KHAN and others---Respondents

Civil Appeal No. 1189 of 2014, decided on 11th April, 2019.

(On appeal against the Judgment dated 19.03.2014 passed by the Lahore High Court, Lahore, in W.P. No. 21698 of 2011)

Industrial Relations Ordinance (XCI of 2002)---

----S. 2(xxx)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9(1)---Civil Procedure Code (V of 1908), O. XXIX, R. 1---"Workman"---Scope---Whether a Bank manager (Officer-Grade II) was a workman---Grievance petition before Labour Court filed by a Bank manager---Maintainability---Respondent-Bank manager admitted in his evidence, that his duties included issuing of drafts and cheques, opening of accounts, closing of cash with signature of second officer, depositing of cash in the strong room and locking the same---All affairs of the branch were under his management and control, even the entire cash and record of the Bank relating to the branch as well as all communications of the branch were under his supervision, upon which he was required to take decisions as to how the same had to be dealt with in the best interest of the Bank---Such functions of the Manager amply demonstrated the nature of his work, which was mainly managerial and supervisory and not of a clerical nature---Functions of the Manager did not fall within the ambit of term 'workman' as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or the Industrial Relations Ordinance, 2002---Further S. 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 stated that a branch manager of the Bank was competent to file a suit on behalf of the Bank---In such regard, reference could also be made to the provision of O. XXIX, R. 1, C.P.C., which provided that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who was able to depose to the facts of the case---Person who was authorized by law to file a suit on behalf of a Bank in the Court (and verify and sign pleadings) could not be considered to be a 'workman'---Labour Court did not have jurisdiction to entertain the grievance petition filed by the Bank manager---Appeal was allowed accordingly.

National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and 2 others 1993 SCMR 672; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475 = 2009 PLC 281; Javaid Hussain Naqi v. Member Board of Directors, MCB and others 2009 PLC 260 and Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited 2009 SCMR 857 ref.

Faisal Mehmood Ghani, Advocate Supreme Court for Appellant.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents.

2019 S C M R 956

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

Mian SOHAIL AHMED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 306-L, 307-L and 308-L of 2012, decided on 24th April, 2019.

(Against the judgment dated 25.01.2012 passed by the Lahore High Court, Lahore in Criminal Appeal No. 383 of 2007 and Murder Reference No. 44 of 2007)

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

----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Belated post-mortem examination---Deceased and complainant were in their car, when the accused and the co-accused allegedly tried to rob them---During the incident the deceased was shot and murdered---Accused persons were sentenced to death, however on appeal the sentence of one of the accused was reduced to imprisonment for life---Held, that case of the prosecution rested on the ocular account of two eye-witnesses---Testimony of one of the said witnesses and his presence at the scene of the crime had been rightly disbelieved by the High Court---According to the doctor at the hospital the post-mortem examination took place 15 hours after the body of the deceased was brought to the hospital---Such delay in the post-mortem examination, when the occurrence was promptly reported and formal FIR was registered within 15 minutes gave rise to an inference that the incident was not reported as stated by the prosecution---Complainant, who claimed to be on the passenger seat, must have single-handedly moved the deceased, who was on the driving seat, to another seat in the car, and in the process soiled other seats and his clothes with blood; however, there was no evidence on the record to support such fact---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

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

----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Medical evidence---Nature of bullet wound---Site-plan showed one of the accused to be standing next to the driving seat of the car at a distance of 4 feet---Fire-shot from such short distance was likely to cause blackening but the medical evidence did not support this, raising suspicion that the events may have unfolded differently than as reported---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

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

----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Presence of deceased at the site of occurrence doubtful---Deceased and complainant were in a car outside a godown, where the accused persons allegedly tried to rob them and in the process shot and murdered the deceased---In the absence of any supporting evidence, the presence of the deceased at the site of occurrence was highly improbable considering that the deceased was a doctor, employed with the social security department of the Government, having no evident interest in the business of the complainant or any convincing evidence to show that the godown, where the incident took place, fell in the way to his residence---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt---Appeals were allowed accordingly.

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

----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Recovery of weapon doubtful---Investigation Officer deposed that the recovery of pistol was effected from a house whose ownership he failed to ascertain---According to the investigating officer it was a double storied house and recovery was effected from the ground floor where other family members also resided--- Memorandum of recovery showed that the pistol was recovered from an open room lying under rough clothes, therefore, it would be unsafe to rely on such recovery for a conviction on a capital charge---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

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

----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Test identification parade, infirmities in---Description of suspects given in the FIR by complainant or witnesses---Test identification parade conducted by the Special Judicial Magistrate was fraught with several infirmities diminishing its probative and evidentiary value---Brief description of the two unknown persons (later on identified as the accused persons) in the First Information Report (FIR) mentioned their height, bodily size and colour of the skin---Test identification proceedings were silent regarding the description of the unknown accused given by the complainant in the report---Test identification could only commence, once suspects matching the description in the crime report or in the statements of the witnesses under S. 161, Cr.P.C. had been arrested---Matching the description in the FIR was the starting point towards identification of the unknown accused, therefore, it was uncertain as to how the accused persons in the present case were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant---Selection of the suspects, without any correlation with description of the accused in the FIR, raised doubts and made the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

State/Government of Sindh v. Sobharo 1993 SCMR 585; Muhammad Afzal alias Abdullah v. State 2009 SCMR 436; Sabir Ali alias Foji v. State 2011 SCMR 563 and Muhammad Abdul Hafeez v. State of A.P AIR 1983 SC 367 ref.

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

----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Joint identification parade---Suspects jointly seated in the line-up---Idea of identification parade or lineup was to stand or seat the suspect in a group of persons (dummies or fillers) that closely resembled the characteristics of the suspect, in order to test the recognition, memory, perception and observation of the witness and thus verify the testimony of the witness---Placing two or more suspects jointly in an identification parade (or joint parade), tarnished the homogeneity, sameness and identicalness of the members of the parade and defeated the very purpose of having a test identification parade---Joint parade passed for suggestive and indicative identification, compromising the reliability of the witness and opening doors to misidentification, rendering test identification unsafe and untrustworthy---Both the accused persons in the present case were jointly seated in the lineup during test identification parade---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

In the matter of Kanwar Anwaar Ali PLD 2019 SC 488 ref.

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

----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Test identification parade---Absence of role assigned to suspects by the witness or complainant in an identification parade---In the present case, no role was assigned to the suspects by the witnesses, especially when the First Information Report (FIR) clearly described two different roles to the accused persons; one that of an assailant, while the other of a driver of a motorcycle who drove the assailant away---Where a witness failed to give the description of the part played by the suspect in the crime, the credibility of the witness stood questioned as he failed to complete the picture of the crime scene, thus inviting caution and circumspection in assessing the evidentiary value of the identification evidence---Little reliance was placed on such identification evidence by the (Supreme) Court---Even in the subsequent identification by the complainant in court, which had little evidentiary value, the complainant failed to point an accusing finger at the accused persons to say who did what, therefore the parts played by the accused persons in the crime remained a mystery---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

In the matter of Kanwar Anwaar Ali PLD 2019 SC 488 ref.

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

----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence--- Benefit of doubt--- Test identification parade---"Impermissible suggestiveness" by the police---Duty of police to guard identity of suspect till test identification proceedings---According to the complainant the accused persons were his employees at a godown, where the murder took place, and the Investigation Officer admitted in his cross-examination that he took the accused persons to the godown after they were arrested and the employees at the godown confirmed that both of them worked as employees at the godown of the complainant---Police was to guard the identity of the suspects from the witness till test identification parade took place---Visiting the godown of the complainant with the suspects unravelled the identity of the suspects, tarnishing the secrecy required, which was referred to as "impermissible suggestiveness" at the hands of the police---Probability of the witnesses knowing the identity of the accused persons prior to the identification parade could not be ruled out in such circumstances---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

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

----Art. 22---Test identification parade---Capacity and ability of the eye-witness to identify the accused---"Estimator variables" negatively affecting the memory of a witness---Capacity and ability of the eye-witness should be assessed independently as a sequel or step two to the test identification proceedings---Such assessment also formed part of the identification evidence along with the test identification proceedings---After the test identification parade, the court must verify the credibility of the eye-witness by assessing the evidence on the basis of the factors or "estimator variables"---"Estimator variables" were factors related to the witness, like distance, lighting, or stress, over which the legal system had no control---Identification of an accused, therefore, became a two-step process; first, the suspects underwent a test identification parade and second, the credibility of the eye-witness was assessed by weighing the evidence in the light of the "estimator variables"---Non-exhaustive list of "estimator variables" provided.

Following is the non-exhaustive list of "estimator variables" that negatively affected the memory process of a witness:

i. Stress: Even under the best viewing conditions, high levels of stress could diminish an eye-witness' ability to recall and make an accurate identification. While moderate levels of stress improved cognitive processing and might improve accuracy, an eyewitness under high stress was less likely to make a reliable identification of the perpetrator.

ii. Weapon focus: When a visible weapon was used during a crime, it could distract a witness and draw his or her attention away from the culprit. Weapon focus could thus impair a witness' ability to make a reliable identification and describe what the culprit looked like if the crime was of short duration.

iii. Duration: The amount of time an eyewitness had to observe an event may affect the reliability of an identification. There was no minimum time required to make an accurate identification, however, a brief or fleeting contact was less likely to produce an accurate identification than a more prolonged exposure.

iv. Distance and lighting: A person was easier to recognize when close by, and that clarity decreased with distance. Poor lighting made it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions could diminish the reliability of an identification.

v. Witness characteristics: Characteristics like a witness' age and level of intoxication could affect the reliability of an identification. Children between the ages of nine and thirteen who viewed target-absent lineups were more likely to make incorrect identifications than adults.

vi. Characteristics of perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affected the accuracy of an identification.

vii. Memory decay: Memories faded with time and memory decay was irreversible; memories never improved. As a result, delays between the commission of a crime and the time an identification was made could affect reliability.

PLD 1981 SC 142; Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004). Charles A. Morgan et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry 265 (2004); Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413, 415-17 (1992). Anne Maass & Gunther Koehnken, Eyewitness Identification: Simulating the "Weapon Effect", 13 Law & Hum. Behav. 397, 401-02 (1989). The Handbook of Eyewitness Psychology: Memory for People, supra, at 339, 353-54; Colin G. Tredoux et al., Eyewitness Identification, in 1 Encyclopedia of Applied Psychology 875, 877 (Charles Spielberger ed., 2004). Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cognitive Psychol. 3, 10 (1987); R.C.L. Lindsay et al., How Variations in Distance Affect Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526 (2008); Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on Identification Accuracy from Showups, 87 J. Applied Psychol. 170, 174 (2002). Joanna D. Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children v. Adults: A Meta-Analysis, 22 Law & Hum. Behav. 549, 563, 565 (1998). Jennifer E. Dysart & R.C.L. Lindsay, Show-up Identifications: Suggestive Technique or Reliable Method? Vol.II, The Handbook of Eyewitness Psychology: Memory for People 137, 147 (2007). James C. Bartlett & Amina Memon, Eye-witness Memory in Young and Older Adults Vol.II The Handbook of Eye-witness Psychology: Memory for People, supra, at 309, 317-19; Brian L. Cutler et al., Improving the Reliability of Eyewitness Identification: Putting Context into Context, 72 J. Applied Psychol. 629, 635 (1987). K.E. Patterson & A.D. Baddeley, When Face Recognition Fails, 3 J. Experimental Psychol.: Hum. Learning & Memory 406, 410, 414 (1977); Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness's Memory Representation, 14 J. Experimental Psychol: Applied 139, 142 (2008) and State v. Henderson, 208 N.J. 208 (2011), State v. Lawson, 291 P.3d 673, 695 (Or. 2012) ref.

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

----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22--- Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Benefit of doubt---Test identification parade---"Estimator variables" negatively affecting the memory process of the identifying witness---Site-plan showed that the accused persons were at a distance of 15 to 30 feet from the complainant in the empty space of the godowns abutting a road with no light---Source of light in the empty area behind the godowns (place of occurrence) had not been secured as evidence during the investigation---Witness was fired at first and then the deceased was shot dead---Duration of the event had not been specified in the crime report---In such background, it could not be said with certainty that the visual recognition of the accused persons by the complainant on the fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat---Based on such "estimator variables," possibility of misidentification could not be ruled out, thereby making it unsafe to place reliance on the identification evidence---Convictions and sentences of accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed accordingly.

Raja Tariq Nadeem, Advocate High Court with permission of the Court for Appellants (in Cr. A. 306-L of 2012).

Malik Abdul Haq, Advocate Supreme Court for Appellants (in Cr. As. 307-L and 308-L of 2012).

Raja Tariq Nadeem, Advocate High Court with permission of the Court for the Complainant (in Cr. As. 307-L and 308-L of 2012).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State (in all cases).

2019 S C M R 974

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Haji MUHAMMAD NAWAZ and others---Petitioners

Versus

AMINULLAH (DECEASED) through L.Rs and others---Respondents

Civil Petitions Nos. 289-P and 290-P of 2015, decided on 19th April, 2019.

(Against the judgment dated 25.03.2015 of the Peshawar High Court, Peshawar passed in Civil Revisions Nos. 900-P and 901-P of 2014 along with C.M. No. 261-P of 2015)

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

----Ss. 12 & 42---Suit for specific performance and declaration---Agreement to sell---Claim of ownership of land based on an agreement to sell---Declaration of title sought instead of specific performance of agreement to sell---Effect---Plaintiff (purported buyer) allegedly executed a sale agreement with the defendant (purported seller) for purchase of subject land and entire sale consideration for it was also paid---After death of plaintiff his legal heirs (i.e. petitioners) filed a declaratory suit seeking a declaration that they were owners of the subject land---Defendant on the other hand claimed that the sale agreement was forged/fake and filed his own suit seeking a declaration that he was the owner of the land and the sale agreement was fake---Suit filed by petitioners (legal heirs of plaintiff) was dismissed, whereas, suit filed by defendant was decreed---Held, that suit filed by the petitioners acknowledged the defendant's ownership of the subject land but relied upon a sale agreement---Sale agreement was not a title document, and specific performance of the sale agreement was not sought---In effect the petitioners wanted two declarations; firstly, that their predecessor was the owner and, secondly, that upon his death they became owners of the suit land---Suit of the petitioners thus failed on the ground that they did not ask for the specific performance of the sale agreement---Petition for leave to appeal was dismissed and leave was refused. [p. 978] A & B

Dr. Faqir Muhammad v. Major Amir Muhammad 1983 Law Notes (S.C.) 30, 33 ref.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Proof---Defendant (purported seller) had specifically denied the execution of the sale agreement and no effort was made to establish his signature thereon---Two persons stated to be the witnesses of the sale agreement were not produced even though it was admitted that one of them was alive---Purported scribe was not the person who had actually written the sale agreement---Defendant claimed that the plaintiff (purported buyer) came in possession of a portion of the subject land as his tenant, and not pursuant to the sale agreement---Legal heirs of plaintiff were not able to establish that their predecessor had come into possession as a consequence of the sale agreement---Significantly, plaintiff did not file a suit in his lifetime and it took his legal heirs nineteen years to file the suit, which on the face of it was hopelessly time-barred---Petition for leave to appeal was dismissed and leave was refused.

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

----Art. 126---Burden of proof as to ownership---Applicability of Art.126 of the Qanun-e-Shahadat, 1984---Ownership of property prior to agreement to sell admitted---Plaintiffs (purported buyers) admitted that the defendant (purported seller) was the owner of the said land before execution of sale agreement, therefore present case was not a case of two contending claims where defendant had no title/ownership to the said land---In such circumstances mere possession by the plaintiffs would not be the determinative factor in terms of Art. 126 of the Qanun-e-Shahadat---Title of the defendant was acknowledged by the plaintiffs and stood proved therefore Art. 126 of the Qanun-e-Shahadat would not assist them---Petition for leave to appeal was dismissed and leave was refused.

Secretary of State v. Chimanlal Jamnadas AIR 1942 Bombay 161 ref.

Abdul Latif Afridi, Advocate Supreme Court and Haji M. Zahir Shah, Advocate-on-Record (absent) for Petitioners.

Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record (absent) for Respondents.

2019 S C M R 980

[Supreme Court of Pakistan]

Present: Faisal Arab and Syed Mansoor Ali Shah, JJ

SECRETARY REVENUE DIVISION/CHAIRMAN, FBR and another---Petitioners

Versus

MUHAMMAD ARSHAD HILALI---Respondent

Civil Petition No. 396 of 2017 and C.M.A. No. 1012 of 2017, decided on 26th April, 2019.

(Against the judgment dated 01.12.2016 of the Federal Service Tribunal, Islamabad in Appeal No. 72(P)CS/2015)

Civil service---

----Seniority---Civil servant transferred to another department after making a request for mutual transfer with another civil servant---Whether seniority of such civil servant was to be reckoned from date of his absorption in the new department or date of his initial appointment in his original department---Respondent was appointed as Preventive Officer (BS-11) in Customs House, whereas civil servant 'S' was working as Inspector (BS-11) in Collectorate of Customs and Central Excise---Both being in the Customs department holding posts in equal grade made a request for mutual transfer, which was accepted and the respondent was permanently absorbed as Inspector Customs, while "S" was absorbed as Preventive Officer---Held, that paragraph 6 of instructions contained in Serial No. 30, Chapter III, Part II of Estacode (1989 edition) clearly provided that where a person was transferred to another office in a situation where it was open to him to accept or refuse such transfer, his seniority was to be reckoned from the date of his transfer to the new office---Only exception to such rule was contained in paragraph 6(i)(b), which stated that where a person was compulsorily transferred to another office then he was allowed to count his service in the previous office towards his seniority in his new office---In the present case, the respondent sought his transfer to his new office on his own volition on the basis of mutual consent with another officer of the same grade; he was not compulsorily transferred at the instance of the department, hence the recognized practice contained in paragraph 6(i)(a) of Serial No. 30, Chapter III, Part II of Estacode (1989 edition) clearly disentitled him to count his previous service towards seniority in the new office---Petition for leave to appeal was converted into appeal and allowed and impugned judgment of the Service Tribunal was set aside.

Imran Fazal, Advocate Supreme Court for Petitioners.

Jehanzeb Raheem, Advocate Supreme Court for Respondent.

2019 S C M R 984

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

Maj. (Retd.) Syed MUHAMMAD TANVEER ABBAS and another---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and another---Respondents

Civil Appeals Nos. 26-K and 27-K of 2018, decided on 13th May, 2019.

(On appeal from the judgment dated 12.3.2018 passed by the High Court of Sindh, at Karachi in C.P. No. D-6555/16 and C.P. D-931/17)

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 45---National Database and Registration Authority Employees (Service) Regulations, 2002---Contract employees of National Database and Registration Authority ("NADRA") opting not to be regularized in service---Termination from service---Constitutional petition filed by employees challenging their termination---Maintainability---Contract employees in question were governed by the National Database and Registration Authority Employees (Service) Regulations, 2002 ('the Regulations') which were non-statutory in nature---Contract employees of NADRA were offered two options; one option was to continue in service as contractual employees on 'Existing Pay Scale' but on terms and conditions revised to a certain extent; whereas the other option was to be "regularized" in service on 'Basic Pay Scale'---Both the employees in question took the first option, as such they remained contractual employees---In such circumstances the High Court had rightly found that the constitutional petitions filed by the employees challenging their termination were not maintainable---Appeals were dismissed accordingly.

Pakistan Defence Officers Housing Authority v. Itrat Sajjad Khan and others 2017 SCMR 2010 and Chairman NADRA and another v. Muhammad Ali Shah and others 2017 SCMR 1979 distinguished.

Malik Naeem Iqbal, Advocate Supreme Court for Appellants.

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

Tariq Khokhar, Additional A.-G. for Federation.

2019 S C M R 993

[Supreme Court of Pakistan]

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

Dr. YASMEEN JAFFAR---Petitioner

Versus

Dr. SHEHLA SAMI and others---Respondents

Civil Petition No. 1787 of 2016, decided on 2nd April, 2019.

(Against the judgment dated 26.04.2016 passed by the Balochistan Service Tribunal, Quetta in S.A. No. 269 of 2015)

Civil service---

----Inter-se seniority---Maxim: Audi alteram partem---Scope---Pro-forma promotion granted without hearing parties affected by the same---Respondent was appointed as Assistant Professor (BS-18) w.e.f. 08-08-2008 on the recommendations of Public Service Commission against the quota reserved for initial recruitment---Petitioner on the other hand was appointed as Assistant Professor (BS-18) when she became eligible, against the vacant post on 17-12-2009 on the recommendation of the Provincial Selection Board by way of promotion---Final seniority list of the relevant department was issued on 10-09-2012 wherein respondent appeared at serial No.4 while petitioner was at serial No.6---Such seniority list was not questioned by any one---Dispute appeared to have arisen from a Service Appeal filed by the petitioner to establish her seniority vis-à-vis another Assistant Professor, however the Service Tribunal did not settle that controversy and remanded the case to the department with a direction to decide the case on merit---Significantly neither the respondent nor three other Professors who would have been directly affected by any change in the seniority list were arrayed as respondents in appeal before Service Tribunal nor were they called, impleaded or heard by the department---Said persons were condemned unheard and the maxim: audi alteram partem was violated at both levels---Department processed the case of the petitioner in isolation without hearing other parties interested in the matter and ultimately notification was issued whereby the petitioner was unilaterally granted proforma promotion with retrospective effect from i.e. 22-01-2008 which was apparently the date on which the Post of Assistant Professor against the promotion quota became available---Department also clearly overlooked the fact that on the said date the petitioner was not eligible for promotion against the said seat on account of shortfall in her relevant experience---Service Tribunal had rightly set aside the notification which granted pro forma promotion to the petitioner---Petition for leave to appeal was dismissed and leave was refused.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Respondent No. 1 in person.

Ayaz Swati, Additional A.-G. for Respondents Nos. 2-3 (on Court's call).

2019 S C M R 998

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Umar Ata Bandial and Faisal Arab, JJ

GOVERNMENT OF PUNJAB through Secretary Communication and Works Department Lahore and another---Appellants

Versus

MUNIR AHMAD TARIQ and others---Respondents

Civil Appeals Nos. 110-L and 111-L of 2013, decided on 9th March, 2016.

(On appeal against the orders dated 7.6.2012 passed by the Lahore High Court, Multan Bench in I.C.As. Nos. 11 and 142 of 2011)

(a) Civil service---

----Where a Tribunal or Court decided a point of law relating to terms and conditions of service of civil servants which governed not only those who litigated but also those who had not resorted to any legal proceedings, then irrespective of this they (non-litigating civil servants) too became entitled to the same benefit.

Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan 1996 SCMR 1185 ref.

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

----S. 11---Constructive res-judicata---Where an omnibus order was passed and a party to a case accepted a decision passed against it, then it could not subsequently take advantage of the fact that such decision upon challenge by some other party before a higher forum stood reversed and ask for the same relief to be granted to him also---Such bar was based on the principle of constructive res judicata.

Pir Bukhsh v. Chairman Allotment Committee PLD 1987 SC 145 ref.

Mudassar Khalid Abbasi, AAG for Appellants (in both cases).

Hafiz Tariq Naseem, Advocate Supreme Court and Tariq Nadeem, Advocate Supreme Court for Respondent No.1 (in both cases).

2019 S C M R 1004

[Supreme Court of Pakistan]

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

MUHAMMAD ASHRAF and others---Petitioners

Versus

U.B.L. and others---Respondents

Civil Petitions Nos. 2701-L, 2994-L and 3032-L of 2016, decided on 9th April, 2019.

(On appeal from judgment dated 6.6.2016, passed by the Lahore High Court, Lahore, in E.F.As. Nos. 880 and 896 of 2015)

(a) Limitation---

----Where an order or judgment was challenged through separate proceedings be it appeals or petitions, some of which were within time, while the others had been filed beyond the period of limitation, all such appeals or petitions ought to be decided on merit especially when an order in one appeal or petition (within time) would apply to the other appeal or petition, which may be barred by limitation.

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

----O. XXI, Rr. 89 & 90---Auction of judgment debtor's properties, confirmation of---Executing Court, duty of---Scope---Even in the absence of an objection petition, the Executing Court was not required to automatically confirm an auction mechanically and without application of mind by not even considering the law applicable.

National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283 ref.

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

----O. XXI, R. 90---Auction of judgment debtor's properties---Legal flaws---Admittedly ten (10) separate properties were directed to be auctioned at the different sites at the same time, which was an physical impossibility, even if the properties were located within a one mile radius---Auction proceedings, thus, were not held at the sites in violation of the terms of the proclamation---Similarly, there were no bid sheets available on the record, the same having not been prepared by the Court auctioneer---Record did not clearly establish that 25% of the auction price of each of the properties were deposited on the fall of the hammer, therefore, it could not be safely held that the properties were auctioned in accordance with the law, nor could it be held that such auction, with obvious legal flaws, could have been confirmed by the Court even if the objection petition was not maintainable---Supreme Court set-aside the auctions along with ancillary actions and directed that the sale price received by the Bank shall be refunded to the auction purchaser along with mark up at the rate of 5% per annum; and that the possession of the properties shall be taken over by the Banking Court from the auction purchaser and the properties shall be put to auction again in accordance with law.

Shahid Ikram Siddiqui, Advocate Supreme Court for Petitioners (in C.P. 2701-L of 2016).

Fakhar-uz-Zaman Akhtar Tarar, Advocate Supreme Court and Shahid Ikram Siddiqui, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2994-L and 3032-L of 2016).

Habib Ahmed Bhatti, Advocate Supreme Court for Respondent No. 1 (in all C.Ps.).

Fakhar-uz-Zaman Akhtar Tarar, Advocate Supreme Court for Respondent No.2 (in C.P. No. 2701-L of 2016).

Muhammad Ramzan Ch., Senior Advocate Supreme Court for Respondents Nos. 2 to 7 (in C.Ps. Nos. 2994-L and 3032-L of 2016).

2019 S C M R 1008

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SOMAID and another---Appellants

Versus

ALI GOHAR alias GOHAR ZAMAN and others---Respondents

Criminal Appeals Nos. 3-P and 4-P of 2014, decided on 30th April, 2019.

(On appeal from the judgment dated 02.10.2012 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.698 of 2011)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Case based on dying declaration of deceased before police---Scribe of dying declaration not presented as witness---Fate of prosecution case hinged upon the dying declaration of the deceased, purportedly made by him at the police station, which was converted into the First Information Report (FIR)---According to the statement of one of the prosecution witnesses, he received the deceased in an injured condition and recorded his statement, however in the next breath, he stated that the FIR was recorded by a police witness on his dictation---Said police witness in his examination denied to have recorded the FIR, thus question as to who recorded deceased's last words, was shrouded in mystery---Person who recorded dying declaration was the most important witness to verify veracity thereof, but in the present case, such person was conspicuously missing in the array of witnesses and thus dying declaration, could not be relied upon and it would be grievously unsafe to maintain the conviction of accused---Benefit of the doubt was extended to the accused and he was acquitted of the charge of murder---Appeal was allowed accordingly.

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

----Art. 46--- Dying declaration, reliance upon--- Scope---Person recording dying declaration as the most important witness---Dying declaration, in legislative wisdom, was an exception to the general rule of direct evidence; it was admitted to the detriment of an accused without opportunity of cross examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth---Notwithstanding such sanctimonious hypothesis, before a conviction was based upon such a declaration, prosecution must demonstrate beyond shadow of doubt that it comprised of the words of declarant alone without extraneous prompting or additions---Person who recorded dying declaration was therefore the most important witness to verify veracity thereof.

Astaghfirullah, Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Appellants (in Crl. A. 3-P/2014).

Ghulam Mohyuddin Malik, Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate-on-Record for Appellants (in Crl. A. 4-P/2014).

Barrister Qasim Wadud, Additional Advocate General, Khyber Pakhtunkhwa along with Respondent No.1 in person for the State (in Crl. A. 3-P/2014).

2019 S C M R 1011

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE C-4, KARACHI---Appellant

Versus

NATIONAL BANK OF PAKISTAN, KARACHI---Respondent

Civil Appeals Nos. 441-442 of 2010, decided on 15th May, 2019.

(On appeal from the order dated 9.3.2010 passed by the High Court of Sindh, Karachi in I.T.As. Nos. 533 and 534 of 2000)

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

----Ss. 17 & 32(1)---Interest earned by financial institutions on Government securities---Whether the same was liable to be taxed on accrual or on receipt basis---'Hybrid system' of accounting---Scope---Bank/assessee in the present case maintained its accounts on the accrual system but accounted for interest on Government securities on receipt basis, also known as the "hybrid" system---As a matter of law, an assessee was not limited to using either the accrual or the receipt basis of accounting---In law it was permissible to use the "hybrid" system of accounting by mixing and merging elements from the two systems, which was a question of law, and must be regarded as having been answered and settled accordingly---Secondly, if such question arose, then it had to be shown as a matter of fact in respect of the income year corresponding to the given assessment year that the assessee had, in fact, regularly employed the "hybrid" system of accounting (requirement under S. 32 of the Income Tax Ordinance, 1979), which was a question of fact, and therefore had to be dealt with and answered accordingly---Department was wrong in refusing to accept interest income offered on receipt basis in respect of the assessment years at hand, and the Appellate Tribunal erred materially in dismissing the bank's appeals in such regard---High Court reached the correct conclusion in law by finding that the interest earned by the Bank on Government securities was liable to be taxed on receipt basis---Appeals were dismissed accordingly.

Pakistan Industrial Credit and Investment Corporation Ltd. v. Commissioner of Income Tax and others 2006 PTD 1400; State Bank of Travancore v. Commissioner of Income tax (1986) 158 ITR 102; UCO Bank v. Commissioner of Income 1999 PTD 3752 and Commissioner of Income Tax v. Askari Commercial Bank Ltd. 2018 PTD 1089 ref.

Muslim Commercial Bank Ltd. v. Deputy Commissioner of Income Tax and others 2004 PTD 1901 approved.

Habib Bank Ltd. v. Commissioner of Income Tax 2009 PTD 443 distinguished.

Dr. Farhat Zafar, Advocate Supreme Court and Abdul Hameed Anjum, Secretary (Law) FBR for Appellant.

Salman Pasha, Advocate Supreme Court for Respondent.

2019 S C M R 1021

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Maqbool Baqar, JJ

MUHAMMAD AAMIR KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWAthrough Senior Member Board of Revenue, KP and others---Respondents

Civil Petition No. 29 of 2017, decided on 25th April, 2019.

(On appeal against the judgment dated 17.11.2016 passed by the Peshawar High Court, Peshawar, in Writ Petition No. 1032-P of 2016)

(a) Practice and procedure---

----Precedent---Constitution of larger Bench---Where there already existed in the field an order/ judgment of the Division Bench (of the High Court) on the subject which was being dealt with and considered (by the High Court) in subsequent cases, said earlier order/judgment had to be adhered to and a different opinion from the one taken in the earlier order/judgment could not be expressed---In such circumstances the matter was to be referred to the Chief Justice for constitution of a larger Bench.

(b) Administration of justice---

----Judges were expected in all circumstances to know the law and such was their hallmark as entrenched in the principle that 'a Judge must wear all laws on sleeve of his robes'.

(c) Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----S. 26---Khyber Pakhtunkhwa Revenue and Estate Department (Tehsildar, Naib-Tehsildar/Subordinate Revenue Service) Rules, 2008---Patwari, post of---Upper age limit, relaxation in---By way of a notification an amendment was made in the Khyber Pakhtunkhwa Revenue and Estate Department (Tehsildar, Naib-Tehsildar/ Subordinate Revenue Service) Rules, 2008 ('the Rules') and upper age limit for the post of Patwari was extended to 35 years and it was clearly stated that no provision for age relaxation over 35 years would be allowed under any circumstances by any Authority---Held, that age of petitioner at the time of his turn for being appointed as Patwari was beyond maximum upper age limit of 35 years---Court had no power to further relax the upper age limit for that the jurisdiction of the Court was to apply the law and rules as they appeared on the statute book---Vires of law itself had not been challenged by the petitioner, thus, no deviation from the amending notification could be made on any principle of law---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Iqbal Khan Mohmand, Advocate Supreme Court for Petitioner.

Zahid Yousaf Qureshi, Additional A.-G., Khyber Pakhtunkhwa for Respondents Nos. 1 - 5.

Nemo for Respondents Nos. 6 - 7.

2019 S C M R 1027

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

FAZAL SUBHAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 8-P and 9-P of 2017, decided on 2nd May, 2019.

(On appeal from the judgment dated 30.04.2015 passed by the Peshawar High Court, Peshawar and Abbottabad Bench in Criminal Appeals Nos.440-P and 458-P of 2013 respectively).

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism, haraabah---Reappraisal of evidence---Prosecution case was fraught with doubts---Various pieces of evidence collected by the investigating officer did not satisfactorily connect the accused persons with the commission of the crime---Question as to how the abductee made his escape good despite being held by no less than four persons so as to appear without any hindrance before the police was quite intriguing---Demand of ransom from abductee's brother was only a verbal assertion with no forensic proof regarding conversation on the cell phone---Vehicle was not recovered from any of the accused and the person who produced was not presented before the court---Prosecution case was far from being confidence inspiring and thus it was unsafe to maintain the conviction of the accused persons---Appeals were allowed and accused persons were acquitted of the charged against them.

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

----Art. 40---Information received from accused---Disclosure---Scope---Memo of pointing out of place of occurrence could not be equated with disclosure within the contemplation of Art. 40 of the Qanun-e-Shahadat, 1984.

Malik Haroon Iqbal, Advocate Supreme Court for Appellants (in both cases).

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for Respondents (in both cases).

2019 S C M R 1029

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Syed Mansoor Ali Shah and Munib Akhtar, JJ

LAHORE HIGH COURT BAR ASSOCIATION and others---Petitioners

Versus

GENERAL (RETD.) PERVEZ MUSHARRAF and others---Respondents

Civil Review Petition No. 513 of 2014 in Constitutional Petition No. 14 of 2013, decided on 1st April, 2019.

Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----S. 9---Constitution of Pakistan, Art. 10A---Criminal Procedure Code (V of 1898), S. 342---Trial for high treason---Constitution of Special Court---Accused delaying conclusion of trial by remaining a fugitive and absenting himself from court---Complaint against the accused was filed on 12-12-2013 before the Special Court, the charge was framed on 31-3-2014 and the prosecution evidence was closed on 18-9-2014 and since then the matter was dragging on due to absence of the accused---Significance, gravity and solemnity of the proceedings before the Special Court could not be undermined by delaying the trial due to non-appearance of the accused---Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 ('the Act') envisaged that once the trial had begun, the trial shall not be adjourned by reason of absence of any accused person due to illness, or if the absence of the accused or his counsel had been brought about by the accused person himself, or if the behavior of the accused person prior to such absence had been, in the opinion of the Special Court, such as to impede the course of justice---Section 9, Criminal Law Amendment (Special Court) Act, 1976, mandated that the Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend any such accused person---Section 9 was, therefore, an extension of the procedure for trial provided under S. 6 of the said Act and supported the purpose of the special law---Within the scope of the Act, if the accused voluntarily choose not to exercise his right to appear and to be present at trial, it did not infringe the fairness of the trial nor did it violate the right to fair trial under Art. 10A of the Constitution---To stop further proceedings of the trial, in such a situation, would amount to putting a premium on the fault of the absconder---Besides the control over the proceedings of the trial could not be allowed to vest in the accused---Accused, in the present case, was not merely absenting himself from attending the Special Court, he had also been declared a proclaimed offender---Being a fugitive from the law, the accused had lost the right to have an advocate appointed to defend him unless and until the accused surrendered before the court---In the context of the Act, if the accused voluntarily choose not to appear or join the proceedings, he lost his right to an explanation in terms of S. 342, Cr.P.C.---Supreme Court directed that the Special Court shall proceed with the trial on the next date of hearing; that in case the accused surrendered and appeared before the Court he would be entitled to record his statement under S. 342, Cr.P.C. and lead any other defence under the law, however, in case the accused failed to appear on the next date of hearing, being a proclaimed offender, the Special Court was empowered to proceed against the accused even in his absence under S. 9 of the Act---Case adjourned.

Abdul Hameed Dogar v. Federal Government through Secretary, Ministry of Interior and 2 others PLD 2016 SC 454; Ikramullah v. State 2015 SCMR 1002; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Hayat Bakhsh v. The State PLD 1981 SC 265 ref.

Hamid Khan, Senior Advocate Supreme Court, Taufiq Asif, Advocate Supreme Court and Sh. Ahsan-ud-Din, Advocate Supreme Court for Petitioners.

Sajid Ilyas Bhatti, Additional Attorney-General for Pakistan for the State.

Nasir-ud-Din, Special Prosecutor and Rao Abdul Jabbar Khan, Registrar, Special Court on Court's Call.

Salman Safdar, Advocate Supreme Court for Respondents.

2019 S C M R 1034

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Yahya Afridi, JJ

Syed IMTIAZ ALI---Appellant

Versus

CHAIRMAN, IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEES (ITNE), ISLAMABAD and others---Respondents

Civil Appeal No.651 of 2012, decided on 9th April, 2019.

(On appeal against order dated 29-5-2012 passed by the Islamabad High Court, Islamabad in I.C.A. No.257-W of 2012).

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 11, 12-A & 13---Industrial Relations Ordinance (XXIII of 1969), S. 51(2)---Industrial Relations Act (X of 2012), S. 52(2)---Claim of a newspaper employee---Wage Board award---Implementation Tribunal, jurisdiction of---Scope and purpose---Essential aim of constituting the Implementation Tribunal was to provide a forum for redressal of the grievances of newspaper employees regarding the payment of the wages fixed by the Wage Board---In doing so effectively, the legislature had, in its wisdom, vested the Implementation Tribunal with the authority to enforce its directions upon the newspaper establishments---Adjudicatory power of a Labour Court provided under S. 51(2) of the Industrial Relations Ordinance, 1969 and presently under S. 52(2) of the Industrial Relations Act, 2012, was not expanded to the Implementation Tribunal under the deeming provisions of S. 13 of the Newspaper Employees (Conditions of Service) Act, 1973 ('the Act')---Intention of the legislature was thus clear that apart from the trial of the offences stipulated under S. 13 of the Act, and the implementation of the Wage Board Award under S. 11, no other pecuniary claim of a newspaper employee came within the jurisdictional sphere of the Implementation Tribunal constituted under S. 12-A of the Act.

Matri Publication's case 2001 PLC 662 and All Pakistan Newspapers Society's case PLD 2012 SC 1 ref.

(b) Partnership Act (IX of 1932)---

----S. 4---Nature of partnership, determination of---Dominant test---Control and dependency test---Scope---Terms of the agreement stipulated that the parties agreed to set-up a weekly journal; that the terms of the Agreement were for a period of five years; that the profits of the weekly journal, after deduction of the actual expenses of running the venture, would be distributed amongst the parties, and the appellant was to receive 80% of the profits, while the respondent was to receive 20% of the same; that the appellant would invest in setting up the venture, and retain its ownership, while the respondent shall assume responsibilities as its Editor and be paid a sum of Rs. 40,000 per month; that the appellant, in case of terminating the agreement, shall give the respondent a three months' notice (whereby monthly remuneration shall not be discontinued) and shall pay an additional sum of Rs. 800,000 at departure; that the parties in order to resolve any dispute arising out of the agreement shall take recourse to the arbitration clause---Question as to whether said agreement was a partnership or a master-servant relationship---Held, that the venture intended to be carried out by the parties was a 'partnership', as it fulfilled the three precedent conditions for a partnership set out in S. 4 of the Partnership Act, 1932; 'firstly', the parties agreed to set up a business of publication of a weekly journal; 'secondly', the parties were to share the profits of that business; and 'finally', the said business of publication was to be carried out by both the parties, as their individual responsibilities were clearly defined in the agreement---Relationship between the parties under the agreement provided therein elements of both Master and Servant and of a partnership firm; it had attributes of Master and Servant as the respondent was appointed as the Editor of the journal with a monthly stipend of Rs.40,000, and features of a partnership firm, as the parties were to share the profits that were to accrue from the business of the venture in the ratio of 80:20---Applying the "dominant test" to the terms of the agreement, (an exclusive) relationship of Master and Servant could not be conceived when the profits accruing from the business venture undertaken by the Master were to be shared with the servant, however, it was possible for a partner in a partnership firm to be paid in addition to his pre-determined share of profits for the services he rendered in furtherance of the business venture of the partnership firm, as was in the present case---In pith and substance, the attributes of a partnership dominated those of Master and Servant governing the relationship of the parties under the agreement---Even if the relationship of the parties under the agreement was examined on the touchstone of the "test of control and dependency" [as undertaken in other Commonwealth jurisdictions], the respondent, under the agreement, had complete control as the editor of the journal, and that too, with no interference from the appellant in his working---Judged from every angle, intention gathered from the terms of the agreement revealed that the parties were to be partners in a partnership firm and their relationship was not to be governed by the principles of Master and Servant---Appeal was allowed in circumstances.

Backman v. Canada [2001] 1 SCR 367; McCormick v. Fasken Martineau DuMoullin LLP [2014] 2 SCR 108; Clackamas Gastroenterology Associates, P.C. v. Wells, 538 US 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 US 318 (1992) ref.

M. Habib Ullah Khan, Advocate Supreme Court and Nazir Ahmed Bhutta, Advocate Supreme Court for Appellants.

Ex-parte for Respondent No.1

Qausain Faisal Mufti, Advocate Supreme Court for Respondent No.2.

2019 S C M R 1045

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHAFI alias KUDDOO---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 48-L of 2016, decided on 7th May, 2019.

(Against the judgment dated 15.02.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 2101 of 2002).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Trial had rightly acquitted the accused of the charge on the basis that there was inordinate delay in reporting the crime; that purported witnesses' presence at the scene of occurrence was improbable; that the witnesses had enmity with the accused, and that there were contradictions in the depositions of witnesses---Moreover ocular account was in conflict with medical evidence qua number of injuries to the deceased---High Court converted accused's acquittal into conviction after it had itself disbelieved prosecution evidence qua two out of three accused, one with an identical role---Appeal was allowed and accused was acquitted of the charge.

(b) Appeal against acquittal---

----Presumption of innocence---Scope---Acquittal carried with it double presumption of innocence; it was reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Acquittal could not be set aside merely on the possibility of a contra view.

Shahid Azeem, Advocate Supreme Court for Appellant.

Respondent No. 2 in person.

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

2019 S C M R 1048

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

The STATE and others---Respondents

Jail Petition No. 217 of 2017, decided on 27th March, 2019.

(Against the judgment of the Lahore High Court, Multan Bench, Multan dated 27.02.2017 passed in Crl. Appeal No. 455 of 2013)

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

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Reappraisal of evidence---Unexplained delay in reporting the matter to the police---Occurrence in the present case, as per prosecution, took place on 06-03-2010, whereas the matter was reported to police by the complainant on 13-03-2010---If the contents of the FIR were accepted as correct, it was hard to believe that in an incident where a young married woman was abducted from a house by three men and two women on gunpoint, the complainant side waited for about seven days to report the matter to police---No explanation was provided in the FIR for such inordinate delay---Complainant in his examination-in-chief, made an evasive explanation that after the occurrence, he along with respectables of the locality contacted the elders of the accused for recovery of his daughter and when they refused, he reported the matter to police---Complainant did not give the name of any respectable of the area in his statement during trial---Other two witnesses, including the abductee herself, also did not explain delay in reporting the matter to police---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Jail petition was converted into appeal and allowed and the accused was acquitted of the charge.

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

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Reappraisal of evidence---Use of weapon during occurrence---Purported eye-witness of the incident claimed that the accused was armed with a revolver and also made fire towards them---No such fact was disclosed by the alleged abductee before the Trial Court---No recovery of revolver was made from the accused nor was any empty secured by the police from the spot during investigation---Jail petition was converted into appeal and allowed and the accused was acquitted of the charge.

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

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Reappraisal of evidence---Medical evidence---No DNA test of accused or abductee conducted---Alleged abductee claimed that she was intoxicated by the accused and co-accused and was confined for seventeen days, during which she was also subjected to rape---In her medical examination, no trace of intoxication was found---Medical examination of alleged abductee was conducted after about four months of the alleged occurrence---Though the doctor stated that the vaginal swabs were stained with semen but the fact remained that according to complainant, after her recovery, the alleged abductee was divorced by her husband two months after the occurrence, and afterwards she solemnized marriage with some other person---In such circumstances, there was little significance of the report of chemical examiner that the vaginal swabs were stained with semen particularly when, admittedly, no DNA test of the abductee and the accused was conducted---Investigating officer stated in his cross-examination that despite repeated summons, the alleged abductee did not come for DNA test---Doctor who medically examined the alleged abductee did not find any mark of violence on her body---Jail petition was converted into appeal and allowed and the accused was acquitted of the charge.

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

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Reappraisal of evidence---Doubtful prosecution story---Complainant alleged that the accused and co-accused forcibly took away his daughter and subjected her to rape---Defence has brought on record copy of harassment petition filed by the alleged abductee against her father/complainant and another prosecution witness, which was filed four days after registration of FIR, wherein she alleged that she was forced to contract Nikah with a man by her father; that she had filed a suit for dissolution of that Nikah before the Family Court; that in order to harass her, the complainant (her father) had got registered the present FIR; that the complainant side was forcing her to make a false statement etc.---Another complaint filed by the alleged abductee was brought on record wherein she alleged that her father (complainant), and other witnesses attacked her house in order to abduct her or to kill her but on her hue and cry, people around the area reached at the spot and saved her---In such circumstances, the prosecution had failed to prove its case against the accused beyond reasonable doubt---Jail petition was converted into appeal and allowed and the accused was acquitted of the charge.

Ch. Abdul Ghaffar Bhuttoa, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, DPG for the State.

2019 S C M R 1053

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Yahya Afridi, JJ

Messrs INDEPENDENT MEDIA CORPORATION(PVT.) LIMITED---Petitioner

Versus

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

Civil Petitions Nos. 1069-K to 1071-K of 2018, decided on 22nd May, 2019.

(Against the judgment dated 30.05.2018 of the High Court of Sindh at Karachi passed in C.P. No.D-2798/09, C.P. No. D-614/10, C.P. No.D-783/10 and Spl. STRA Nos. 195 and 196/09)

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

----Ss. 2(92), 45, 66 & 83---Sindh Sales Tax Ordinance (VIII of 2000) [since repealed], Ss. 3 & Sched. Item II---Sindh Revenue Board Act (XI of 2010), S. 3---Sales tax---Accrued penalties and default surcharge, payment of---Amnesty scheme issued by Provincial Government [Notification No. SRB-3-416/2014 dated 17-04-2014 ('the Amnesty notification')] with respect to payment of accrued penalties and default surcharge---Vires of---Whether Sindh Revenue Board could grant an amnesty for penalties and default surcharge accumulated under the repealed Sindh Sales Tax Ordinance, 2000---Held, that the Amnesty notification provided that the Sindh Revenue Board would exempt the whole of the amount of penalty and 95 per cent of the amount of default surcharge, payable on the principal amount of arrears of the [sales] tax as were outstanding on the date of present notification, if the said principal amount of tax and the 5 per cent of the amount of default surcharge were paid in the prescribed manner---With the promulgation of the Sindh Sales Tax on Services Act, 2011, the Sindh Revenue Board Act, 2010 and the establishment of the Sindh Revenue Board the province's dependency on the Federation and on the Federal Board of Revenue (FBR) to administer and collect on its behalf sales tax on services, including penalty and default surcharge thereon, came to an end---Sindh Sales Tax on Services Act, 2011, had repealed the Sindh Sales Tax Ordinance, 2000 but S. 83 of the Act of 2011 had saved certain matters accrued thereunder which henceforth had to be administered by the Sindh Revenue Board, including the power to issue notifications exempting the collection of sales tax on service, accrued penalties and default charges---Provincial Government had not withdrawn, supplanted or varied the Amnesty notification---Nor was the said notification assailed before a competent court of law---Amnesty notification encouraged those who had not paid the penalty and default surcharge to get exemption from payment, provided they came forward and paid five per cent of the default surcharge amount---Once the requisite amount was paid pursuant to the said notification, the Provincial Government, which had itself approved the issuance of the said notification, could not seek to restrict the scope of the said notification and contend that under the Sindh Sales Tax on Services Act, 2011 the said exemptions could not be given---Joint reading of Ss. 2(92), 45, 66 & 83 of the Sindh Sales Tax on Services Act, 2011 left no doubt that the Sindh Revenue Board, with the prior approval of the Provincial Government, could issue the Amnesty notification---Petitions for leave to appeal were converted into appeals and allowed accordingly.

(b) Sales tax---

----Exemption---Taxing instruments and exemptions issued thereunder must contain clarity and certainty.

Khalid Javed Khan, Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record (absent) for Petitioner (in all cases).

Barrister Shabbir Shah, Additional Advocate General, Sindh along with Malik Naeem Iqbal, Advocate Supreme Court for Respondent No.1.

Muhammad Waqar Rana, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondent No.2 (FBR).

Nemo for Respondent No.3.

2019 S C M R 1068

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malikand Yahya Afridi, JJ

MUHAMMAD RAFIQUE alias FEEQA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 582 of 2018, decided on 3rd April, 2019.

(On appeal against the judgment dated 12.05.2015 passed by the Lahore High court, Lahore in Criminal Appeal No. 1597 of 2006 and Criminal Revision No. 289 of 2017)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Presence of eye-witnesses at scene of occurrence doubtful---Accused was alleged to have killed the deceased due to dispute over cutting of a water course---Biggest doubt in the prosecution's case was the very presence of the named eyewitnesses at the time and place of occurrence---Very reason for all the nine named persons to first gather and then to be present at the time of the occurrence at the haveli of the accused was not appealable to a prudent mind, especially when there was no evidence in support of the parties having a joint khall (water course), and the cutting of the same on the day of the occurrence was also not produced in evidence---Appeal was allowed and accused was acquitted of the charge of murder.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Unexplained delay in conducting post-mortem---Post-mortem was carried out after a delay of nearly 22 hours on the next day---Such unexplained delay in the post-mortem of a deceased would surely put a prudent mind on guard to very cautiously assess and scrutinize the prosecution's evidence---In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused and plant eyewitnesses of the crime---Appeal was allowed and accused was acquitted of the charge of murder.

Irshad Ahmad v. The State 2011 SCMR 1190; Ulfat Husain v. The State 2018 SCMR 313; Muhammad Yaseen v. Muhammad Afzal and another 2018 SCMR 1549; Muhammad Rafique v. the State 2014 SCMR 1698; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. the State 2012 SCMR 327 ref.

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

----S. 174---Police Rules, 1934, R. 25.37---Post-mortem examination---Procedure---Once the dead body of a person, who died in unnatural and suspicious circumstances, is taken into custody by a Police Officer, the following essential steps followed: 'firstly', there was a complete chain of police custody of the dead body, right from the moment it was taken into custody until it was handed over to the relatives, or in case they were unknown, then till his burial; 'secondly', post mortem examination of a dead person could not be carried out without the authorization of competent police officer or the magistrate; 'thirdly', post mortem of a deceased person could only be carried out by a notified government Medical Officer; and 'finally', at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer were also to be handed over to the said medical officer to assist his examination of the dead body.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 174---Police Rules, 1934, R. 25.37---Qatl-i-amd---Reappraisal of evidence---Post-mortem examination---Delay in conducting post-mortem, explanation for---At the time of handing over the dead body by the police to the Medical Officer for post-mortem examination, all reports prepared by the investigating officer were also to be handed over to the said medical officer to assist his examination of the dead body---Usually the delay in the preparation of said police reports, which were required to be handed over to the medical officer along with the dead body, resulted in the consequential delay of the post-mortem examination of the dead person---To repel any adverse inference for such a delay, the prosecution had to provide justifiable reasons therefor, which in the present case was strikingly missing---Appeal was allowed and accused was acquitted of the charge of murder.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Post-mortem report showing mouth of deceased as open---Adverse inference---Presence of eye-witnesses at scene of occurrence doubtful---In the Marg report and the post mortem report, the mouth of the deceased had been stated to be open, which clearly indicated that the dead body was not attended to by his close relatives after being pronounced dead---Stance set up by the prosecution in the present case was that the brother and the uncle of the deceased were present at the time of his death, and remained with him, even thereafter, however the posture of the deceased's mouth raised an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence---Appeal was allowed and accused was acquitted of the charge of murder.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Recovery of weapon and empties doubtful---Recovery of the weapon from the accused was legally inconsequential to connect him with the crime, as there was a negative report regarding the matching of the stated recovered crime empty from the spot---Even otherwise, the recovery of the crime empty was highly doubtful---Complainant himself alleged in his initial report, and later testified, that the accused fired one shot from his double barrel .12 bore gun, which was fatal---Under normal conditions, unlike a pistol, when one fire was shot from a .12 bore double barrel gun, the spent cartridge never ejected---In fact, it was only when the chamber of the barrel was opened for reloading, or any other purpose, that the ejection of the spent cartridge took place---No such assertion was made by the prosecution that the accused reloaded or opened the chamber of his .12 bore double barrel gun, thus, the recovery of the crime empty appeared to be planted, casting serious doubt on the mode and manner in which the crime was investigated by the police, which had relatable effect upon the entire prosecution's case put up during the trial---Appeal was allowed and accused was acquitted of the charge of murder.

Ch. Nazir Ahmed Kamboh, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Appellant.

Ch. M. Sarwar Sidhu, Additional P.-G. Punjab for the State.

Mian Muhammad Ismail Thaheem, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2019 S C M R 1079

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ABDULLAH JAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 19-P of 2014, decided on 30th April, 2019.

(On appeal from the judgment dated 14.12.2011 passed by the Peshawar High Court, Peshawar in Ehtesab Criminal Appeal No.15 of 2003).

Criminal Procedure Code (V of 1898)---

----S. 367---Language and contents of judgment---High Court affirming findings rendered by the Trial Court but not discussing evidence adduced by the prosecution as well as the accused---Supreme Court observed that in such circumstances it felt handicapped to objectively verify the points of determination as well as contentions raised by the accused and therefore considered it best to remit the present matter to the High Court so as to benefit the Supreme Court with a detailed discussion within the contemplation of S. 367 of the Code of Criminal Procedure, 1898---Appeal was allowed, the impugned judgment of the High Court was set aside, and the case was remanded with the direction that it shall be deemed to be pending before the High Court for decision afresh.

Syed Zafar Abbas Zaidi, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate-on-Record for Appellant.

Syed Azeem Dad, Additional Deputy Prosecutor-General, National Accountability Bureau for NAB.

2019 S C M R 1081

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

H.M. EXTRACTION GHEE AND OIL INDUSTRIES (PVT.) LTD. and another---Appellants

Versus

FEDERAL BOARD OF REVENUE and another---Respondents

Civil Appeals Nos. 1262 of 2018 and 507 of 2017, decided on 15th May, 2019.

(On appeal from the order dated 10.8.2018 and 25.3.2013 passed by the Islamabad High Court, Islamabad in W.P. No.2372 of 2018 and Lahore High Court, Lahore in W.P. No. 31925 of 2012)

(a) Income tax---

----'Tax credit' and 'exemption'---Conceptual distinction---Three stages in the imposition of a tax were; first, leviable (declaration of liability); second, payable (assessment); and third, recoverable---Exemption inserted itself between the first two stages, i.e., between what was leviable and what was payable---Tax credit inserted itself between the second and the third stages, i.e., between what was payable and what was recoverable---Conceptual difference existed between tax credit and an exemption---If there was an exemption in the field then the second stage may not be reached at all (i.e., the tax may not be payable) if the exemption was whole---Of course, it may be reached partially if that be the nature of the exemption---On the other hand, in the case of a tax credit the second stage must necessarily always be reached, and that too in full; it was only then that the credit manifested itself by interposing between what was payable (i.e., the assessment) and what was recoverable---Such interposition may be complete (if the tax credit was 100%) or partial---In a fiscal statute there must always be the first stage, that could be affected by neither an exemption nor a tax credit---Exemption operated on, and in relation to, the second stage: that stage may not be reached at all, or only partially---Tax credit did not bear on the second stage---Once that stage was reached, and crossed, then the tax credit was manifested, thereby blocking (as the case may be, either in whole or in part) the third stage---Exemption may eliminate the need for an assessment altogether (if it was whole) or reduce it by the relevant amount if it was partial---Tax credit on the other hand had no bearing on the assessment; it came into operation after assessment and when the question of recovery arose.

Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 159(1)(a) [after amendment by the Finance Act, 2012 and before the changes made by the Finance Act, 2016]---Exemption certificate, issuance of---Tax credit---Clause (a) of subsection (1) of S. 159 of the Income Tax Ordinance, 2001 did not apply to a tax credit, therefore, no exemption certificate could be issued under S. 159 in respect of the same.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court for Appellants (in C.A. No. 1262 of 2018).

Riaz Hussain Azam, Advocate Supreme Court for Respondents (in C.A. No. 1262 of 2018).

Sarfraz Ahmed Cheema, Advocate Supreme Court and Dr. Tariq Masood, Member Legal for Appellants (in C.A. No. 507 of 2017).

Shehryar Kasuri, Advocate Supreme Court for Respondents (in C.A. No. 507 of 2017).

2019 S C M R 1095

[Supreme Court of Pakistan]

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

NAVEED AKRAM and others---Petitioners

Versus

MUHAMMAD ANWAR---Respondent

Civil Petition No. 1728-L of 2018, decided on 26th April, 2019.

(Against judgment dated 27.06.2018 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No. 347-D of 2006)

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

----S. 54---Agreement to sell immoveable property---Proof---Onus to prove the agreement to sell was on the vendee---Vendee produced the marginal witnesses who deposed that the bargain was struck between the parties and the terms and conditions of the agreement to sell were read to the vendor who signed the same in their presence---Marginal witnesses further deposed that one of the petitioners who was the son of the vendor also signed the agreement and a certain sum was paid as earnest money against a duly executed receipt---Other witnesses including the stamp vendor was produced who proved that the stamp paper was purchased by the vendor and the agreement to sell as well as the receipt of earnest money were executed in his presence---Notary Public who had attested the document also appeared and deposed that he made entries of the documents in his Register---Testimony of the witnesses produced by the vendee withstood the test of cross-examination and was found to be credible---Vendor who had signed the agreement did not dispute his signatures---Agreement to sell stood established in accordance with law through overwhelming evidence---Petition for leave to appeal was dismissed and leave was refused.

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

----Art. 129---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Proof---Absence of vendor from the witness box---Such absence was fatal to the vendor's case---In terms of Art.129 of the Qanun-e­-Shahadat, 1984 there was a strong presumption against the vendor for withholding the best evidence.

(c) Gift---

----Oral gift---Proof---Neither the date of attestation nor the name or place when the oral gift was made could be established---No witness in whose presence the oral gift was made was examined---Mere fact that gift mutation was entered was insufficient to establish a valid gift---Gift and the resultant mutation needed to be independently proved---Mutations were undertaken under questionable circumstances which also involved tampering and antedating for which no plausible or legally sustainable explanation was forthcoming---In the present case, there was complete failure on the part of the petitioners to prove the oral gift through production of credible witnesses---Petition for leave to appeal was dismissed and leave was refused.

Sh. Usman Karim-ud-Din, Advocate Supreme Court for Petitioners.

Moulvi Anwar-ul-Haq, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

2019 S C M R 1099

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

DIRECTOR GENERAL EXCISE AND TAXATION LAHORE and others---Petitioners

Versus

MARKET COMMITTEE, MULTAN and another---Respondents

Civil Petitions Nos. 1926-L and 1927-L of 2015, decided on 15th May, 2019.

(On appeal from the judgment of Lahore High Court, Multan Bench dated 02.6.2015, passed in W.Ps. Nos. 4627/2002 and 8421/2002)

Punjab Urban Immovable Property Tax Act (V of 1958)---

----S. 4(b) [as it stood before amendment by the Punjab Finance Ordinance, XXXVII of 2002]---Market committee---Exemption from tax---Market committee was exempt from the chargeability of tax prior to the amendment in S. 4(b) of Punjab Urban Immovable Property Tax Act, 1958 ('the Act') brought through the Punjab Finance Ordinance, 2002 ('the Ordinance')---After the said amendment the term "local authority" had been deleted and exemption was only available to "Provincial Government" or to a "local government" as defined under the Local Government Ordinance, 2001---Market committee did not fall into either of the two, therefore, it was liable to pay tax under the Act after the amendment in S. 4(b) of the Act brought about through the Ordinance on 25-6-2002.

Province of Punjab v. Market Committee 2011 SCMR 1856 ref.

Rana Shamsad Khan, Additional A.-G. for Petitioners.

Syed Shahid Hussain Shah, Advocate Supreme Court and Izhar Saleem, Secy., Market Committee for Respondents (in C.P. 1926-L of 2015).

Nemo for Respondents (in C.P. 1927-L of 2015).

2019 S C M R 1102

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Deputy Attorney General---Appellant

Versus

ABDUL ALI---Respondent

Criminal Appeal No. 12-P of 2013, decided on 29th April, 2019.

(Against the judgment dated 23.01.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 632 of 2005).

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Appeal against acquittal--- Benefit of doubt--- Accused was allegedly apprehended at a police check post and found in possession of 17 kilograms of opium---High Court acquitted the accused---Held, that there was no explanation provided for the discrepancy between the date of accused's arrest and his remission into police custody for registration of criminal case---Furthermore the contradictions in the statements of two of the prosecution witnesses were not trivial---Charge against the accused was not free from doubt---Appeal against acquittal of accused was dismissed accordingly.

Manzoor Khan Khalil, Additional Advocate-General, Khyber Pakhtunkhwa and Tariq Khan, Advocate Supreme Court for Appellant.

Noor Alam Khan, Advocate Supreme Court for Respondent.

2019 S C M R 1104

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

MEERA SHAFI (MEESHA SHAFI)---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another---Respondents

Civil Petition No. 1352 of 2019, decided on 14th May, 2019.

(Against the order dated 27.03.2019 of the Lahore High Court, Lahore passed in Writ Petition No. 17963 of 2019)

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

----Art. 130---Civil Procedure Code (V of 1908), O. XIX---Order of production and examination of witnesses---Scope---Cross-examination of witnesses preferably on the same date---Both the parties conceded for a consent order on the terms that plaintiff in terms of O. XIX of the C.P.C. shall file affidavit-in-evidence of witnesses (mentioned at serial Nos. 2 to 8 in the list of witnesses); that the affidavit-in-evidence of all the said witnesses shall be filed within seven days by the plaintiff with advance copy to the defendant, who shall cross-examine the witnesses within seven days thereafter as may be fixed by the trial Court; that the defendant shall cross-examine all the witnesses including the witness, who had already recorded her examination in chief, preferably on the same date; that any witness left over who could not be cross-examined on the said date may be cross-examined on the following day as may be fixed by the Trial Court; that no party shall seek undue adjournments in the entire exercise; and, that other witnesses of the plaintiff, if so desired, could be examined as may be ordered by the trial court in the sequence considered appropriate---Supreme Court directed that the present matter shall proceed in terms of the consent order and that both parties shall refrain from undue adjournments and/or making unnecessary applications to prolong the timeline of three months given by the High Court to dispose of the present case---Petition for leave to appeal was converted into appeal and disposed of accordingly.

Barrister Haris Azmat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ali Sibtain Fazli, Advocate Supreme Court, Muhammad Ali Raza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.2.

2019 S C M R 1106

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Mrs. SHAGUFTA SHAHEEN and others---Appellants

Versus

The STATE through D.G. NAB, Khyber Pakhtunkhwa and another---Respondents

Criminal Appeals Nos. 21-P, 22-P and 23-P of 2013, decided on 29th April, 2019.

(On appeal from the judgment of Peshawar High Court, Peshawar dated 22.03.2012 passed in Crl. As. Nos. 11, 12 and 13 with Cr. M. Nos. 16, 17 and 18 of 2006)

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

----S. 12(c)(iv), first proviso & S. 13---Charge of corruption and corrupt practices---Order for freezing of properties by Chairman, National Accountability Bureau (NAB)---Confirmation of such order by Accountability Court beyond the period of 15 days stipulated under first proviso to S. 12(c)(iv) of the National Accountability Ordinance, 1999 ('the Ordinance')---Once Chairman NAB passed an order for freezing under S. 12 of the Ordinance, it had a lifespan of 15 days, unless confirmed by the Court---Prosecution had to move the Court for confirmation of the order---If the prosecution failed to do so within 15 days, any subsequent application for confirmation was not maintainable for the reason that there was no order in the field---In case the application for confirmation was filed within 15 days of the order of the Chairman, NAB it shall continue to subsist till the Court adjudicated upon the matter, otherwise the purpose of confirmation would fall to the ground---No timeframe was given under the Ordinance for the court to decide the application for confirmation except the general urgency expressed in the Preamble to the Ordinance and the expeditiousness underlined in conducting the trials under S. 16 and carrying out the investigation under S. 18 of the Ordinance---Court must decide the application for confirmation/objection under Ss. 12 & 13 of the Ordinance at the earliest---Section 12(f) of the Ordinance provided that if the order of freezing had been passed it shall remain operative until the final disposal of the 'case' by the Court---Application for confirmation of the order passed for a "case" under S. 12(f) and, therefore, order shall remain operative till the application for confirmation was decided by the Court.

PLD 2008 Lah. 347 and PLD 2001 Kar. 48 distinguished.

(b) Constitution of Pakistan---

----Art. 10A---Right to fair trial and due process---Scope---Delay in concluding trial---Long delays in deciding matters did not sit well with the right to fair trial and due process guaranteed as a Fundamental Right under Art. 10A of the Constitution.

Abdul Sattar Khan, Advocate Supreme Court for Appellants (in all cases).

Syed Azeem Dar, Additional PGA for the NAB/State (in all cases).

2019 S C M R 1111

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, JJ

Messrs SUPER ENGINEERING and another---Appellants

Versus

COMMISSIONER INLAND REVENUE, KARACHI---Respondent

Civil Appeals Nos. 481 and 482 of 2015, decided on 24th April, 2019.

(On appeal against Order dated 14.04.2015 of the High Court of Sindh, Karachi passed in I.T.R.As. Nos. 189 and 190 of 2010)

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 153(6A) [as amended by the Finance Act (I of 2008)]---Payment for goods and services---Association of Persons (AOPs)---Declaration of income under the normal or presumptive tax regime---In terms of S.153 of the Income Tax Ordinance, 2001, as it existed prior to the amendments made by the Finance Act, 2008, the appellant-companies were "prescribed person" registered as AOPs with the revenue authorities, engaged in the manufacturing of auto parts, and their income generated from the supply made thereof would bring their cases within the scope of subsection (6A) and thus entitle them to submit their returns under the normal tax regime, and not the presumptive tax regime provided under sub­section (6) of S. 153 of the Ordinance---Amendments made in S. 153(6A) by the Finance Act 2008 had substituted the words "any person" with that of "a company", and thereby restricted the scope of "prescribed person", who could be excluded from declaring their return under the presumptive tax regime mandated in subsection (6A) of S. 153 of the Ordinance---With the said amendment, only a company that was manufacturing the goods generating the income would be excluded from the purview of the presumptive tax regime---In the circumstances, even if we regard the said amendment to be procedural in nature, it would not have retrospective effect, as valuable rights had already accrued and matured in favour of the appellants at the culmination of the tax year 2008 i.e. on 30-06-2008---Income of the appellants for the tax year 2008 was to be assessed under the normal tax regime and not the presumptive tax regime---Appeals were allowed accordingly.

(b) Interpretation of statutes---

----Applicability of an enactment could best be adjudged from its expressed content and implied intent.

(c) Interpretation of statutes---

----When the enactment itself provided for the same to have effect from a particular point in time, the express command of the legislature was to be abided, interpreted and applied accordingly.

(d) Interpretation of statutes---

----Fiscal statute---Amendments, applicability of---Scope---Charging provisions were to be applied prospectively, unless the statute expressly provided otherwise---Secondly, the assessment and recovery provisions were to be considered retrospectively unless the enactment expressly or impliedly provided otherwise.

The Colonial Sugar Refining Company v. Irving 1905 AC 369; Muhammad Ishaq v. State PLD 1956 SC 256; Nagina Silk Mill, Lyallpur v. Income Tax Officer, A-Ward, Lyallpur PLD 1963 SC 322; The State v. Muhammad Jamel PLD 1965 SC 681; Abdul Rehman v. Settlement Commissioner PLD 1966 SC 362; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Ch. Safdar Ali v. Malik Ikram Elahi and another 1969 SCMR 166; Muhammad Abdullah v. Imdad Ali 1972 SCMR 173; Bashir v. Wazir Ali 1987 SCMR 978; Mst. Nighat Yasmin v. National Bank of Pakistan PLD 1988 SC 391; Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi 1994 SCMR 1007; Malik Gul Hasan and Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237; Commissioner of Income Tax, Peshawar v. Islamic Investment Bank Ltd. 2016 SCMR 816 and Additional Commissioner Inland Revenue, Audit Range, Zone-I v. Eden Builders Limited 2018 SCMR 991 ref.

Syed Naveed Amjad Andrabi, Advocate Supreme Court for Appellants.

Ms. Misbah Gulnar Sharif, Advocate Supreme Court and Abdul Hameed Anjum, Chief (Legal) FBR for Respondent.

2019 S C M R 1122

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Director ANF Peshawar---Appellant

Versus

FAKHAR ZAMAN---Respondent

Criminal Appeal No. 7-P of 2014, decided on 30th April, 2019.

(On appeal from the Judgment dated 28.05.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 558 of 2010)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Sentence, enhancement of---Mandatory life sentence---Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight---Accused was found in possession of 82.6 kilograms of charas garda as well as 07 kilograms of charas pukhta---Trial Court convicted the accused under S. 9(c) of the Control of Narcotics Substances Act, 1997 and sentenced him to imprisonment for life---High Court upheld the conviction, however reduced the sentence to ten years imprisonment---Plea of prosecution that that there was no occasion for the High Court to reduce the sentence from imprisonment for life to ten years as according to the proviso to S. 9(c) of the Act, lowest mandated sentence for possessing contraband in excess of ten kilograms was imprisonment for life and as the High Court maintained accused's conviction, it had no option but to maintain the quantum of sentence as well---Held, that the law unambiguously provided a sentence not less than imprisonment for life as well as fine in case an offender was held guilty of possessing contraband in excess of ten kilograms, therefore impugned view taken by the High Court was open to exception---Consequently appeal was allowed, impugned judgment of High Court was set aside and the sentence of life imprisonment awarded by the Trial Court was restored.

(b) Criminal trial---

----Absconsondment of accused---Case to be decided on merits in absence of accused---Where accused was sent repeated process to appear before court but found it convenient to stay away from the law, and his absence was seemingly calculated to avoid the judicial process, the accused though endowed with right of opportunity of hearing, nonetheless, could not hold the process of law in abeyance to a point of time of his own choice---Case of such an accused could be decided even in his absence if the default (abscondment) was deliberate.

Muhammad Tariq Shah, Special Prosecutor, ANF for Appellant.

Nemo for Respondent.

2019 S C M R 1124

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

PAKISTAN STATE OIL CO. LTD., KARACHI---Appellant

Versus

COLLECTOR CUSTOMS CENTRAL EXCISE AND SALES TAX and another---Respondents

Civil Appeals Nos. 911 to 915 of 2009, decided on 18th October, 2018.

(On appeal from the judgment/order dated 29.1.2009 of the High Court of Sindh, Karachi passed in R.As. Nos. 77, 78, 79, 80, 81 of 2009)

(a) Central Excises and Salt Act (I of 1944)---

----S. 3-B---Sales Tax Act (VII of 1990), S. 34---Consignments meant for export sold locally within Pakistan---Tax fraud---Imposition of additional tax and duty under S. 3-B of Central Excise Act, 1944 and S. 34 of the Sales Tax Act, 1990---Clear factual finding by the Tribunal provided a sound basis for the imposition of such additional tax and duty, which finding could not be assailed before the Supreme Court---Appeals were dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 185---Finding of fact---Such finding could not be assailed before the Supreme Court.

Isaac Ali Qazi, Advocate Supreme Court for Appellant (in all cases).

Raja Muhammad Iqbal, Advocate Supreme Court and Dr. Tariq Masood, Member Legal (FBR) for Respondents (in all cases).

2019 S C M R 1126

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Munib Akhtar, JJ

COLLECTOR OF CUSTOMS---Appellant

Versus

Messrs FAISAL ENTERPRISES---Respondent

Civil Appeal No. 251 of 2015, decided on 14th May, 2019.

(On appeal against the judgment dated 03.01.2014 of the High Court of Sindh, Karachi in Special Customs Reference Application No.69 of 2010)

Customs Act (IV of 1969)---

----S. 25(5)---Value of imported goods---Actual transaction value as reflected in the invoices, Letter of Credit and Goods Declaration---Actual transaction value of each of the two imported consignments was USD 175 and USD 180 per metric ton respectively, which was duly reflected in the Letter of Credit and the Goods Declaration filed at the time of in-bonding of goods---Importer contended that the goods at the time of in-bonding upon inspection were found to be of secondary quality instead of prime quality and as similar goods of secondary quality imported from the same country of origin and shipped on the same ship were assessed at USD 157 per metric ton, hence the goods were to be assessed under S. 25(5) of the Customs Act, 1969 ('the Act') at USD 157 per metric ton---Held, that when the goods without any difficulty could be assessed on the basis of the transaction value under subsection (1) of S. 25 of the Act i.e. the price actually paid or payable for the goods sold for export to Pakistan, then the question of invoking subsection (5) of S. 25 did not arise at all---Only in circumstances when the goods could not be assessed on transaction value then they were to be assessed on the basis of the value of identical goods sold for export to Pakistan at about the same time at which the goods were being valued under subsection (5) of S. 25---In the present case it was not the case of the importer that the goods were not the same as were originally ordered, which resulted in raising a claim with foreign supplier for refund of the differential amount---Hence, the two consignments imported by the importer were liable to be assessed at the undisputed transaction value reflected in the invoices, the Letter of Credits and the Goods Declarations that were filed at the time of arrival of goods, which was admittedly USD 175 and USD 180 per metric ton respectively.

Raja M. Iqbal, Advocate Supreme Court for Appellant.

Raja Zafar Khaliq Khan, Advocate Supreme Court for Respondent.

2019 S C M R 1129

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Rana ABDUL KHALIQ---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 446-L of 2016, decided on 13th May, 2019.

(Against the order dated 05.03.2002 passed by the Lahore High Court, Lahore in Crl. Misc. No. 4722 of 2019)

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

----Ss. 498 & 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, cancellation of---High Court confirmed ad interim bail of accused on the ground that he did not 'misuse' ad interim bail and that he was going to be released on post arrest bail if at all, remitted into custody---Held, that grant of pre-arrest bail was an extra ordinary remedy in criminal jurisdiction; it was diversion from usual course of law i.e. arrest in cognizable cases---Pre-arrest bail was a protection to the innocent who were being hounded on trumped up charges through abuse of process of law, therefore an accused seeking judicial protection was required to reasonably demonstrate that intended arrest was calculated to humiliate him with taints of mala fide---Pre-arrest bail was not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampered the course of investigation---Considerations of mala fide, ulterior motive or abuse of process of law were conspicuously missing in the present case---Petition for lave to appeal was converted into appeal and allowed and pre-arrest bail granted to accused was cancelled.

Hidayat Ullah Khan's case PLD 1949 Lahore 21 ref.

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

----S. 498---Pre-arrest bail, grant of---Scope---Grant of pre-arrest bail essentially required considerations of mala fide, ulterior motive or abuse of process of law.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for leave to appeal filed before the Supreme Court seeking cancellation of pre-arrest bail granted to accused---Accused in attendance but not arranging representation/counsel despite notice and knowledge---Supreme Court observed that the accused by not arranging representation had seemingly used it as a strategy to win time but this did not absolve the Supreme Court to decide the petition posted for hearing at public expense---Petition for leave to appeal was converted into appeal and allowed and pre-arrest bail granted to accused was cancelled.

Qari Nadeem Ahmed Awaisi, Advocate Supreme Court for Petitioner.

Respondent No.2 in person.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab with Tariq Mehmood, S.-I. for the State.

2019 S C M R 1132

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

MOHAMMAD IMRAN and others---Appellants

Versus

PROVINCE OF SINDH through Chief Secretaryand others---Respondents

Civil Appeals Nos. 1095-1097, 134-L, 1021-1026, 1138, 1154-1158, 1486 and 1487, and Civil Petitions Nos. 4475, 4476 of 2018 and 1362 of 2019 and Criminal Original Petitions Nos. 14, 18, 25, 26 and Civil Review Petitions Nos. 16, 17, 20, 37-49, 77, 127-133 of 2019 and Civil Miscellaneous Applications Nos. 462, 465, 508, 686, 1085, 1970, 1974, 1976, 1982, 2050, 2619, 2623, 2659, 2660, 2664, 2875, 2880 of 2019, and 8466, 8806 of 2018, decided on 12th June, 2019.

Per Ijaz ul Ahsan, J; Asif Saeed Khan Khosa, C.J. agreeing; Faisal Arab, J dissenting (only to the extent of Rule 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005)

(a) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7-A [as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act (VIII of 2017)]---Constitution of Pakistan, Arts. 18, 23, 24 & 25A---Private schools in province of Punjab---Academic fees, increase in---Section 7-A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, (the Ordinance) vires of---Section 7-A of the Ordinance was intra vires the Constitution and did not violate Arts. 18, 23, 24 or 25-A thereof. [Majority view]

(b) Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---

----R. 10---Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002), S. 15(2)(b)---Constitution of Pakistan, Arts. 18, 23, 24 & 25A---Private schools in province of Sindh---Minimum salary and allowances of a full-time teacher with twelve months of continuous service---Rule 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 (the Rules), vires of---Rule 10 of the Rules was intra vires the Sindh Private Education Institutions (Regulation and Control) Ordinance, 2001, and the Constitution. [Majority view]

Bushra Jabeen and 367 others v. Province of Sindh through Chief Secretary and others 2018 MLD 2007 affirmed.

(c) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7-A [as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act (VIII of 2017)]---Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, R. 7(3)---Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002), S. 15(2)(c)---Constitution of Pakistan, Art. 18---Private schools in provinces of Punjab and Sindh---Academic fees, increase in---[Per Ijaz ul Ahsan, J (Majority view): All interim orders passed during the pendency of the present case (including the order regarding reduction of fees by 20% as an interim measure) had ceased to be effective, subject to recalculation of fee by using the fee prevailing in the year 2017 as the base fee, in accordance with the provision(s) of the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 and onwards, for the Province of Punjab---For the Province of Sindh, fees may be recalculated using the fee prevailing on 29-06-2017 as the base fee and onwards, in accordance with the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 (gazetted on 29.06.2017)---Supreme Court directed that the (private) schools shall not recover any arrears on account of the reduction in fee by reason of the interim order of the Supreme Court dated 13-12-2018 till the date of present judgment; that all schools shall collect the fee, strictly in accordance with the procedure and timeframe provided by the law, the rules and regulations including, but not limited to the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 and the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005]---[Per Faisal Arab, J (Minority view): Object of the law should be to check profiteering after students were admitted in schools, but when the fee of any particular service was regulated in a manner that had the potential of gradually eating-up legitimate margins of profit, it made businesses compromise on their quality lest they would run into losses which in turn led to layoffs or their eventual closure---To allow increase in tuition fee was not something that was to be equated with some concession or benefit granted by the State as it was mainly intended to compensate for the diminution in the purchasing power of currency of the country---Revision in tuition fee should be solely intended to meet the ever increasing cost of running of a school and at the same time persevering reasonable margin of profit ---Limiting the raise in school fees to 5% only under R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 ('the 2005 Rules'), would be too harsh a financial restriction as it did not fully take care of the cost of running a school in comparison to the cost of its previous academic year---Such fact was evident from the value which the currency of the country had consistently been shedding in any five year period---Looking from such angle too, the arbitrarily determined cap of 5% imposed under R. 7(3) would certainly act as an unreasonable restriction on carrying on a lawful business---Inbuilt cumbersome process to seek increase in tuition fee under R. 7(3) also amounted to unreasonable restriction---In view of the arbitrary cap of 5% increase in fee imposed by R. 7(3), there was a strong possibility that many of the private schools in Sindh at a certain point in time may not be able to fully absorb the increase in the cost of running a school or the cost of the facilities provided to the students---Consequently the existing private schools may start closing down or the number of their branches may dwindle which in turn would make it very difficult to cope with the ever increasing demand for good quality educational institutions---In the present case no one had argued that any cartel existed that did not leave much choice with the parents but to admit their children in a particular set of school systems only, therefore, there existed no monopoly in the fixation of tuition fees---Raising the cap of 5% provided in R. 7(3) to an automatic increase upto 8% in an academic year without recourse to Registering Authority would bring it closer to the ground realities and within the limits of reasonableness and at the same time save the department and the schools much of the inconvenience in the periodical revision of tuition fees---His Lordship directed the Provincial Government [Sindh] to amend R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 accordingly within a period of two months].

(d) Rules, vires of---

----Where a Rule had the effect of being an unreasonable restriction, it could be struck down.

Ahmed Hassan v. Government of Punjab PLD 2004 SC 694 ref.

In attendance:

Shahid Hamid, Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal Siddiqui, Advocate Supreme Court, Aftab Alam Yasir, Advocate Supreme Court, Hassan Nawaz Makhdoom, Advocate Supreme Court, Hamid Ali Shah, Advocate Supreme Court, Muhammad Ali Raza, Advocate Supreme Court, Ms. Ayesha Hamid, Advocate Supreme Court, Ms. Shireen Imran, Advocate Supreme Court, Rashid Mehmood Sindhu, Advocate Supreme Court, Syed Faisal Hussain Naqvi, Advocate Supreme Court, Shahzad Ata Elahi, Advocate Supreme Court, Salim-ur-Rehman, Advocate Supreme Court, Muhammad Ikram Ch., Advocate Supreme Court, Fauzi Zafar, Advocate Supreme Court, Taffazul Haider Rizvi, Advocate Supreme Court, Khurram Mumtaz, Advocate Supreme Court, Sardar Muhammad Ajaz Khan, Advocate Supreme Court, Zaheer Bashir Ansari, Advocate Supreme Court, Sharjeel Adnan Sheikh, Advocate Supreme Court, Abid Hussain Chatta, Advocate Supreme Court, Barrister Haroon Mumtaz, Advocate Supreme Court, Mudassar Khalid Abbasi, Advocate Supreme Court, Khawaja Ahmad Hosain, Advocate Supreme Court, Rashid Hanif, Advocate Supreme Court, Muhammad Imtiaz Khan, Advocate Supreme Court, Ejaz Mehmood Ch., Advocate Supreme Court, Maqbool Ahmed Sheikh, Advocate Supreme Court, Iqbal Javed Dhallon, Advocate Supreme Court, Riasat Ali Gondal, Advocate Supreme Court, Barrister Suleman Akram Raja, Advocate Supreme Court, Muhammad Azhar Siddique, Advocate Supreme Court, Ch. Hafeez Ullah Yaqoob, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, Muhammad Sharif Janjua, Advocate-on-Record, Muhammad Kassim Mirjat, Advocate-on-Record, Ahmed Nawaz Ch., Advocate-on-Record, Aman Naseer, Advocate, Rana Shamshad Khan, Additional Advocate-General, Punjab, Abdul Latif Khan Yousafzai, Advocate-General, Khyber Pakhtunkhwa, Barrister Qasim Wadud, Additional Advocate-General, Khyber Pakhtunkhwa, Salman Talib-ud-Din, Advocate-General, Sindh, Barrister Shabbir Shah, Additional Advocate-General, Sindh, Sajid Ilyas Bhatti, Deputy Attorney-General for Pakistan.

Arbab Tahir Kasi, Advocate-General, Balochistan, Muhammad Ayaz Khan Swati, Additional Advocate-General, Balochistan, Tariq Mehmood Jehangiri, Advocate-General, Islamabad, Barrister Qasim Chohan, Additional Advocate-General, Punjab, Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa.

Ahmed Hussain Rana, in person.

Jessam Ubaid, in person.

Muhammad Javed Chohan, Law Officer (ED), Government of Punjab.

Qazi Shahid Pervez, Secretary Schools, Sindh.

Humayun Akhtar Sahi, Law Officer, Punjab.

Imtiaz Ali Qureshi, Chairman PEIRA.

Zubair Khan Shahid, D.S. Education, Lahore.

Muhammad Ikram Abbasi, L.O.

Dr. Mansoob Hussain Siddiqui, D.G. Private Schools, Government of Sindh.

Muhammad Tajasib Minhas and Umair Ahmed, representative of parents of the students from Lahore.

Athar Hussain, father of a student, Islamabad.

2019 S C M R 1144

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHAMOON (DECEASED) through Legal Representatives---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 303-L of 2018, decided on 30th May, 2019.

(On appeal from the judgment dated 29.1.2018 passed by the Lahore High Court, Multan Bench passed in Criminal Appeal No. 664 of 2011)

Criminal Procedure Code (V of 1898)---

----Ss. 299(e), 331, 386 & 431---Penal Code (XLV of 1860), S. 316---Qatl-shibi-i-amd---Diyat, payment of---Scope---Accused dying before final adjudication of his appeal---Diyat to be paid from estate of deceased-accused---Monetary punishment was to be carried out from the assets held by the offender; his death would not absolve the legacy---Diyat was amongst the punishments provided under Cr.P.C. and according to clause (e) of S. 299 thereof, it was compensation payable to the legal heirs of the victim---Section 331, Cr.P.C. provided that an offender burdened with payment of Diyat, in the event of default, shall remain lodged in prison until it was paid in full or through installments settled against security, however, under subsection (3) thereof, in the event of his death, it shall be recoverable from his estate---Combined reading of Ss. 331 & 431, Cr.P.C. unambiguously ensured continuation of appeal by an offender liable to payment of diyat even after his death.

Ch. Pervaiz Akhtar Gujjar, Advocate Supreme Court for Petitioner.

Sikandar Javed, Advocate Supreme Court for Respondent No.2.

Ch. M. Mustafa, Deputy Prosecutor-General for the State.

2019 S C M R 1146

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

WATER AND SANITATION AGENCY, LAHORE through M.D.---Petitioner

Versus

LOTTEE AKHTAR BEVERAGES (PVT.) LTD. LAHORE and others---Respondents

Civil Petitions Nos. 1195-1197 and 1322 of 2019, decided on 23rd May, 2019.

(On appeal from the judgment/order dated 28.02.2019 passed by Lahore High Court, Lahore in C.M.A. No. 2 of 2019 in W.P. No.11903 of 2019)

Constitution of Pakistan---

----Art. 184(3)---Lahore Development Authority Act (XXX of 1975), Ss. 28 & 29---High Court assuming jurisdiction over a lis sub-judice before the Supreme Court---Judicial impropriety---Judicial restraint, exercise of---Water tariff---During proceedings of a suo motu case the Supreme Court gave directions to charge and collect water tariff at the rate of Rs.1/- per litre from industrial units drawing piped or ground water used in the production of bottled water or beverages---Relevant Development Authority by way of impugned notification levied water tariff in compliance with directions of the Supreme Court---Respondents, who were aggrieved of the water tariff levied by way of the impugned notification, challenged the same before the High Court---High Court suspended the impugned notification---Held, that instead of bringing their objections before the Implementation Bench of the Supreme Court, the respondents chose to file Constitutional petitions before the High Court to express their misgivings---Any flaws or deficiencies in the steps taken by the Provincial Governments for the enforcement of the Supreme Court's directions were to be highlighted in the proceedings before the Implementation Bench of the Supreme Court---By entertaining and adjudicating a challenge to the impugned notification, the High Court had assumed jurisdiction over a lis that was sub-judice before the Supreme Court---Such course of action clearly offended the settled norms of judicial propriety and comity, which had to be disapproved--- Respondents' simultaneously resorting to a parallel remedy before the High Court indicated an attempt to undermine the judicial process by sidestepping the express directions given by the Supreme Court--- Such course was invalid for inviting conflicting opinions and bypassing the hierarchy of judicial fora---Supreme Court observed that it contemplated initiating appropriate action against the respondents but in the end decided to exercise judicial restraint---Case was adjourned with certain directions for devising mechanisms for collection of water tariff.

Mian Irfan Akram, Advocate Supreme Court for Petitioner.

Munawar-ul-Islam, Advocate Supreme Court and Farooq Amjad Mir, Advocate Supreme Court for Respondents.

Qasim Ali Chauhan, Additional AG and Ch. Faisal Fareed, Additional AG for Government of Punjab.

2019 S C M R 1150

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Advocate-General, Khyber Pakhtunkhwa---Appellant

Versus

MUHAMMAD RAFIQ and others---Respondents

Criminal Appeal No. 7-P of 2013, decided on 29th April, 2019.

(Against the judgment dated 31.01.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 530 of 2005).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Appeal against acquittal---Presence of complainant at scene of occurrence doubtful---Accused persons were alleged to have murdered the complainant's sons in her presence---Trial Court convicted the accused persons and sentenced them to life imprisonment---High Court acquitted the accused persons---Held, that the High Court had rightly found the complainant's presence at the crime scene during the occurrence doubtful---Emotional attachments apart, it was rather unusual for a woman more so in a Pashtun rural neighborhood to accompany her sons (deceased persons) at a public thorough fare to see them leave for another city, when her sons had already spent the preceding day in her company---Furthermore there was conflict between ocular account and medical evidence---In such backdrop, impugned acquittal was premised on a prudently possible view which could not be reversed merely on contra contemplation---Appeal against acquittal of accused persons was dismissed.

Syed Qaisar Ali Shah, Additional Advocate-General, Khyber Pakhtunkhwa for Appellant.

Nemo for Respondents.

2019 S C M R 1152

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Sardar Tariq Masood and Yahya Afridi, JJ

ARSALAN MASIH and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1396-L of 2018, decided on 3rd June, 2019.

(On appeal against the order dated 26.11.2018 passed by Lahore High Court, Lahore in Crl. Misc. No. 250104-B of 2018)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 380, 457 & 411---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, dishonestly receiving property stolen---Bail, grant of---Further inquiry---No direct evidence was available against the accused so far for the offence under S. 457, P.P.C. and prosecution relied upon certain circumstantial evidence which would be appreciated by the trial court after recording the evidence---Presently the case of the accused called for further inquiry as far as offence under S. 457, P.P.C. was concerned --- Other offences under Ss. 380 & 411, P.P.C. did not fall within the prohibition contained in S. 497, Cr.P.C. and in such like cases bail was a rule and refusal was an exception---Accused was a previous non-convict and his involvement in another case of similar nature without any conviction could not be a reason for refusal of bail especially when such case was registered after the registration of the present case---Accused was granted bail accordingly.

Tariq Bashir and 5 others v. The State PLD 1998 SC 34 distinguished.

Irfan Malik, Advocate Supreme Court for Petitioners.

M. Jaffar, DPG for the State.

Barrister Harris Azmat, Advocate Supreme Court for Respondent No.2.

2019 S C M R 1154

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar--Appellant

Versus

HASSAN JALIL and others---Respondents

Criminal Appeal No. 52-P of 2009, decided on 29th April, 2019.

(Against the judgment dated 28.1.2004 of the Peshawar High Court, Peshawar passed in Cr. A. No. 222 of 2003)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was alleged to have murdered his wife and critically injured his children inside the matrimonial house---Complainant (mother-in-law of the accused) had allegedly paid a surprise visit to the house of the accused and saw him commit the offence---High Court set aside conviction and sentence passed against the accused by the Trial Court and acquitted him---Held, that in the absence of positive proof the accused could not be held guilty for the crime either on the basis of suspicion, moral satisfaction or his failure to explain circumstances, leading to the crime---Prosecution's silence to explain as to what possibly prompted the accused to kill his own family was intriguing---Complainant, in the witness box, obliquely referred to a quarrel between the spouses, however, suggested cordial relations in the same breath---Complainant's arrival at the venue exactly at the point of time when the accused murdered his wife and injured his children was in itself a circumstance that reflected on the very genesis of the prosecution case---High Court had rightly found the prosecution case fraught with doubts--- Appeal against acquittal of accused was dismissed.

Qasim Wadud, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

Nemo for Respondents.

2019 S C M R 1156

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ASAD REHMAT---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 148-L of 2017, decided on 20th May, 2019.

(On appeal from the judgment dated 12.03.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 86-J of 2011 and C.S.R. No. 22-T of 2010)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Medical evidence---Rigor mortis---Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m. and concluded at 9.00 p.m.---Medical officer noted rigor mortis with respect to all corpses---Occurrence took place in month of March, and development of rigor mortis within such short span of time was mind boggling---Occurrence did not appear to have taken place at the point of time mentioned in the crime report---Appeal was allowed and accused was acquitted in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Accused allegedly exchanged fire with a police contingent and during the occurrence several people including police officials lost their lives---Single individual holding the police party at bay, escaping retaliatory fires, jumping from one roof top to another, snatching a motorbike, fleeing within the view and reach of a police party with a vehicle was a story that was not easily believable---Motorbike allegedly snatched by accused belonged to a co-villager, who was the best witness to prove the charge, but he was conspicuously not arrayed as a witness---Similarly, the alleged abductee of a criminal case in connection with which the police wanted to arrest the accused, was also not arrayed as a witness---Appeal was allowed and accused was acquitted in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Recovery of weapon and crime empties---Although the casings/empties tallied with the weapon, however, these were dispatched on a date subsequent to arrest of accused and thus such piece of evidence lost its significance---Appeal was allowed and accused was acquitted in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Case of cross-firing between accused and police---Dimensions of injuries sustained by deceased persons---Entry wound apertures found on the dead bodies of deceased persons were vastly different in size and dimensions, unambiguously ruling out use of single weapon and ammunition during the occurrence---Police failed to secure casings ejected from their own weapons, statedly used against the accused---Except the dead, all others miraculously survived the assault unscathed---Such aspects lent credence to the plea taken by the accused that he was not present in the house at the time of occurrence and that there was intense and indiscriminate firing between the police and other members of his family---Appeal was allowed and accused was acquitted in circumstances.

Syed Zahid Hussain Bukhari, Advocate Supreme Court and Ms. Khalida Parveen, Advocate Supreme Court for Appellant.

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

2019 S C M R 1160

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

WATER AND SANITATION AGENCY, LAHORE through Managing Director---Petitioner

Versus

LOTTE AKHTAR BEVERAGES (PVT.) LTD., LAHORE and others---Respondents

Civil Misc. Application No.230 of 2019 in Suo Motu Case No.26 of 2018 and Civil Misc. Applications Nos.4479, 4955 and 4956 of 2019 in Civil Misc. Application No.230 of 2019 in Suo Motu Case No.26 of 2018 and Civil Review Petitions Nos.109, 150 to 153, 165, 214 to 226 of 2019 in Suo Motu Case No.26 of 2018 and Civil Misc. Application No.2072 of 2019 in Civil Review Petition No.Nil of 2019 in Suo Motu Case No.26 of 2018 and Civil Petitions Nos. 1195, 1196, 1197 and 1322 of 2019, decided on 2nd July, 2019.

(Regarding selling of Bottled Water extracted from the ground without any charge and its fitness for Human Consumption)

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu case regarding selling of bottled water extracted from the ground without any charge and its fitness for human consumption---Water cess, levy of---Proposed legislation for the charge and collection of water cess---Industrial users---Supreme Court directed that the ambit of the proposed regulatory law for water conservation shall be extended gradually to other categories of consumers (other than industrial users); that six weeks' time was granted to the Provinces and Capital Territory for installing the flow meters at the industrial units where bottled drinking water or other beverages were prepared for measuring the volume of water that was consumed, utilized and wasted; that the specifications and data about such meters shall be shared by them with the Coordination Committee formed on directions of the Supreme Court; that all funds of the water cess shall be deposited by the Provincial governments and Capital Territory in the National Bank account established by them under the title "Water Conservation Account" in one of the authorized branches of the said Bank; that upon deposit the National Bank shall forthwith transfer such funds from its respective branches to the Head Office Account bearing the title Principal Water Conservation Account ("Principal Account"); that all funds credited to the Principal Account shall be invested immediately in the best available National Bank investment scheme on a daily balance basis for onward recurring investment in 03 months treasury bills at the first available biweekly auction by the State Bank of Pakistan; that the said funds deposited with the National Bank shall be reported to the Supreme Court through monthly statements providing the details of the depositor agencies, the amount of deposit, date thereof and profit accrued on daily basis, the date of transfer to Principal Account, its investment and maturity value in Treasury Bills and the dates thereof; that the charging of, transfer, disbursement and use of such funds shall be subject to orders of the Supreme Court---Case was ordered to be re-listed for further hearing with the said directions.

(b) Constitution of Pakistan---

----Art. 184(3)---Suo motu case regarding selling of bottled water extracted from the ground without any charge and its fitness for human consumption---Plant which filtered and cleansed canal water to supply pure drinking water---Supreme Court directed that the Provincial Governments shall apprise whether they had received offers of foreign assistance for establishing such plants and if so, their responses thereto; that details of one such plant installed in one of the Provinces were made available during hearing of present case; that further technical and financial details about the said project as well as its smaller variants shall be filed by the concerned Provincial Government with disclosure of the foreign sponsor and its terms of assistance; that available funds were to be deployed in areas that were severely deficient in clean drinking water, for example certain desert lands and such like areas in a Province where canal water may be procured for supply to drinking water treatment plants installed for public consumption; that concerned urban water supply agencies throughout the country shall consider the framing of regulations and or executive directions that mandated the installation of push-button faucets at water supply points in all public and commercial premises; that the proposed means, mechanism, incentives based on locally manufactured equipment and penalties for enforcing the regulatory measures shall be presented in writing to the Supreme Court before the next date of hearing, and that, the Provinces and Capital Territory shall share their experiences and knowledge about simple, cost efficient methods for rain harvesting and for recycling used water---Case was ordered to be re-listed for further hearing with the said directions.

In attendance:

Sajid Ilyas Bhatti, Addl. A.G.P., Tariq Mehmood Jehangiri, A.G. Islamabad, Qasim Chohan, Addl. A.G. Punjab, Barrister Qasim Wadood, Addl. A.G. Khyber Pakhtunkhwa, Ayaz Swati, Addl. A.G. Balochistan, Zahid Nawaz Cheema, Advocate Supreme Court, Mian Abdul Rauf, Advocate Supreme Court, Mian Irfan Akram, Advocate Supreme Court, Khalid Javed Khan, Advocate Supreme Court, Qasim Mirjat, Advocate-on-Record, Suleman Akram Raja, Advocate Supreme Court, M. Munir Paracha, Advocate Supreme Court, Hassan Irfan Khan, Advocate Supreme Court, Munawar-us-Salam, Advocate Supreme Court, Iftikhar Ahmed Mian, Advocate Supreme Court, Farooq Amjad Meer, Advocate Supreme Court, Gulzar Begum, Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court, Dr. M. Ahsan Siddiqui, Head of Committee, Ashiq Ali, Director SEPA, Shahbaz Ahmed Sheikh, Law Officer Finance, Punjab, M. Ramzan, A.D. Legal EPA, Dr. Zubair Khan, in person, Syed Zahid Aziz, M.D. WASA Lahore, Aamir Latif, Secy. Industry Khyber Pakhtunkhwa, Rahim Ullah, S.O Local Govt. Khyber Pakhtunkhwa, Wajhat A. Qureshi, Executive Vice President, NBP and M. Ali Bator, Acting Dir. EPA Balochistan.

2019 S C M R 1165

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

AHSAN SHAHZAD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 293-L of 2017 and Criminal Petition No. 25-L of 2015, decided on 28th May, 2019.

(On appeal against the judgment dated 3.12.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 363-J of 2011 and C.S.R. No. 39-T of 2011)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Occurrence was reported to the police on the same afternoon half an hour of its happening on the basis whereof formal FIR was chalked out---Even post-mortem examination on the dead body was conducted on the same day within 3-1/2 hours of the occurrence---Such circumstances, when taken into consideration collectively, established presence of the witnesses of ocular account at the spot and ruled out any chances of consultations or deliberations for false implication of the accused in the case---Witnesses were residents of the same city where the occurrence took place and it was brought on record through their cross-examination that they had visited the office of the deceased in connection with some important work---Ocular account was fully supported by the medical evidence---Prosecution had successfully brought home guilt of the accused to hilt so far as the murder of deceased, therefore, present appeal to the extent of conviction of accused for qatl-i-amd of deceased had no force---Appeal was dismissed accordingly.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Conviction under S. 7 of the Anti-Terrorism Act, 1997, setting aside of---Murder committed due to personal vendetta---Conviction and sentence of the accused recorded by the Trial Court and altered/modified by the High Court under S. 7(a) of the Anti-Terrorism Act, 1997 could not be sustained because the prosecution alleged a specific motive in the FIR as well as before the Trial Court---Although according to the verdict of the High Court the said motive was not proved but the fact remained that the prosecution pressed hard that the murder of deceased was committed because of personal vendetta---Moreover, it was brought on record through the cross examination of complainant that the provisions of Anti-Terrorism Act, 1997 were added in the case after a considerable delay---Considering the overall circumstances of the case, the provisions of Anti-Terrorism Act, 1997 were not attracted in the case particularly when only deceased was the target---Accordingly conviction and sentence of the accused under S. 7(a) of the Anti-Terrorism Act, 1997 was set aside and he was acquitted of the said charge, however sentence of imprisonment for life under S. 302(b), P.P.C., the amount of compensation and the sentence in default thereof as altered/upheld by the High Court were maintained---Appeal was dismissed accordingly.

Naveed Ahmad Khawaja, Advocate Supreme Court for Appellant.

M. Akram Qureshi, Advocate Supreme Court for Petitioner.

Ch. Muhammad Mustafa, DPG for the State.

M. Akram Qureshi, Advocate Supreme Court for the Complainant.

2019 S C M R 1170

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

TARIQ MEHMOOD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 75-L of 2017, decided on 9th May, 2019.

(On appeal from the judgment dated 22.04.2014 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 1098 and 1116 of 2009, Murder Reference No. 291 of 2009 and Criminal Revision No.866 of 2009)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused party mounted an assault on the complainant side allegedly to settle a score with a witness for his alleged affair with the lady related to the accused side---As per prosecution's own case both parties were face to face, with the said witness present well within the view and reach of the accused side, but surprisingly they spared the said witness who was the prime target of assault---No other inference could be drawn from such circumstances other than that either said witness was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report---More intriguing was recovery of the alleged abductee who was abducted by the accused side---Said abductee claimed to have remained in captivity for twenty days, to settle score for what her brother had done to a lady from the accused side---Astonishingly no one from the accused side laid a finger upon the said lady despite being at their mercy, and she was returned unharmed---After having shed so much blood it was not understandable why the abducted lady was kept unhurt---Statement of alleged abductee was contradicted by the investigating officer, who stated that the alleged abductee rejoined her family on her own without intervention of the police---Once the genesis of prosecution case was found to be inherently suspect, loss of life notwithstanding, it was grievously unsafe to maintain the convictions in a case fraught with improbabilities---Appeal was allowed and convictions and sentence of the accused were set aside.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Autopsy conducted belatedly without any explanation---Occurrence, statedly, took place at 8.15 p.m. however autopsy was conducted following day at 11.45 a.m.---Hypothesis of consultations/deliberations could not be ruled out during such interregnum---Appeal was allowed and convictions and sentence of the accused were set aside.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellant.

Azam Nazeer Tarar, Advocate Supreme Court for the Complainant.

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

2019 S C M R 1210

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ZUBAIR and another---Appellants

Versus

The State and another---Respondents

Cr. Appeals Nos. 149-L and 150-L of 2017, decided on 1st July, 2019.

(On appeal from the judgment dated 4.3.2015 of the Lahore High Court, Lahore passed in Criminal Appeal No. 305 of 2010 and CSR No. 5-T of 2010)

Penal Code (XLV of 1860)---

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(e)---Qatl-i-amd, kidnapping or abduction for ransom, common intention, acts of terrorism---Reappraisal of evidence---Very genesis of the case was suspect, as according to the complainant he presented application for registration of case on 2-1-2009 whereas according to the police it was received on 7-1-2009---Said fact was confirmed not only by an endorsement but also copy of First Information Report---Said FIR did not contain all the details that the complainant subsequently mentioned in the witness box---Manner in which the complainant, statedly, followed the accused and his co-accused wife to pay ransom was far from being confidence inspiring; there did not appear any earthly reason as to why the accused would take his wife and minor son with him to accomplish a task that he could have singularly achieved---More surprising was the act of accused in exposing himself to the witnesses, particularly when he had planned to do away with the abductee---Subsequent demand of ransom and complainant's compliance therewith was yet another aspect that could not be taken without a pinch of salt---Test identification parade did not advance prosecution's case as well, as two of the witnesses failed to pick the accused and co-accused in test identification parade due to which both of them had been withheld---Rent deed produced by the prosecution on the face of it appeared to be a fabricated instrument and as such does not constitute positive proof of accused's occupancy of the premises wherefrom incriminating articles were recovered---On the whole, prosecution case was fraught with doubts, thus it would be unsafe to maintain the convictions---Appeals were allowed, impugned judgment was set aside, and the accused and co-accused were acquitted of the charge.

Dr. Khalid Ranjha, Senior Advocate Supreme Court and Mazhar Ali Ghallu, Advocate Supreme Court for Appellants (in Criminal Appeal No. 149-L of 2017).

Zafar Mehmood Ch., Advocate Supreme Court for Appellants (in Criminal Appeal No. 150-L of 2017).

Shaukat Rafiq Bajwa, Advocate Supreme Court for the Complainant (in both cases).

Ch. Muhammad Mustafa, DPG for the State.

2019 S C M R 1214

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Syed ANWAR ALI SHAH and another---Appellants

Versus

IRFAN ALI and others---Respondents

Criminal Appeals Nos. 52-L and 53-L of 2013, decided on 25th June, 2019.

(Against the judgment dated 26.10.2010 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 50 of 2006 and M.R. No. 11 of 2006)

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

----S. 7---Act of terrorism---Reappraisal of evidence---Appeal against acquittal---Accused allegedly snatched a car and used the same for causing an explosion which resulted in massive loss of human life---High Court viewed prosecution's evidence as being flawed and insufficient to drive home the charge beyond reasonable doubt and acquitted the accused---Held, that the alleged witness who had seen the accused park the snatched car at the spot of the incident, despite being in close vicinity with the epicenter, survived unscathed---Said witness withheld such vital information at the time of registration of case---Witness from whom the vehicle was snatched claimed that his vehicle was snatched at 7.00 p.m. whereas crime was reported on the following day at 1.20 a.m.---Such a massive blast could not be carried out in a short span of time, in a slipshod manner; it was a time intensive exercise, which required elaborate logistical support---Evidence of the owner of guest house, where the accused allegedly stayed along with his accomplices was also doubtful as there was no occasion for the accused to stay overnight at a guest house when according to the prosecution, during the same night, he was busy with his colleagues in snatching a vehicle---One of the attendants of the said guest house was declared hostile upon his failure to oblige the prosecution, and did not participate in the identification parade as well---No circumstances were found to interfere with the conclusions drawn by the High Court---Appeal against acquittal was dismissed in circumstances.

Nemo for Appellants (in Criminal Appeal No. 52-L of 2013).

Ch. Muhammad Mustafa, DPG for Appellants (in Criminal Appeal No. 53-L of 2013).

Nemo for Respondents (in both cases).

2019 S C M R 1217

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Sajjad Ali Shah and Syed Manzoor Ali Shah, JJ

KAMRAN SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 23-P of 2016 and Criminal Petition No. 192 of 2013, decided on 21st February, 2019.

(Against the judgment dated 03.04.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 450 of 2010)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Narcotic recovered from secret cavities of a vehicle---Requirement to establish conscious possession of contraband substance---Scope---Narcotic substance recovered in the present case had been recovered from some secret cavities of a vehicle in which the present accused persons were traveling at the relevant time as passengers and the said vehicle was being driven by the co-convict---In such circumstances, it was incumbent upon the prosecution to establish conscious possession of the contraband substance on the part of the accused persons but no evidence worth its name had been brought on the record in such respect---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge---Appeal was allowed.

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Safe custody of contraband substance by police---Scope---Case record showed that safe custody of the recovered substance at the local Police Station had not been established by the prosecution during the trial---Moharrir had been produced by the prosecution before the Trial Court but he had said nothing about receipt of the case-property or its safe custody by him---Where safe custody of the recovered substance was not established by the prosecution it could not be held that the prosecution had succeeded in establishing its case against an accused person---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeal was allowed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Safe transmission of samples from the police to the Chemical Examiner---Scope---Record showed that safe transmission of the samples of the recovered substance from the local Police Station to the office of the Chemical Examiner had not been proved by the prosecution---Samples of the recovered substance had been delivered at the office of the Chemical Examiner by a Constable, who was not produced by the prosecution before the Trial Court---Where safe transmission of the samples of the recovered substance was not established by the prosecution it could not be held that the prosecution had succeeded in establishing its case against an accused person---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge by extending the benefit of doubt to them.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

Muhammad Amjad Iqbal Qureshi, Advocate Supreme Court for Appellant No.1.

Noor Alam Khan, Advocate Supreme Court for Appellants Nos.2 and 3 (in Criminal Appeal No. 23-P of 2016).

Malik Nasrum Minallah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Cr. P. 192 of 2013).

Zahir Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa (in both cases).

2019 S C M R 1220

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SADI AHMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 107-L of 2017, decided on 23rd May, 2019.

(On appeal from the judgment dated 28.4.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1668 of 2010 and M.R. No. 333 of 2010)

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Reappraisal of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused hired a cab driven by the deceased; that they robbed and killed the deceased and while they were on their way to dispose of the vehicle, they met an accident wherein a woman died; that the accused became unconscious after the accident, while co-accused fled from the scene---Prosecution relied upon evidence of last seen and a confessional statement by one of the accused, beside certain recoveries, to drive home the charge---Held, that according to the crime report, three prosecution witnesses saw the deceased departing with the accused persons---In the totality of circumstances, statements of the complainant, and prosecution witnesses, there was little evidence to safely frame the co-accused with the crime as he was never exposed to the witnesses in the identification test---Prosecution's case was that accused impersonated himself when he met an accident while trying to dispose of the stolen vehicle and his real identity was established subsequent thereto---No one had been produced to establish identity of accused in injured condition, when apprehended after the accident---Nothing was available on the record to infer that a woman died in the accident, so what was left in the field was deficient last scene evidence and confessional statement of co-accused , recorded by the Trial Court--- Last seen evidence was outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring---Prosecution had not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence against the accused and co-accused, they were acquitted by extending them the benefit of doubt---Appeal was allowed accordingly.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Reappraisal of evidence---Cause of death---Weapons, recovery of---According to the autopsy report, asphyxia was the cause of death, therefore recoveries of weapons on the pointation of accused did not advance prosecution case---Accused and co-accused were acquitted by extending them the benefit of doubt---Appeal was allowed accordingly.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Reappraisal of evidence---Confessional statement of accused before Trial Court, reliance upon---Confessional statement of accused was not in line with prosecution case set up in the crime report, and was so diametrically different that one could not be accepted without exclusion of other and vice versa---Said confessional statement was exculpatory in nature as the accused was reticent about his individual role and liability in the crime---According to accused, the deceased was blind folded and thrown in a sugarcane field with his hands tied with a rope, whereas as per autopsy report cause of death was asphyxia---Motive for the murder during robbery was far from clear, thus confessional statement of accused was certainly not a truthful account of events leading to deceased's death---When confronted during his examination under S. 342, Cr.P.C., the accused denied to have confessed to his guilt---Prosecution had not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence against the accused and co-accused, they were acquitted by extending them the benefit of doubt---Appeal was allowed accordingly.

Rana Liaqat Ali Khan, Advocate Supreme Court along with Ms. Nighat Saeed Mughal, Advocate Supreme Court for Appellants.

Complainant in person.

Ch. Mustafa, Deputy Prosecutor-General, Punjab for the State.

2019 S C M R 1224

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

IFTIKHAR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 122-L of 2017, decided on 16th May, 2019.

(On appeal from the judgment dated 10.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 365-J of 2012 and CSR No. 27-T of 2012)

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)--- Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., acts of terrorism---Reappraisal of evidence---Prosecution's case was primarily structured upon the statement of witness who last saw the deceased-victim in company of accused---Said witness shared information with the complainant on the following day and it was on this disclosure that the accused was framed as a suspect---Evidence of said witness was corroborated with the statement of another witness, who saw the accused dumping the corpse---Both said witnesses identified the accused under magisterial supervision---Defence had not been able to impeach credibility of said witnesses, and they had no axe to grind against the accused---Evidence of the last seen was well within the remit of proximity of time and space---Recovery of articles belonging to the victim on the pointation of accused, including school bag and stationery items, constituted another strong piece of evidence against the accused---Recovery of SIM (Subscriber Identity Module), cell phone and generation of calls therefrom, received by the complainant, was confirmed by cell phone data, which presented a strong piece of evidence, immune from foreign interference---Investigative process and conclusion thereof inexorably pointed towards the accused's culpability---Accused had been rightly convicted by the courts below.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., acts of terrorism---Reappraisal of evidence---Sentence, reduction in---No DNA identification of swabs carried out---Prosecution's failure to carry out DNA profile generation of rectal and vaginal swabs was a most grievous lapse that in retrospect made out a case to revisit the sentence of accused---Death penalty awarded to accused on all counts was altered to imprisonment for life on each count---Appeal was allowed accordingly.

Ch. Nisar Ahmed Kausar, Advocate Supreme Court for Appellant.

Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for the Complainant.

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

2019 S C M R 1227

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

The STATE---Appellant

Versus

IMRAN NAZIR and another---Respondents

Criminal Appeals Nos. 17-P and 18-P of 2013, decided on 29th April, 2019.

(Against the judgment dated 24.7.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.599 of 2006)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Appeal against acquittal---Accused and co-accused were alleged to be carrying 2800 kilograms of charas in a vehicle---Trial Court convicted them under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life, whereas the vehicle was confiscated in favour of the State---High Court acquitted the accused and co-accused on the ground that the prosecution witnesses failed to point out as to who was driving the vehicle when Anti-Narcotics Force contingent intercepted them---Held, that in the presence of two individuals (accused and co-accused) in the cabin it was incumbent upon the witnesses to unambiguously point out the person on the steering wheel in order to establish conscious possession of the seized narcotic---In the face of wavering positions taken by the prosecution itself, accused and co-accused could not be denied the benefit of the doubt---Appeals against acquittal of accused and co-accused were dismissed, however the order for forfeiture of vehicle impounded was kept intact.

Muhammad Tariq Khan, Advocate Supreme Court for Appellant.

Nemo for Respondent.

2019 S C M R 1284

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through ANF Peshawar---Appellant

Versus

OLUFEMI---Respondent

Criminal Appeal No. 16-P of 2013, decided on 29th April, 2019.

(Against the judgment dated 17.6.2004 passed by Peshawar High Court, Abbottabad Bench passed in Criminal Appeal No. 198 of 2003)

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

----S. 9(c)--- Criminal Procedure Code (V of 1898), S. 516-A---Reappraisal of evidence---Destruction of recovered narcotic---Accused, a foreign national, was found with 25 kilograms of heroin---Trial Court convicted accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life---High Court proceeded to acquit the accused on the ground that contraband allegedly recovered was destroyed in violation of procedure provided under S. 516-A, Cr.P.C.---Plea of prosecution that destruction of the contraband under magisterial supervision ruled out possibility of any foul play and thus strict non-compliance with the suggested procedure under S. 516-A, Cr.P.C. would not vitiate culpability of accused---Held, that the accused had already left Pakistan (after his acquittal) and examining the vires of the arguments of the prosecution in absence of the accused would be merely an academic discussion without consequential impact---In the event of reversal of the impugned view of the High Court, a cumbersome procedure of accused's extradition would be far from convenient---Much water had flown under the bridge, and the contraband had since been destroyed---Appeal against acquittal of accused was dismissed in circumstances.

Muhammad Tariq Khan, Advocate Supreme Court for Appellant.

Nemo for Respondent.

2019 S C M R 1285

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD FAISAL ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 157-L of 2017, decided on 21st May, 2019.

(On appeal from the judgment dated 27.11.2013 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 164-J of 2008 and C.S.R. No. 69-T of 2007)

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

----Ss. 302(b), 324 & 392---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, act of terrorism---Reappraisal of evidence---Previous enmity---Plea of accused that he had been implicated in the crime on account of previous enmity---Held, that the accused had not been named in the FIR, an opportune course to engage him in the crime, if the complainant at all, had an axe to grind---Test identification parade, under magisterial supervision, was another piece of evidence, pointing towards the culpability of the accused---Accused had been rightly convicted by the Trial Court, which finding was upheld by the High Court---Appeal was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 392---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7(a)---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, act of "terrorism"---Reappraisal of evidence---Sentence, reduction in---Robbery with murder in a shop not an act of "terrorism"---Predominant purpose behind the crime was robbery at gunpoint, which had no nexus with the situations enumerated under S. 6 of the Anti-Terrorism Act, 1997---Occurrence took place inside a shop impact whereof though grievously devastating for the witnesses, however could not be said to have spilled over to the public at large---In such peculiar facts and circumstances of the case, conviction of accused under S. 7 of the Anti-Terrorism Act, 1997, was not sustainable and set aside accordingly---Consequently, penalty of death awarded to the accused was altered into imprisonment for life---Appeal was dismissed accordingly.

Tayyab Ramzan Ch., Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Appellant.

Ch. Mustafa, Deputy Prosecutor-General, Punjab along with Complainant M. Ashraf for the State.

2019 S C M R 1288

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Regional Director ANF Peshawar---Appellant

Versus

SOHAIL KHAN---Respondent

Criminal Appeal No. 13-P of 2014, decided on 30th April, 2019.

(On appeal from the judgment dated 12.12.2013 of the Peshawar High Court, Peshawar passed in Cr. Appeal No. 482-P of 2013)

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

----S. 9(c)--- Possession of narcotic--- Reappraisal of evidence---Sentence, enhancement of---Mandatory life sentence---Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight---Accused was found in possession of 11.4 grams of charas garda---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to five years imprisonment---High Court maintained sentence awarded by Trial Court and declined to enhance accused's sentence to imprisonment for life as mandated by law---Plea of prosecution that the proviso to S. 9(c) of the Control of Narcotic Substances Act, 1997 mandatorily provided punishment of imprisonment for life and this left the High Court with no option but to enhance accused's sentence to imprisonment for life---Held, that the accused had been found guilty of possessing contraband, in excess of ten kilograms---Evidence of recovery and forensic report inexorably pointed towards culpability of the accused---In such circumstances accused was liable to be sentenced to imprisonment for life---Magnanimity shown by the Courts below was outside the remit of law---Impugned judgments of courts below to the extent of quantum of sentence were set aside, and accused was sentenced to imprisonment for life---Appeal was disposed off.

Muhammad Tariq Shah, Special Prosecutor, ANF for Appellant.

Nemo for Respondent.

2019 S C M R 1290

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

NADEEM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 103 of 2019, decided on 11th July, 2019.

(Against the judgment dated 10.03.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 302 of 2009)

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

----Ss. 302(b), 324, 353, 109 & 427---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21-I---Explosive Substances Act (VI of 1908), S. 3---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, mischief causing damage to the amount of fifty rupees, acts of terrorism, causing explosion likely to endanger life or property---Reappraisal of evidence---Benefit of doubt---Accused had not been nominated in the FIR in any capacity whatsoever and it was at some subsequent stage that he was implicated in the present case as an accomplice of his co-accused---During the trial the prosecution had produced some pieces of circumstantial evidence only as there was no direct evidence available against the accused---First piece of evidence produced by the prosecution vis-à-vis the accused was the statement made by a witness who had claimed that the accused and some others were introduced to him by a co-accused during an assemblage but admittedly no specific utterance on that occasion was attributed to the accused by the said witness---Second piece of evidence against the accused was again through the statement made by the said witness who had claimed that on the date of the present occurrence he had visited the computer shop of the accused whereat he had allegedly seen co-accused persons giving some suicide jackets to unknown persons, who were later taken away to cause a suicide blast---Said witness had not claimed in his statement before the Trial Court that the accused was present at the shop when the jackets were handed over by the co-accused persons or that he was involved in providing the jackets and taking the unknown culprits to the scene of the suicide blast---Prosecution also did not establish that the shop in issue actually belonged to the accused or was in his possession in any other capacity---Third piece of evidence produced by the prosecution against the accused was that he was arrested from a shop and from that shop some explosive substance, etc. had been recovered---In such respect no memorandum of recovery vis-à-vis recovery of the explosive substance, etc. had been brought on the record of the case and it had never been proved by the prosecution that the accused had any connection with the said shop---Next piece of evidence produced by the prosecution was that the registration book relevant to one of the motorcycles used in the suicide blast was recovered from the accused's possession but case record showed that no memorandum of recovery regarding such registration book was brought on the record throughout the trial---Furthermore one of the investigating officers of the case had stated before the trial court that during the investigation no connection between the accused and his co-accused had been established and such statement was fortified by the statement made by another investigating officer who had conceded before the Trial Court that during the investigation nothing had been recovered from the accused's possession---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed, the convictions and sentences of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

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

----S. 21-H--- Confessional statement of accused recorded under S. 21-H of the Anti-Terrorism Act, 1997---Admissibility in evidence---Confession before the police was inadmissible in evidence in normal cases but in cases of terrorism, S. 21-H of the Anti-Terrorism Act, 1997 had made such a confession before the police conditionally admissible---Condition placed by the said section upon admissibility of a confession before the police was that there must be some other evidence, including circumstantial evidence, which must reasonably connect the accused person with the alleged offence before such confession was accepted by a court worthy of any consideration.

Ms. Aisha Tasneem, Advocate Supreme Court for Appellant.

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

2019 S C M R 1295

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

STATE through Director ANF Peshawar---Appellant

Versus

MUHAMMAD RAMZAN and others---Respondents

Criminal Appeals Nos. 13-P of 2009, 37-P, 38-P of 2011 and 16-P of 2012, decided on 29th April, 2019.

(Against the judgment dated 15.6.2007, 30.5.2011 and 19.10.2011 of the Peshawar High Court, Peshawar passed in Cr. A. No.666/2004, 602, 614 and 351 of 2009)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Sentence, enhancement of---Mandatory life sentence---Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight---Each accused person was found in possession of narcotic in excess of 10 kilograms---Trial Court convicted them under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment---High Court reduced their sentences to ten years imprisonment---Plea of prosecution that the proviso to S. 9(c) of the Control of Narcotic Substances Act, 1997 mandatorily provided punishment of imprisonment for life in cases where quantity of contraband exceeded ten kilograms---Held, that the command of law escaped notice of the High Court, thus, there was no occasion for the reduction of sentences of accused persons---Impugned judgments of High Court were set-aside and life sentences imposed on accused persons by the Trial Court were restored---Appeals were allowed accordingly.

(b) Criminal trial---

----Absconsondment of accused---Case to be decided on merits in absence of accused---Accused had to be afforded a reasonable opportunity of hearing so as to vindicate his position more so in situations involving corporal consequences, however a party could not avail such opportunity to a point of time of its own choice---Once the absence/abscondment of accused was found to be a calculated move to obstruct the judicial process, a case could be decided on its own merits.

Chan Shah v. The Crown PLD 1956 FC 43; Gul Hassan and another v. The State PLD 1969 SC 89 and Ikramullah and others v. The State 2015 SCMR 1002 ref.

Muhammad Tariq Khan, Advocate Supreme Court for ANF/State.

Nemo for Respondents.

2019 S C M R 1297

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

WAZIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 21-P of 2010, decided on 29th April, 2019.

(Against the judgment dated 18.-6.2008 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.425/2005 with Murder Reference No. 40 of 2005)

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

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., act of terrorism---Reappraisal of evidence---Case based on confessional statement of accused---Once prosecution opted to rely upon a confessional statement of an accused to his detriment it must come forward with the disclosure above all suspicions and taints---Occurrence took place in February 2002, whereas the appellant statedly made his confessional statement months later on 27-6-2002---Confessional statement spreading over four hand written pages was strangely elaborate and exhaustive; it was more of an elaborative statement to cater for the needs of the prosecution than a declaration of guilt by a remorseful or repentant offender---Argument that such a detailed narrative could neither be voluntary nor spontaneous was not entirely without substance---Confessional statement of accused could not be favourably received without being imprudent for another reason; it had been disbelieved qua eight co-accused persons---Furthermore findings recorded by the medical officer with regard to cause of death were not in line with the details purportedly furnished by the accused--- Prosecution case against the appellant was not free from doubt and thus it would be un-safe to maintain his conviction---Appeal was allowed and accused was acquitted of the charge.

(b) Criminal trial---

----Confessional statement of accused, reliance upon--- Scope---Confessional statement had to be received holistically without quantification; once it was found unreliable qua majority of the co-accused persons notwithstanding different roles it could not furnish basis for accused's conviction as well.

Astaghfirullah, Advocate Supreme Court for Appellant.

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

2019 S C M R 1300

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Mst. RAZIA SULTANA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 97-L of 2017, decided on 14th May, 2019.

(On appeal from the judgment of Lahore High Court, Division Bench dated 01.04.2014 passed in Criminal A. No. 1825 of 2010)

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

----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Government analyst---Safe custody and transmission of samples of the alleged drug from the police to the Chemical Examiner---In cases where the chain of custody was broken, the report of the Chemical Examiner lost its reliability making it unsafe to support conviction---In the present case the sample of narcotic was dispatched to the Government Analyst for Chemical Examination through an officer of the Anti-Narcotics Force, but the said officer was not produced to prove safe transmission of the sample from the police to the Chemical Examiner---Chain of custody thus stood compromised---Resultantly, it would be unsafe to rely on the report of the Chemical Examiner---Conviction and sentence of accused was set aside in circumstances---Appeal was allowed accordingly.

State v. Imam Bakhsh 2018 SCMR 2039 ref.

Naveed Ahmed Khawaja, Advocate Supreme Court for Appellant.

Zafar Iqbal Chohan, Special Prosecutor ANF for the State.

2019 S C M R 1302

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Mushir Alam and Maqbool Baqar, JJ

Mst. MUKHTAR MAI---Petitioners

Versus

ABDUL KHALIQ and others---Respondents

Criminal Review Petitions Nos. 15 to 18 of 2011, decided on 13th June, 2019.

(For review of common Judgment dated 21.04.2011 passed by this Court in Criminal Appeal Nos. 167 to 170 of 2005)

(a) Constitution of Pakistan---

----Art. 188---Review of judgments or order by the Supreme Court---Scope---Contentions of petitioner requiring reappraisal of the entire evidence---Such course of action was not permissible under the law for that while exercising review jurisdiction the reviewing Court could not go into the merits of the case and take altogether a different view---While hearing a review petition the Supreme Court did not sit as a court of appeal over the judgment under review---Court hearing review petition could not re-appraise the evidence to come to a conclusion different from the one adopted by the Court in the judgment under review.

(b) Constitution of Pakistan---

----Art. 188---Review of judgment or order by the Supreme Court---Scope---Power of review stemmed from the possibility of judicial fallibility and was exercised in exceptional circumstances, in aid of justice, to avoid gross injustice and in view of the necessity to avoid perpetuating such illegality, which could not be allowed to remain on the record---Review was not synonymous with an appeal and did not include rehearing of the matter in issue nor would it be warranted merely because the conclusion drawn was wrong or erroneous---Review was limited to eventualities where something obvious had been overlooked or where there was a glaring omission or patent mistake of fact or law, which was self-evident, manifest and floating on the surface, materially affecting the outcome of the adjudicatory process.

Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others PLD 2016 SC 229 ref.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Shah, Advocate Supreme Court for Petitioners (in all cases).

Malik Muhammad Saleem, Advocate Supreme Court for Respondents (in all cases).

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

2019 S C M R 1306

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MANSAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 80-L of 2017, decided on 10th May, 2019.

(On appeal from the judgment dated 19.02.2014 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 142-J/ 2010/BWP and Murder Reference No. 14 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Conflict between ocular account and medical evidence---According to the complainant and another witness, the accused made two successive shots on the deceased, first landing on the right arm, while second hitting the back---Both said witnesses were in a diametrical conflict with the position taken in the crime report wherein the accused was assigned solitary shot landing on the deceased's chest---Such confusion was further compounded by the statement of the medical officer who noted that there was an entry wound on the posterior aspect of left shoulder; that the bullet exited from the chest valve; and that the second fire shot was on the right upper arm with its corresponding exit---Such description was not in line with the prosecution case that the accused targeted the chest as the wound noted by the medical officer was an exit wound---Furthermore with somewhat trivial roles acquittal of eight co-accused persons on the same set of evidence was yet another factor casting doubt over the prosecution case---Prosecution case was fraught with doubts, thus it was unsafe to maintain the conviction of accused---Appeal was allowed, and the accused was acquitted of the charge.

Shahzad Hassan Sheikh, Advocate Supreme Court (State Counsel) for Appellant.

Nasib Masih, Advocate Supreme Court for the Complainant.

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

2019 S C M R 1308

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

NAZEER KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 140-P of 2014, decided on 10th June, 2019.

(Against the judgment dated 15.10.2014 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.207 of 2011)

Penal Code (XLV of 1860)---

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Dying declaration, reliance on---Scope---Though the deceased was wounded critically, he was found by the medical officer to be well within the capacity to share details of the incident---Narrative of the deceased was straightforward and confidence inspiring besides being in harmony with the ocular account and medical evidence---Accused remained absent from law sans any justification---Given accused's advance age, he had already been dealt with leniently in the matter of his sentence---Petition for leave to appeal was dismissed and leave was refused.

M. Amjad Iqbal, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court for the State.

2019 S C M R 1309

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

SALEEM ZADA and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 67-P and 68-P of 2014, decided on 10th June, 2019.

(Against the judgment dated 29.05.2014 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Sawat in Criminal Appeal No.29-A of 2012)

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Fate of the prosecution case was primarily hinged upon the statement of the injured witness and the driver of the public vehicle wherein the attack took place---Investigative conclusions and medical evidence were in line with the statement of the injured witness---Durations given in the crime report as well as by the doctor coincided with the time of occurrence---Case was registered with promptitude, and previous bad blood/enmity had not seriously been contested---Statement of the injured witness, the sole eye-witness, was confidence inspiring---Being injured, presence of injured witness at the scene of occurrence could not be doubted---Driver of the vehicle, though reticent in his deposition, nonetheless, had unambiguously confirmed circumstances where under the occurrence took place---Cross examination on both the injured witness and the driver remained inconsequential and as such convictions and sentences awarded to the accused persons consequent thereupon did not call for interference---Petitions for leave to appeal were dismissed and leave was refused.

Sahibzada Asadullah, Advocate Supreme Court for Petitioners (in both cases).

Zia ur Rehman Khan, Advocate Supreme Court for Respondents (in both cases).

2019 S C M R 1311

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Maqbool Baqar and Munib Akhtar, JJ

FEDERAL BOARD OF REVENUE, ISLAMABAD---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No. 1515 of 2013, decided on 6th May, 2019.

(On appeal from the judgment/order dated 25.10.2013 of the High Court of Sindh, Karachi passed in Constitutional Petition D-2342 of 2013)

Legislation, vires of---

----Fiscal statute enacted by Parliament---To declare a statute promulgated by Parliament under the Constitution to be void was a very serious matter---Such declaration may be given on the ground of incompetence of Parliament to enact the law or for a violation of Fundamental Rights by the enacted law---Declaration given solely on the ground of incorrect arithmetical calculation, lack of rational basis or reasonableness of the statute was devoid of legal foundation---Such grounds, if at all, were criteria for testing the validity of executive action and not legislative measures.

Babar Bilal, Advocate Supreme Court and Naeem Hassan, Secy. Legal for Appellant.

Ex parte for Respondents Nos. 1 - 2.

Tariq Aziz, Advocate-on-Record/Advocate Supreme Court for Respondent No.3.

Nemo for Respondent No.4.

2019 S C M R 1314

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD KAMRAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 521 of 2017, decided on 11th June, 2019.

(Against the judgment dated 16.5.2017 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.799 of 2016)

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 140---Possession of narcotic--- Reappraisal of evidence--- Description of narcotic, discrepancy in---Alleged discrepancy in the description of the contraband recovered, between the complaint and statements of the witnesses went unchallenged during the trial and as such the accused could not claim any benefit thereof in the absence of confrontation within the contemplation of Art. 140 of the Qanun-e-Shahadat, 1984---Jail petition was dismissed accordingly.

Malik Altaf Hussain, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, DPG for the State.

2019 S C M R 1315

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, and Qazi Muhammad Amin Ahmed, JJ

ZULFIQAR ALI---Appellant

Versus

IMTIAZ and others---Respondents

Criminal Appeal No. 9-L of 2016, decided on 3rd June, 2019.

(On appeal from the judgment dated 20.06.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.2012 of 2011)

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

----Ss. 364, 302 & 34---Kidnapping or abducting in order to murder, qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Unwitnessed occurrence---According to the witnesses, the deceased was fatally shot within their view, whereupon they shifted him to the hospital in an injured condition---According to the autopsy report, deceased was brought to the hospital in dead condition by a police constable and there was nothing on the record to even obliquely suggest witnesses' presence in the hospital or the deceased being in an injured condition---Prosecution claimed that two strangers, not related to the accused or the witnesses, also saw the deceased lying critically injured at a canal bank and they also helped escort the deceased to the hospital---One of the said strangers was cited as a witness, but was subsequently given up by the complainant---Such aspects of the present case led the High Court to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon---View taken by the High Court was a possible view, structured on evidence available on the record and as such not open to any legitimate exception---Appeal against acquittal was dismissed accordingly.

(b) Appeal against acquittal---

----Scope---Acquittal once granted could not be recalled merely on the possibility of a contra view---Unless, the impugned view was found on the fringes of impossibility, resulting into miscarriage of justice, freedom could not be recalled.

Maqbool Hussain Sh., Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Appellant.

Khalid Masood Sandhu, Advocate Supreme Court for Respondents.

Ch. Muhammad Mustafa, Deputy Prosecutor-General, Punjab for the State.

2019 S C M R 1317

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

KHURRAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 137-L of 2017, decided on 15th May, 2019.

(On appeal from the judgment dated 25.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1935 of 2012 and Capital Sentence Reference No. 39-T of 2012)

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

----Ss. 302(b), 365-A & 201---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence---Reappraisal of evidence---Last seen evidence---Two alleged witnesses, with one voice, claimed to have last seen the complainant's son/deceased in accused's company---Said witnesses gave the date of encounter, while conspicuously omitting the point of time---Said witnesses were once again together on a subsequent date when they visited the complainant and upon inquiry they shared information about seeing the deceased with the accused---Such story, which captured all the details and was narrated at a thoroughfare in a crowded city, at an unspecified point of time was hard to buy---Reason for presence of said witnesses with the complainant was vague and per chance---Such script of prosecution was far from being plausible---Acquittal of the identically placed co-accused added to the doubts regarding statement of said witnesses---Appeal was allowed in circumstances and accused was acquitted of the charge.

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

----Ss. 302(b), 365-A & 201---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence---Reappraisal of evidence---Witness summoned in midst of trial---Scope---Dead body was recovered from a house, statedly owned by witness "G", who was summoned by Trial Court to establish that the house was rented to the accused and that it was the same place wherefrom the dead body was recovered---Such exercise was taken in the midst of the trial---While a Court had ample power to send for witnesses for just decision of the case, nonetheless, power of such amplitude must be exercised with circumspection without disturbing the adversarial balance of the trial---No statement of witness "G" was recorded during the investigation---Similarly there was no proof of ownership or tenancy as admitted by said witness---Such a sudden move by the trial court to summon witness "G" and reliance thereon to the detriment of the accused, could not be viewed as conscionable---Another reason to discard the statement of said witness was that according to him the house was jointly occupied by the accused including those co-accused acquitted form the charge---Advance stage of putrefaction of the dead body, with elimination of facial features, without DNA analysis, represented a real issue regarding the identity of the corpse---Moreover said corpse was recovered in pursuance of a recorded joint disclosure of accused and co-accused, , one by one, but in the same session---Appeal was allowed in circumstances and accused was acquitted of the charge.

Sher Afghan Asadi, Advocate Supreme Court for Appellant.

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

2019 S C M R 1321

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Faisal Arab and Yahya Afridi, JJ

The STATE and others---Appellants/Petitioners

Versus

MUHAMMAD KALEEM BHATTI and others---Respondents

Criminal Appeals Nos. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 and Criminal Miscellaneous Application No. 554 of 2018 in Criminal Appeals Nos.161 to 164 of 2010

(Against the judgment dated 02.03.2010, 01.06.2011, 11.09.2017 and 23.01.2013 passed by the High Court of Balochistan, Quetta in Criminal Ehtesab Appeals Nos. 01 of 2013, 04 of 2006, 04 of 2007, 08 of 2012 and 07 of 2009, Civil Petitions Nos. 536 of 2006, 201 of 2008 and Contempt Application No. 11 of 2010 in Criminal Ehtesab Appeal No. 07 of 2009)

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

----S. 70---Criminal Procedure Code (V of 1898), S. 386---Fine, imposition of---Sentence of imprisonment in default of payment of fine---Scope---Sentence of imprisonment in default of payment of fine was not a substitute for payment of fine but as a matter of fact the said sentence of imprisonment was a punishment for non-payment of fine---Even if such sentence of imprisonment in default of payment of fine was undergone by a convict the amount of fine was still to be recovered from him.

Ahmad Ali Siddiqui v. Sargodha Central Cooperative Bank Limited and another 1989 SCMR 824 ref.

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

----S. 33-E---Penal Code (XLV of 1860), S. 70---Fine imposed under the National Accountability Ordinance, 1999---Recovery of---Question as to whether by virtue of the provisions of S. 70, P.P.C. the amount of fine imposed upon a convict by the Accountability Court under the National Accountability Ordinance, 1999 could be recovered after a period of six years after passage of the sentence or fine---Held, that in S. 33-E of the National Accountability Ordinance, 1999, it had categorically been provided that a fine imposed upon a convict was to be recovered by way of arrears of land revenue and the said provision was not controlled by or subject to the provisions of S. 70, P.P.C.---In the matter of recovery of fine in cases under the National Accountability Ordinance, 1999 the relevant provisions were those of S. 33-E of the National Accountability Ordinance, 1999 and not those of S. 70, P.P.C.

Haider Ali, Special Prosecutor-General, Accountability for Appellants (in Cr. As. 160, 161, 162, 163 and 164 of 2010).

Imran-ul-Haq, Special Prosecutor-General, Accountability for Appellants (in Cr. A. 38 of 2018).

Hadi Shakeel Ahmed, Senior Advocate Supreme Court for Appellants (in Cr. A. 235 of 2014).

Petitioner/Applicant in person (in Cr. P. 27-Q of 2011 and Cr. M.A. 554 of 2018).

Haider Ali, Special Prosecutor-General, Accountability for Respondents (in Cr. P. 27-Q of 2011 and Cr. M.A. 554 of 2018).

Respondent in person (in Cr. A. 161 of 2010).

Jehanzeb Khan Jadoon, Advocate Supreme Court for Respondents (in Cr. As. 162 and 164 of 2010).

Nemo for Respondents (in Cr. As. 163 and 38 of 2010).

2019 S C M R 1325

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MANZOOR HUSSAIN alias BABO and another---Appellant/Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 106-L of 2017 and Criminal Petition No. 981-L of 2017, decided on 17th May, 2019.

(On appeal from the judgment dated 13.11.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 2089 of 2010 and Murder Reference No. 511 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Mechanics of weapon contradicting plea of accidental firing---Plea that a during aerial firing at a wedding a stuck bullet went off accidently killing the deceased---Held, that death by a .30 caliber bullet was not in dispute---Plea of an accidental shot, was not very plausible---Mechanics of .30 caliber pistol, a semi-automatic weapon, rested upon a percussion cap with a primer, when detonated by the hammer of firing pin ignited explosive propelling the bullet in high velocity to leave the muzzle---In such process next bullet from the magazine automatically entered the chamber by the energy released by the preceding fire shot---Bullet would possibly get stuck in the chamber if the hammer failed to ignite the explosive; a defective primer made the cartridge dead if all other components were in good condition---Second strike by the hammer was not possible without manual intervention and that too would seldom ignite the charge as the fixed length of firing pin would not go farther than the first strike, therefore, it was difficult to contemplate a situation where deceased would naively stand within the approximate distance of four feet to receive a bullet above the nipple, through an accidental shot---Bullet trajectory was yet another factor to contradict the story of accidental shot---If at all someone was attempting to retrieve the defective bullet he had no occasion to hold the gun in a straight position---From point of entry the bullet traversed through right pleura and lung landing on left side of the chest beneath 4/5th intercostal back, a course that suggested assailant and the deceased standing face to face---Imprisonment for life awarded to the accused by the High Court was maintained in circumstances---Petition for leave to appeal was dismissed and leave was refused.

Akhtar Hussain Bhatti, Advocate Supreme Court for Appellant (in Criminal Appeal No. 106-L of 2017).

Salman Safdar, Advocate Supreme Court for Petitioner (in Criminal Petition No. 981-L of 2017).

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

2019 S C M R 1327

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

NOOR AHMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 91-L of 2017, decided on 17th May, 2019.

(On appeal from the judgment dated 23.04.2019 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 140 of 2010 and Murder Reference No. 12 of 2010)

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Reappraisal of evidence---Benefit of doubt---Complainant party alleged that the accused murdered their sister on her refusal to give her hand in marriage to the accused---Accused contended that the family of deceased itself was responsible for her murder due to her ill virtues and her legated property---Held, that prosecution claimed that deceased was a virgin, however, autopsy findings suggested a carnal encounter not long before she met homicidal death---In such circumstances it was difficult to dismiss the contentions raised by the accused in his defence---Similarly, going by the motive alleged in the crime report, the family members who rescinded the proposal were more apt targets than the deceased---By extending the benefit of the doubt to the accused, appeal was allowed, and his conviction and sentence was set aside.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Reappraisal of evidence---Autopsy report---Rigor mortis---Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m.---Development of complete rigor mortis on the body of the deceased young lady in hot weather, belied point of time of assault given in the crime report---Appeal was allowed, and conviction and sentence awarded to accused were set aside.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Reappraisal of evidence---Recovery of weapon and crime empties---Dispatch of casing/crime empty for forensic analysis, a day before accused's arrest was a suspect circumstance---Appeal was allowed, and conviction and sentence awarded to accused were set aside.

Mian Muhammad Tayyab, Advocate Supreme Court for Appellant.

Naveed Ahmad Khawaja, Advocate Supreme Court for the Complainant.

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

2019 S C M R 1330

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD AZAD alias JAVAID alias JODI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 158-L of 2017, decided on 22nd May, 2019.

(On appeal from the judgment dated 09.04.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 81-J of 2013 and C.S.R. No. 5-T of 2013)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., acts of terrorism---Reappraisal of evidence---Disclosure by accused on the basis of his exclusive knowledge led to the discovery of the corpse of the abducted-minor---Given the briefest timeframe, to the exclusion of any other hypothesis, it could be safely inferred, that accused alone knew what befell upon the child and where he was dumped---Cell phone data confirmed conversation between the accused and the complainant, and there was hardly any time or occasion for the family of victim to concoct or cook up a story on suspicions or consultations---Investigative conclusions also pointed towards the accused---Complainant and his brother, with no axe to grind, were cross examined at length, but no discrepancies were found in their statements---No reason existed to suspect accused's identity or entertain theory of substitution---Accused's guilt was proved to the hilt on the basis of chain of circumstances, well synchronized with one another and intrinsically confidence inspiring---Accused had been rightly convicted and sentenced to death given the brutality inflicted upon the abducted-child---Appeal was dismissed accordingly.

Ms. Nighat Saeed Mughal, Advocate Supreme Court for Appellant.

Complainant in person.

Ch. Mustafa, Deputy Prosecutor-General, Punjab for the State.

2019 S C M R 1362

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD BILAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 104-L of 2017, decided on 15th May, 2019.

(On appeal from the judgment dated 12.01.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1119 of 2012 and Capital Sentence Reference No. 30-T of 2012)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Murder in a court premises---Deceased was alleged to have killed the accused's brother---During the trial of deceased, at one of the court hearings he was shot and killed by the accused while being escorted from court---Admitted facts were that there was previous bad blood between the parties in the aftermaths of murder of accused's brother at deceased's hands and that case was fixed before the Court on the fateful day are common grounds---Presence of eye-witnesses at the spot, including police officials and a co-accused of the case against the deceased, could not be doubted---All said witnesses were in unison on all the details of the occurrence, salient as well as collateral---Accused's arrest at the crime scene shortly after the occurrence with a .30 caliber pistol subsequently found wedded with two out of three casings secured from the spot went a long way to exclude hypothesis of his innocence---Cautious analysis of evidence on record irresistibly lead to the conclusion of accused's guilt---Conviction of accused under S. 302(b), P.P.C. and award of death sentence consequent thereupon was upheld---Appeal was dismissed in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Murder in a court premises---Question as to whether conviction and sentence under S. 7(a) of Anti-Terrorism Act, 1997 was justified---Deceased was alleged to have killed the accused's brother---During the trial of deceased, at one of the court hearings he was shot and killed by the accused while being escorted from court---Held, that conduct of the accused was certainly far from being benign; he choose a venue most guarded by law to settle his score, nonetheless, he was undoubtedly actuated to quench a personal vendetta---Every act of violence triggered fear and panic with collateral impact on the surroundings; but this by itself would not bring even the most violent act to fall within the mischief of "terrorism" as contemplated by the Anti-Terrorism Act, 1997---Accused's conviction and sentence under S. 7(a) of the Anti-Terrorism Act, 1997, was set aside, however his conviction under S. 302(b), P.P.C and award of death sentence consequent thereupon was upheld---Appeal was dismissed accordingly.

Amjad Ali and others v. The State PLD 2017 SC 661 and Farooq Ahmed v. State and another PLJ 2017 SC 408 ref.

Rai Bashir Ahmad, Advocate Supreme Court for Appellant.

Muhammad Irfan Malik, Advocate Supreme Court for Respondent No.2.

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

2019 S C M R 1365

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

AKHMAT SHER and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 76-L, 77-L and 78-L of 2017, decided on 4th July, 2019.

(On appeal from judgment dated 02.12.2013 of the Lahore High Court, Lahore passed in Criminal Appeal No. 650/2009, 78-J/2010, 2575/2010 and CSR No. 13-T/2009, 14-T/2010 and 72-T/2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused persons were convicted by the Trial Court for murdering two persons because of a dispute over plying of public vehicles---Details related by the witnesses were corroborated by investigative conclusions regarding the motive of the crime as well as autopsy reports---Witnesses were in a comfortable unison on all the salient aspects of the occurrence as well as details collateral therewith in the background of a dispute which was not unusual in transport business---Recoveries of weapon, though inconsequential on account of investigating officer's failure to collect casings from the spot for comparison, nonetheless, were consistent with the injuries inflicted upon the deceased---Absconsion of some of the accused persons was yet another circumstance favouring the prosecution--- Trial Court had rightly convicted the accused persons for murder.

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

----Ss. 6, 7(a) & 21-L---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Convictions under the Anti-Terrorism Act, 1997, setting aside of---Personal dispute/ vendetta---Special jurisdiction under the Anti-Terrorism Act, 1997 had been created to deal with situations enumerated in S. 6 thereof---Personal pursuits and vendettas, carried out through violence fell outside the ambit of S. 6 of the Anti-Terrorism Act, 1997---In the present case, both the deceased fell victim to a business rivalry and, thus, the accused persons were not actuated by the designs contemplated under the said Act, therefore, their convictions under Ss. 7(a) & 21-L of the Anti-Terrorism Act, 1997 and sentences consequent thereupon were set aside, whereas the remainder of their convictions as well as sentences were kept intact.

Malik Muhammad Suleman Awan, Advocate Supreme Court for Appellants (in Criminal Appeal No. 76-L of 2017).

Ijaz Ahmed Janjua, Advocate Supreme Court for Appellants (in Criminal Appeal No. 77-L of 2017).

Ms. Bushra Qamar, Advocate Supreme Court for Appellants (in Criminal Appeal No. 78-L of 2017).

Ch. Muhammad Mustafa, DPG for the State.

2019 S C M R 1368

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHARIF and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 160-L of 2017 and Criminal Petition No. 641-L of 2016, decided on 1st July, 2019.

(Against the judgment dated 28.9.2015 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1084 of 2013 and CSR No.16-T of 2013)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Accused and co-accused persons were convicted by an Anti-Terrorism Court for launching a murderous attack on a police party which resulted in the death of a police official---Held, that hot pursuit by the police contingent for the arrest of accused and co-accused persons in a case of homicide was a circumstance antedated in point of time, therefore, beyond doubt---Receipt of injuries by one of the accused, his arrest at the spot and admission in the hospital, under a police docket, were also circumstances hard to deny---In such backdrop, presence of police officials, for a purpose mandated by law, at the crime scene, stood fully established---Subsequent recoveries from accused and co-accused persons squarely corroborated the ocular account---Acquittal of one of the co-accused seemingly out of abundant caution, did not adversely reflect upon the case qua the other accused persons---Said co-accused was assigned a general role and in his case crime empties were dispatched subsequent to his arrest, which would not qualify to the required standard of proof so as to view presence of intention beyond reasonable doubt---Accused and co-accused persons had been rightly convicted by the Anti-Terrorism Court---Appeal was disposed of in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Reduction in quantum of sentence---Death sentence altered to imprisonment for life---Casings found wedded with the recovered gun were dispatched subsequent to the arrest of accused, a factor viewed by the High Court as a mitigating circumstance qua the co-accused---Consequently, penalty of death awarded to accused was also altered into imprisonment for life---Appeal was disposed of in circumstances.

Malik Ejaz Hussain Gorchha, Advocate Supreme Court for Appellants (in Criminal Appeal No. 160-L of 2017).

Malik Matee Ullah, Advocate Supreme Court for Petitioners (in Criminal Petition No. 641-L of 2016).

Ch. Muhammad Mustafa, DPG for the State.

2019 S C M R 1391

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

TARIQ ALI SHAH and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 298 and 299-L of 2017, decided on 24th June, 2019.

(Against the judgment dated 26.11.2014 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 1985 and 2098 of 2011 and C.S.R. No. 45-T/2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Accused was alleged to have murdered one of his rivals within the precincts of office of Superintendent of Police---Arch rivalry with string of criminal cases between the two sides was admitted---Arrest of accused from the office of Superintendent of Police did not find mention in the crime report---Prosecution's claim that a police official arrested the accused from first floor of the office had to be taken with a pinch of salt; according to his narrative, he first went to the hospital to draw up preliminary proceedings, a time intensive exercise, and thereafter upon his return apprehended the accused at the spot with a weapon---Question was as to why in a heavily guarded premises no one else attempted to arrest the accused---Acquittal of one of the co-accused by the High Court was yet another blow to the prosecution case; she was a lady constable, indicted for being privy to the crime and providing logistical support to the accused---Acquittal of said co-accused shook the very foundation of the prosecution case---Hypothesis of consultations and deliberations could not be ruled out due to the belated autopsy conducted a day after the incident---Injuries on the deceased mentioned in the autopsy report were incompatible/inconsistent with the weapon seized from the accused at the time of his arrest---Such fact cast away the hypothesis of accused's arrest soon after the occurrence alongside the weapon of offence---Witnesses did not appear to have come forward with the whole truth and given the past enmity between both sides, patent discrepancies could not be viewed as trivial, particularly after prosecution's failure qua three of the co-accused albeit with somewhat different roles---Accused was acquitted from the charge in circumstances.

Abid Saqi, Advocate Supreme Court for Appellants (in Criminal Appeal No. 298-L of 2017).

Naveed Ahmed Kh., Advocate Supreme Court for Appellants (in Criminal Appeal No. 299-L of 2017).

Ch. Muhammad Mustafa, DPG for the State.

Naveed Ahmed, Kh., Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No. 298-L of 2017).

2019 S C M R 1394

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

TARIQ SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 185-L of 2017, decided on 24th June, 2019.

(Against the judgment dated 17.2.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 72 of 2012 and CSR No. 4-T of 2012)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Investigative conclusions reinforced the hypothesis of a wider net and once such a possibility was reasonably contemplated, participation of each nominee would inherently be fraught with suspicion---Seizure of two types of empties during spot inspection unmistakably suggested number of assailants much less than mentioned in the crime report---Acquitted co-accused persons were inexorably placed in an identical position with the present accused persons---Witnesses were found unworthy of reliance, and there was nothing to improve upon their credence---Once rejected, evidence of prosecution's witnesses could not be pressed into service to sustain the charge---Prosecution's case failed on investigative and forensic sides, therefore, it would be unsafe to maintain the convictions without potential risk of error---By extending benefit of doubt, appeal was allowed, and the accused persons were acquitted from the charge.

Munir Ahmad Bhatti, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for Appellants.

Ch. Muhammad Mustafa, DPG for the State.

Naveed Ahmad Kh., Advocate Supreme Court for Respondent No.2.

2019 S C M R 1412

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SAFDAR BALOCH alias ALI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 67-L and 68-L of 2017, decided on 9th May, 2018.

(On appeal from the judgment dated 28.11.2013 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 148 and 202 of 2010 and CSR No. 3-T of 2010)

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

----Ss.365-A, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping for ransom, attempt to commit qatl-i-amd, common intention, act of terrorism---Reappraisal of evidence---Statement of the child-abductee, statedly of 7/8 years of age at the relevant time, certainly required a very cautious scrutiny; he was reticent on important details of the episode, relating to the present accused persons---Being of an impressionable age, and having experienced a kidnapping, the abductee's susceptibility to tuition could not be ruled out--- Argument that crime report was recorded after arrest of co-accused and the accused persons were named therein on the basis of information other than purportedly laid by the complainant was not entirely beside the mark---While the occurrence could not possibly be denied, nonetheless, nomination of the accused persons on complainant's knowledge was a circumstance fraught with doubts---Complainant claimed to have seen the accused persons in a marriage ceremony few days prior to the kidnapping---Crowded ceremony would provide little space/opportunity to the complainant to remember the faces and names of the participants and thus once the source of information about accused persons' participation in the crime was found suspect it would be unsafe to rely upon the testimony of a vulnerable witness/abductee alone, particularly when the accused persons were not arrested alongside the co-accused---Prosecution's case against the accused persons could not be viewed as beyond reasonable doubt and thus their conviction could not be maintained without potential risk of error---Appeals were allowed and accused persons were acquitted of the charge of murder.

(b) Criminal trial---

----Conviction---Grounds---Criminal liability was to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth.

Naseer-ud-Din Khan Nayyar, Advocate Supreme Court for Appellants (in Criminal Appeal No. 67-L of 2017).

Miss Najma Parveen, Advocate Supreme Court for Appellants (in Criminal Appeal No. 68-L of 2017).

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

2019 S C M R 1415

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ALAMGIR---Appellant

Versus

GUL ZAMAN and others---Respondents

Criminal Appeal No. 6-P of 2010, decided on 29th April, 2019.

(Against the judgment dated 14.5.2009 passed by Peshawar High Court, Peshawar in Cr. Revision No. 158 of 2002)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)--- Qatl-i-amd--- Reappraisal of evidence---Conviction under S. 302(b), P.P.C. converted into S. 302(c), P.P.C.---Sudden fight with no previous enmity---According to the prosecution's own case the occurrence took place in a sudden encounter with no previous bad blood---Weapons used in the occurrence were not generally weapons of choice selected to mount an assault---Accused side also suffered injuries, which were conspicuously omitted in the crime report---Circumstances of the case spelled out an occurrence that no one anticipated, and once it started it aggravated, resulting into injuries to both parties, with a heavier toll on the complainant's side---In circumstances liability of accused persons more aptly fell within the mischief of S. 302(c), P.P.C., as rightly decided by the High Court---Appeal was dismissed accordingly.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

Astaghfirullah, Advocate Supreme Court for Appellant.

Nemo for Respondent No.1.

Barrister Qasim Wadud, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

2019 S C M R 1417

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

BASHIR AHMAD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 97-L of 2016 and Criminal Petition No. 465-L of 2014, decided on 7th May, 2019.

(On appeal from the judgment dated 27.03.2014 passed by the Lahore High Court, Multan Bench in M.R. No. 46 of 2009, Crl. A. No.305 of 2008, Crl. Rev. No.95 of 2009 and Crl. P.S.L.A. No.20 of 2009)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Complainant party had implicated in the present case two brothers, son of one of the brothers, and two other persons belonging from the same clan---Entire household had been implicated giving the impression that it was a case of a casting a wider net---Admittedly deceased and complainant were carrying weapons during the occurrence giving credence to the argument that complainant party was also the aggressor---Suppression of injuries sustained by the accused side was another intriguing circumstance---While the complainant was well within the remit of law to pursue his case through a private complaint, nonetheless, non-examination of investigating officer alongside some other witnesses exposed the accused to agrievous prejudice---Prosecution case was not free from doubt and thus it would be unsafe to maintain the conviction of the accused---Appeal was allowed and accused was acquitted of the charge of murder.

Malik Muhammad Saleem, Advocate Supreme Court for Appellants.

Malik Muhammad Munsif Awan, Advocate Supreme Court for Petitioners.

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

2019 S C M R 1448

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SHEWAIZ RASOOL alias SHABI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 135-L of 2017, decided on 14th May, 2019.

(On appeal from the judgment dated 11.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1130-J of 2010 and Capital Sentence Reference No. 39-T of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Rule of consistency---Accused and acquitted co-accused assigned similar roles during occurrence---Role assigned to the accused of firing at the deceased was similar to that of the two acquitted co-accused---In the absence of any specific motive no distinction could possibly be drawn so as to distinguish, even obliquely accused's case from his co-accused---One of the co-accused was acquitted by the Supreme Court for a variety of reasons; these included issue of identity of assailants during the night of occurrence; improbability of witnesses' detour preceding assault and arrival at the scene exactly at the time when firing commenced; human incapacity to capture minor details in an extreme crisis situation involving no less than eight persons and lack of motive etc.---All said reasons were squarely applicable to the case of accused as well---Appeal was allowed and accused was acquitted of the charge.

Ms. Khalida Parveen, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Appellant.

Respondent No.2 in person.

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

2019 S C M R 1451

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

WAJAHAT---Appellant

Versus

GUL DARAZ and another---Respondents

Criminal Appeal No. 13-P of 2015, decided on 30th April, 2019.

(On appeal from the judgment dated 13.02.2013 passed by the Peshawar High Court, Mingora Bench in Criminal Appeal No. 97 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was alleged to have murdered his wife in the matrimonial home---Trial Court convicted the accused under S. 302(b), P.P.C. and sentenced him to imprisonment for life, which sentence was affirmed by the High Court---Held, that the complainant, who was the deceased's father, had not himself witnessed the occurrence---Crime report was structured upon the complainant's strong belief that no one else other than the accused could be the possible assassin---Conviction of accused was based upon hearsay queries, most important being the one furnished by the complainant's second daughter, who was married in the same household---Said witness appeared in the witness box and pleaded ignorance about the culprit responsible for her sister's death, and merely deposed about the crime without reference to the assailant---Absconsion of accused and his belated plea of suicide even if rejected outrightly by themselves would not absolve the prosecution to drive home the charge on its own strength---Appeal was allowed and accused was acquitted of the charge of murder.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121---Qatl-i-amd of wife in matrimonial house---Reappraisal of evidence---Adverse presumption---Scope---Accused's reticence to satisfactorily explain as to what befell upon his wife in their matrimonial home, though somewhat intriguing, could not be equated to qualify as evidentiary certainty, essentially required in order to saddle him with corporal consequences---Failure to provide satisfactory explanation would not give rise to an adverse presumption within the contemplation of Art. 121 of the Qanun-e-Shahadat, 1984 and thus it would be grievously unsafe to maintain the conviction of murder against the accused---Appeal was allowed and accused was acquitted of the charge of murder.

Ansar Nawaz Mirza, Advocate Supreme Court for Appellant.

Abdul Munir Khan, Advocate Supreme Court for Respondent No.1.

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

2019 S C M R 1453

[Supreme Court of Pakistan]

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

Messrs HABIB AND COMPANY and others---Petitioners

Versus

MUSLIM COMMERCIAL BANK LIMITED and others---Respondents

Civil Petition No. 2013 of 2017, decided on 21st June, 2019.

(Against order dated 17.04.2017 of Lahore High Court, Lahore, passed in F.A.O. No. 317 of 2004)

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

----O. XXI, R. 90--- Auction proceedings---Objection petition---Maintainability---Requirement to deposit 20% of the highest bid---Statutory deposit of 20% by the judgment debtor was mandatory---Without such a deposit the objection application filed by the judgment debtor under O. XXI, R. 90, C.P.C. was not maintainable.

Nice 'N' Easy Fashion (Pvt.) Ltd. v. Allied Bank of Pakistan 2014 SCMR 1662 and Zakaria Ghani v. Muhammad Ikhlaq Memon PLD 2016 SC 229 ref.

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

----O. XXI, R. 90---Auction proceedings---Objection petition regarding reserve price of property---Objection regarding reserve price could not be taken by the judgment debtor after the auction had taken place---Duty to raise such an objection at the initial stages was cast on the judgment debtor.

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

----O. XXI, R. 92---Auction proceedings---Sale confirmed in favour of auction purchaser and sale certificate issued---With the holding (and confirmation) of sale, third party interests intervened which could not be disregarded---Valid sale in execution would not become invalid to the prejudice of the auction purchaser because the decree had (subsequently) been wiped out or reversed---Language of O. XXI, R. 92, C.P.C. stipulated that the sale would become absolute once the order for its confirmation had been made by the Executing Court.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

M. Munir Peracha, Advocate Supreme Court for Petitioners.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos. 2, 5 and 6.

Abdul Hameed Chohan, Advocate Supreme Court for Respondents Nos. 3 and 4.

2019 S C M R 1457

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, ACJ, Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

ALAMGIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 533 of 2019, decided on 31st July, 2019.

(Against the judgment dated 22.4.2019 passed by the Peshawar High Court, Bannu Bench in Criminal Miscellaneous B.A. No. 123-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 462-C---Theft of natural gas---Bail, refusal of---Accused was allegedly siphoning natural gas to unauthorizedly generate electricity, which was distributed to a large number of consumers in the neighbourhood---Appliances being used by the accused, comprising of electric generators, stabilizers with electric panels as well as other paraphernalia to power the system were secured by the police vide an inventory---Statements of the witnesses (functionaries of the State) with no animus or malice against the accused, were duly corroborated by apparatus secured from the spot, which constituted 'reasonable grounds', within the contemplation of S. 497, Cr.P.C. to prima facie frame the accused with the charge that attracted the bar contained therein as S. 462-C, P.P.C. carried a punishment that may extend to ten years' rigorous imprisonment---Bail was refused accordingly.

Salahuddin Malik, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Petitioners.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa and Muhammad Alam, ASI for the State.

2019 S C M R 1458

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik and Qazi Muhammad Amin Ahmed, JJ

SAIF ULLAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 720-L of 2019, decided on 18th July, 2019.

(Against the order dated 30.11.2017 passed by the Lahore High Court, Lahore in Crl. Misc. No. 43614-B of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Although accused was nominated in the FIR with the allegation that fires so shot by him allegedly hit on the face of the deceased, but it was confirmed by the prosecution/law officer under instructions of the police present in court with the record, that the accused reached at the spot when the incident was almost over and he did not cause any injury on the person of deceased---Accused was behind bars since more than 2 years and 9 months---Nothing was recovered from him during the course of investigation---Case against the accused called for further inquiry falling within the ambit of S.497(2), Cr.P.C., in circumstances---Bail was allowed to accused accordingly.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G.along with Abdul Razzaq, ASI for the State.

Mian Ghulam Hussain, Advocate Supreme Court for Respondent No.2.

2019 S C M R 1639

[Supreme Court of Pakistan]

Present: Umar Ata Bandial,Maqbool Baqar and Munib Akhtar, JJ

CHIEF COMMISSIONER INLAND REVENUE,RTO, PESHAWAR---Appellant

Versus

Messrs SABRINA TENT SERVICES---Respondent

Civil Appeals Nos. 433-435 of 2015, decided on 9th May, 2019.

(On appeal from the judgment/order dated 15.7.2014 passed by Peshawar High Court, Peshawar in Tax References Nos. 86-88 of 2007)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(8) & 122(1)--- Amended assessment--- 'Definite information'---Scope---Definite information did not mean a re-analysis of existing information or an analysis of further information that was previously accessible but had not been taken into account (by the tax authorities).

Central Insurance Co. v. Central Board of Revenue 1993 SCMR 1232; Inspecting Assistant Commissioner v. Pakistan Herald Ltd. 1997 SCMR 1256 and Income Tax Officer v. Chappal Builders 1993 PTD 1108 ref.

Rehmatullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Ghulam Shoaib Jally, Advocate Supreme Court for Respondent.

Date of hearing: 9th May, 2019.

2019 S C M R 1641

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J. and Ijaz ul Ahsan, J

FAWAD ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 562, 563 and 564 of 2019, decided on 25th July, 2019.

(Against the judgment dated 04.03.2019 passed by the Peshawar High Court, Peshawar in Bail Cancellation Applications Nos. 2358-P, 2088-P of 2017 and 2359-P of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Bail, cancellation of--- Proclaimed offender--- Non-bailable warrants of arrest---When an accused person admitted to bail was subsequently declared a proclaimed offender or non-bailable warrants for his arrest were issued then such declaration or issuance of non-bailable warrants ipso facto amounted to cancellation of such accused person's bail.

Yusuf Masih v. The State 1987 PCr.LJ 1412; Muhammd Boota v. Muhammad Arshad and another Criminal Miscellaneous No. 1481-CB of 2009; Sharafat Ali v. The State and others Criminal Revision No. 680 of 2008 and Atta-ur-Rehman v. Rana Phool and others Criminal Petition No. 558-L of 2014 ref.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Petitioner (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 25th July, 2019.

2019 S C M R 1643

[Supreme Court of Pakistan]

Present: Umar Ata Bandial,Munib Akhtar and Yahya Afridi, JJ

COMMISSIONER INLAND REVENUE,RTO, RAWALPINDI---Appellant

Versus

Messrs TRILLIUM PAKISTAN (PVT.) LTD.,RAWALPINDI and others-- Respondents

Civil Appeals Nos. 1269 to 1273 of 2013, decided on 31st January, 2019.

(On appeal from the judgment/order dated 13.02.2013 of the Lahore High Court, Rawalpindi Bench passed in ITRs Nos. 35, 38, 16, 17 and 42 of 2012)

(a) Interpretation of statutes---

----Fiscal statute---Explanation provided in a statute---Scope---Such explanation ordinarily operated to clarify the law prospectively---Retrospective liability was, however, imposed when an explanation attributed a meaning to a substantive provision or expression whereby the burden, obligation or liability of a person was increased for a past period---Such retrospective impact was to be avoided unless the express language of the explanation warranted such an interpretation.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 182(1) [as it stood during the tax years 2008 and 2009]---Default by tax payer to file income tax returns within the prescribed period---Penalty calculated as a percentage of the 'tax payable'---'Tax payable'---Meaning---Whether the term 'tax payable' pertained to amount of tax that remained to be deposited with the return or it referred to the total tax liability of the assessee for the income year---Held, that expression "tax payable" originally used in Column 3 of the Table appended to S. 182(1) of the Income Tax Ordinance, 2001 quantified the amount of penalty payable by an assessee in the event of the specified default by him---Being penal in nature, such expression was subject to a narrow interpretation---However, in the year 2011 the said expression 'tax payable' was clarified to have a wider meaning which increased the leviable amount of penalty---At the relevant time in the present case, namely, tax years 2008 and 2009, a plain interpretation of the expression meant that the amount of tax payable with the return formed the base figure for calculating the penalty amount---Prior to the Explanation inserted in column 3 of the Table appended to S. 182(1), the expression "tax payable" could not be read to impose a larger penalty based on the amount of tax that was chargeable on the taxable income of the assessee for that assessment year---In the present case, due to deductions of withholding tax at source no amount of tax was payable with the return by the assessee---Enhanced liability sought to be enforced by the tax authorities under the expanded meaning given by the Explanation in the year 2011 became effective from the time of its promulgation and not prior thereto---Appeals were dismissed accordingly.

Dr. Farhat Zafar, Advocate Supreme Court for Appellant (in all cases).

Malik Javed Khalid, Advocate Supreme Court for Respondents (in C.A. 1273 of 2013).

Respondents Ex parte (in C.As. Nos. 1269 to 1272 of 2013).

Date of hearing: 31st January, 2019.

2019 S C M R 1646

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah andQazi Muhammad Amin Ahmed, JJ

Qari MUHAMMAD ISHAQ GHAZI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 310-L of 2017, decided on 27th June, 2019.

(Against the judgment dated 26.10.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 608 of 2015)

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

----S. 9---Possession of pamphlets containing content inciting violence against a particular sect---Reappraisal of evidence---Contents of the pamphlets were repugnant and abhorrent, capable of causing most grievous offence---Said pamphlets contravened all limits of decency, an obligation sanctimoniously upheld by every faith---Anti-Terrorism Court had rightly convicted the accused under S. 9 of the Anti-Terrorism Act, 1997 and sentenced him to 5 years' rigorous imprisonment with fine of Rs.100,000---Appeal was dismissed accordingly.

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

----S. 9---Possession of pamphlets containing content inciting violence against a particular sect---Whether mere possession of such pamphlets was sufficient to attract provisions of S. 9 of the Anti-Terrorism Act, 1997---Held, that S. 9 of the said Act, unambiguously, suggested that possession of the inflammatory material by itself was an offence even before it was distributed---Legislature intended to nip the evil in the bud given the inflammatory potential of the crime---Anti-Terrorism Court had rightly convicted the accused under S. 9 of the Anti-Terrorism Act, 1997 for mere possession of the inflammatory pamphlets---Appeal was dismissed accordingly.

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

----S. 9---Possession of pamphlets containing content inciting violence against a particular sect---Reappraisal of evidence---Non-association of private witnesses---Police witnesses, credibility of---Police officials, being functionaries of the State, were no less credible witnesses to drive home the charge---Police officials were as good witnesses as any other and their evidence was subject to the same standard of proof and principles of scrutiny as applicable to any other category of witnesses---In the absence of any animus, infirmity or flaw in their depositions, their statements could be relied upon without demur---Officials who testified in the witness-box had seemingly no axe to grind against the accused, and were in comfortable unison with one another---Appeal against conviction was dismissed with the observation that people in the society generally preferred to recuse behind safety instead of coming forward in aid of justice.

Rai Bashir Ahmad, Advocate Supreme Court for Appellant.

Ch. Muhammad Mustafa, DPG for the State.

Date of hearing: 27th June, 2019.

2019 S C M R 1649

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa,Dost Muhammad Khan and Qazi Faez Isa, JJ

FAIZAN ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 25-P of 2014, decided on 29th May, 2017.

(Against the judgment dated 4.11.2013 passed by Peshawar High Court, Peshawar in Criminal Appeal No. 213-P of 2013)

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

----S. 9(c)---Possession of narcotics---Reappraisal of evidence---Benefit of doubt---Safe custody of contraband substance by police not established---Safe transmission of samples to the Chemical Examiner not established---According to the FIR and the memorandum of recovery, ten packets of charas weighing one kilogram each had allegedly been recovered from the custody of the accused and it had been maintained by the prosecution that from each of the said packets one sample weighing five grams had been separated for chemical analysis---One of the police witnesses had categorically stated before the Trial Court that each of the recovered packets had only one slab in it but when the recovered substance had been produced before the Trial Court and was opened it was revealed that ten packets allegedly recovered in the case contained 96 slabs in all---Prosecution alleged that each of the parcels separated from the recovered substance was affixed with three seals reading the initials S.K. but the record showed that the monogram carrying the alphabets S.K. was not found available in the case-property at all---Record of the case also showed that nobody had appeared before the Trial Court to confirm safe custody of the recovered substance at the police station and the moharrir had also not appeared before the Trial Court---No witness had been produced before the Trial Court to state that the recovered substance or the parcels had not been tampered with while in transmission to the Forensic Science Laboratory or the office of the Chemical Examiner---Shape in which the recovered property was produced before the Trial Court indicated that the property so produced before the Trial Court was different from the property allegedly recovered at the time of the raid and recovery---Case against the accused was full of doubts the benefit of which had to be extended to him---Appeal was allowed, 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.

Noor Alam Khan, Advocate Supreme Court for Appellant.

Zahid Yousaf, Advocate Supreme Court for the State.

Date of hearing: 29th May, 2017.

2019 S C M R 1651

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, J

JHUSSAIN ULLAH---Petitioner

Versus

STATE and another---Respondents

Criminal Petition No. 989 of 2017, decided on 22nd September, 2017.

(On appeal against the order dated 17.08.2017 passed by the Lahore High Court, Lahore in Crl. Misc. No. 55111-B of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Conscious possession of narcotic---When the accused was arrested by the police, he was not driving the car nor any narcotic was recovered from his exclusive possession rather he was sitting on the rear seat of the car---Prosecution under instructions of the police officer present in court confirmed that there was nothing on the record to connect the accused with the car---In such circumstances, the case of the accused became one of further inquiry falling within the ambit of S. 497, Cr.P.C.---Furthermore accused was behind the bars since more than six months and nothing new was to be recovered from him---No useful purpose would be served by keeping the accused incarcerated for an indefinite period---Accused was granted bail accordingly.

Noor Alam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Usman Mirza, DPG and M. Riaz, I.O. for the State.

Date of hearing: 22nd September, 2017.

2019 S C M R 1653

[Supreme Court of Pakistan]

Present: Mushir Alam and Sajjad Ali Shah, JJ

HALEEM UR REHMAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petition No. 640-K of 2018, decided on 5th August, 2019.

(Against the judgment dated 19.3.2018 passed by the High Court of Sindh in C.P. No. 4185 of 2017)

Sindh Permanent Residence Certificate Rules, 1971---

----Rr. 2(1) & 8---Constitution of Pakistan, Art. 199---Constitutional petition--- Maintainability--- Scope---Medical college---Admission quota---Permanent Residence Certificates ('PRCs'), cancellation of---Constitutional petition challenging cancellation of admission in medical college when students had almost completed their course---Maintainability---Alternate remedy not adequate or efficacious---Process of verifying the educational testimonials as well as domicile and PRCs of merited candidates ('respondents') who were granted admission for the academic session 2012-2013 was completed in accordance with the policy of the educational institution---Petitioner, who was denied admission, owing to failing to meet the admission criteria, filed appeals before the Commissioner in the year 2015 under R. 8 of the Sindh Permanent Residence Certificate Rules, 1971 seeking cancellation of PRCs issued in favour of respondents---Said appeals remained pending for almost two years and ultimately in the year 2017 the said appeals were allowed and the PRCs of the respondents were cancelled---Respondents filed constitutional petitions before the High Court against the order of the Commissioner cancelling their PRCs, which petitions were allowed and order of Commissioner was set aside---Plea of petitioner that the constitutional petitions were not maintainable as alternate remedy against order of Commissioner was provided under the Sindh Permanent Residence Certificate Rules, 1971---Held, that after verifying the genuineness of the PRCs by the office of the Deputy Commissioner, the respondents were granted admission in the academic session 2012-13 and then all of a sudden their cancellation in the year 2017 when the holders of the PRCs had almost completed their (MBBS) degree, exposing them to uncertain consequences was a justifiable cause to invoke the constitutional jurisdiction of the High Court as in the circumstances, the remedy provided under the Sindh Permanent Residence Certificate Rules, 1971, was not adequate or efficacious---Moreover prospectus/rules of the medical college only provided that in case the PRCs or any other educational testimonial of the candidates were found fake, their admission was supposed to be cancelled, however, in the present case neither any of the educational testimonials of the respondents nor their PRCs were found fake---In fact when the respondents had almost completed their (MBBS) degree, the Commissioner by taking a different view than the granting authority, cancelled their PRCs---Constitutional petitions were held to be maintainable accordingly.

Abdul Salam Memon, Advocate Supreme Court and Dr. Raana Khan, Advocate-on-Record for Petitioner.

M. Sarwar Khan, Additional A.-G. Sindh, Dr. Ameer Ali, VC Lyari Medical College, Prof. Amanullah, Registrar DOW University, Sher Hussain Shah, ADC-II Malir, Samiullah Khan, ADC-II (West), Ibrahim Memon, D.S. Health Sindh and M. Younis SO Health Government of Sindh for Respondents.

Date of hearing: 5th July, 2019.

2019 S C M R 1657

[Supreme Court of Pakistan]

Present: Umar Ata Bandialand Munib Akhtar, JJ

CHIEF COMMISSIONER INLAND TAX, through RTO,Zone-I, Federal Board of Revenue, Hyderabad and others---Appellants

Versus

GHULAM MUSTAFA MARI, EX-INSPECTOR, INCOME TAX, REVENUE DIVISION, FBR, HYDERABAD---Respondent

Civil Appeal No. 1226 of 2016, decided on 12th March, 2019.

(On appeal from the order dated 15.10.2015 passed by the FST, Ibd. in A. No. 3214(R)CS/2012)

Civil service---

----Reinstatement, matter of--- Res judicata--- Past and closed transaction---Re-opening of a case in violation of judgment of the Supreme Court---Respondent was appointed in the Income Tax Department in the year 1994 on the recommendation of the Prime Minister Secretariat---Respondent was removed from service on 15.1.2003 for failure to produce his Bachelor Degree which was a condition of eligibility for appointment to his post---Respondent's recourse to departmental authorities, the Federal Service Tribunal and the Supreme Court failed to find any favour in the matter of his re-instatement---Supreme Court in its judgment held that the respondent without having the requisite qualification for the post, obtained appointment in an improper manner and consequently no right could be created in his favour to retain an illegal gain by mere efflux of time---Judgment of Supreme Court attained finality and thereafter the matter became a past and closed transaction inter se the parties to the lis---Again on the initiative of the Prime Minister Secretariat in the year 2008, case of respondent was re-opened and he was reinstated in service---After remaining in service for some 2½ years the respondent was informed in the year 2012 that he stood removed from service by restoration of the erstwhile penalty imposed on him on 15.1.2003---Federal Service Tribunal granted the respondent a right of de novo inquiry---Legality---Question was as to how the executive authorities could re-open a case after it had been decided finally by a judgment of the Supreme Court delivered inter parties in the respondent's case---Further action in the matter was barred by res judicata and the doctrine of past and closed transaction---Federal Service Tribunal's order for de novo inquiry was set aside in circumstances--- Appeal was allowed accordingly.

Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division, Islamabad and others 1996 SCMR 628 distinguished.

Imran Fazal, Advocate Supreme Court, Muhammad Siddique Mirza, Advocate Supreme Court and M. Amin Shah, FBR for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondent.

Date of hearing: 12th March, 2019.

2019 S C M R 1679

[Supreme Court of Pakistan]

Present: Gulzar Ahmed,Faisal Arab and Sajjad Ali Shah, JJ

NAZLI HILAL RIZVI---Petitioner

Versus

BANK AL-FALAH LTD. and others---Respondents

Civil Petition No. 381-K of 2019, decided on 7th August, 2019.

(Against the judgment dated 18.03.2019 passed by the High Court of Sindh, Karachi in First Appeal No. 14 of 2015)

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

----O. XXI, R. 90---Auction proceedings---Objection petition regarding non-serving of notice at address outside Pakistan and not following other legal requirements necessary for the auction---Paper book of present case contained copies of notices that were sent in the execution proceedings to the petitioner/judgment debtor at the address on which she was served when summons was issued in the suit---Said notices included notice for attachment of the mortgaged property, notice for settling the terms of proclamation of sale and notice for sale of the mortgaged property---Thereafter, auction notice was also published in two leading newspapers---Petitioner's address in the suit was her residence in city "K" of Pakistan on which the summons was served and she also filed her leave to defend the said application, thus, it was the petitioner's obligation to place on record her new address for any future service on her, if at all such service was required by law, which she did not do---Advocate who represented the petitioner and other judgment debtors in the suit also continued to appear before the Banking Court even after conversion of suit into execution proceedings that finally culminated in the sale of the mortgaged property---Hence, the petitioner could not feign ignorance about the periodical developments that took place in the proceedings---Question of non-service to the petitioner did not arise at all---Petition for leave to appeal was dismissed accordingly.

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

----Ss. 9 & 22---Suit for recovery of loan---Decree by Banking Court---Execution proceedings---Notice not required---Section 19 (1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 had done away with the general requirement of instituting fresh proceedings for the execution of the decree as provided in the Code of Civil Procedure, 1908---After the banking suit was decreed, the proceedings did not come to an end but stood automatically converted into execution proceedings for which no fresh notice was required to be served.

Muhammad Haseeb Jamali, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

K.A. Wahab, Advocate-on-Record for Respondent No.1.

Liaquat Hussain Khan, Advocate Supreme Court and K.A. Wahab, Advoate-on-Record for Respondent No.5.

2019 S C M R 1684

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Ijaz ul Ahsan andQazi Muhammad Amin Ahmed, JJ

NIDA KHUHRO---Appellant

Versus

MOAZZAM ALI KHAN and others---Respondents

Civil Appeal No. 188 of 2019, decided on 1st August, 2019.

(Against judgment dated 15.01.2019 of the High Court of Sindh, Bench at Sukkur, passed in Election Petition No. S-01 of 2018)

(a) Elections Act (XXXIII of 2017)---

----Ss. 137(4) & 156(a)---Constitution of Pakistan, Art. 62(1)(f)---Disqualification from membership of Provincial Assembly---Nomination papers---Concealment of assets in name of candidate and his dependents---Plea that part of certain landholding that was in respondent's/returned candidate's name was not declared in nomination papers since such landholding was administered and in possession of respondent's father---Held, that respondent/returned candidate did not disclose his entire landholding in a certain district which admittedly consisted of 140.24-1/2 acres---Out of the said holding he only declared 61 acres but did not disclose the rest which according to him had been transferred in his name by way of a family settlement agreement---Fact that the father of respondent may have been administering part of his land as his agent or nominee and may also have been receiving the benefits/income derived from the said land reflecting a mutual family arrangement, but it did not detract from the fact that respondent was the owner of the said land in all records, which constituted his asset---All proprietary rights, title, ownership and interest in the said land vested in the respondent---Respondent had the power to sell, alienate and dispose of such properties without any legal or procedural restriction, hitch or hindrance in his way---Respondent was aware of the extent of his ownership and the benefits of the same as he received compensation in millions of rupees for a portion of his holding acquired by the Provincial Government---Mere fact that land revenue may have been paid by the father of respondent also did not improve his case---Significantly the respondent neither produced his father as a witness before the Election Tribunal nor produced any other credible evidence to establish his halfhearted plea of Benami ownership, other than revenue payment receipts which were insufficient---Respondent also admitted that the holdings of his minor sons were also not disclosed in the relevant documents---Nomination papers were accompanied by a declaration which was required to be sworn under oath and was indeed sworn as such by the respondent pursuant to a judgment of the Supreme Court in the case reported as Speaker, National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678)---Admittedly, respondent filed such affidavit which was not true and was patently deficient insofar as it failed to accurately disclose all assets of the respondent---In terms of S. 137(4) of the Elections Act, 2017, submission of a statement of assets and liabilities, which was found to be false in material particulars constituted corrupt practice---More importantly, the declarations given by the respondent under solemn affirmation as part of his nomination papers, and the affidavit submitted by him pursuant to the judgment of the Supreme Court also exposed him to disqualification not only under the provisions of the Elections Act, 2017 but also under the provisions of Art. 62(1)(f) of the Constitution---By reason of making a false statement under oath, respondent ceased to be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) because he could not be termed as righteous and honest---Importantly there was no bona fide mistake, mathematical error or clerical mistake in preparing and filing the nomination papers and the affidavit filed in compliance of the orders of the Supreme Court---Nomination of respondent was invalid---Resultantly, his declaration as a Member of the Provincial Assembly vide a notification was annulled, and it was directed that he shall immediately cease to be a member of the Provincial Assembly, and that the Election Commission shall hold fresh elections in the constituency in accordance with law---Appeal was allowed accordingly with the observation that the respondent being the scion of a well off, educated political family and having free access to legal advice (if he so desired) could have sought clarification of any ambiguity that may possibly have existed in his mind, although there was no ambiguity either in the law or in the specific facts and circumstances of the present case.

Speaker, National Assembly of Pakistan v. Habib Akram PLD 2018 SC 678; Hassan Nawaz v. Muhammad Ayub PLD 2017 SC 70; Sher Baz Khan Gaadhi v. Muhammad Ramzan 2018 SCMR 1952; Muhammad Nawaz Sharif v. Imran Ahmad Khan Niazi PLD 2018 SC 1; Imran Ahmed Khan Niazi v. Muhammad Nawaz Sharif PLD 2017 SC 692; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema 2016 SCMR 763; Shamuna Badshah Qaisarani v. Muhammad Dawood 2016 SCMR 1420 and Khaleefa Muhammad Munawar Butt v. Hafiz Muhammad Jamil Nasir 2008 SCMR 504 ref.

(b) Elections Act (XXXIII of 2017)---

----Ss. 137(4) & 156(a)---Constitution of Pakistan, Art. 62(1)(f)---Disqualification from membership of Parliament---Nomination papers---False declaration/concealment of assets---Dishonesty, finding of---No set formula could be fixed with regard to any omission to list an asset in the nomination papers and make a declaration of dishonesty and impose the penalty of lifetime disqualification---Unless dishonesty was established in appropriate judicial proceedings, Art. 62(1)(f) of the Constitution could not be invoked to disqualify an elected member for life. [p. 1694] I

Muhammad Asif v. Muhammad Usman Dar 2018 SCMR 2128 and Shakeel Awan v. Rashid Ahmed PLD 2018 SC 643 ref.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Salah-ud-Din Ahmed, Advocate Supreme Court for Respondent No.1.

2019 S C M R 1720

[Supreme Court of Pakistan]

Present: Gulzar Ahmed,Mushir Alam and Sajjad Ali Shah, JJ

ASIF HASSAN and others---Petitioners

Versus

SABIR HUSSAIN and others---Respondents

Civil Petition No. 673-K of 2018, decided on 25th July, 2019.

(Against the judgment dated 23.5.2018 passed by the High Court of Sindh in C.P. No. D-389 of 2012)

(a) Constitution of Pakistan---

----Arts. 185(3) & 199---Civil service---Appointment---Suitability of a candidate---Jurisdiction of the Supreme Court and Constitutional jurisdiction of the High Court---Scope---Court could not take upon itself the function of the appointing authority in order to judge the suitability of a candidate.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---Writ in the form of quo warranto was an extraordinary discretionary jurisdiction and the Court was not bound to exercise such jurisdiction in each and every case specially where on account of laches the matter had lost its significance or in cases of minor discrepancies or sheer curable technicalities or where the approach was doctrinaire unless it was shown that non-interference would result in grave injustice or would amount to endorsing the retention of illegal gains

(c) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---Civil service---Appointment criteria---Prescribed qualification and experience---Candidate appointed to post lacking the prescribed qualification and experience at time of appointment but fulfilling the same during pendency of writ (of quo warranto) filed against him---Where the eligibility of a public servant was under attack on the ground that such public servant did not fulfil the substantive condition of eligibility to such office on the cutoff date prescribed in the process, then such violation of the substantive statutory requirement could not be overlooked merely on the ground that pending action in the Court such government servant had met the required condition of such office.

Ammad Ahmad v. National Highway Authority 2018 PLC (C.S.) Note 187; M.A. Jabbar and others v. Federation of Pakistan 1999 PLC (C.S.) 686 and Sajid Hussain v. Shah Abdul Latif University Khairpur PLD 2013 Sindh 232 not approved.

M. M. Aqil Awan, Senior Advocate Supreme Court for Petitioners.

Ahmed Ali Ghumro, Advocate Supreme Court for Respondent No.1.

Khalid Mahmood Siddiqui, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-record for Respondent No. 3.

2019 S C M R 1726

[Supreme Court of Pakistan]

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

PAKISTAN REFINERY LTD., KARACHI---Petitioner

Versus

BARRETT HODGSON PAKISTAN (PVT.) LTD.and others---Respondents

Civil Petitions Nos. 4703 and 4704 of 2017, decided on 11th January, 2018.

(On appeal against the judgment dated 24.10.2017 passed by the High Court of Sindh at Karachi in Appeals Nos. 7 and 8 of 2015)

Civil Procedure Code (V of 1908)---

----O. XX, R. 5 & O. XLI, R. 31---"Judgment"---Essential contents---Lis before either Trial Court or the court of appeal had to be decided with due application of mind which should be writ large on the face of the judgment---Judgment delivered by the Trial Court would not be a judgment in the real sense of the word if it did not conform to the requirements of O. XX, R. 5, C.P.C.---Similarly, a judgment delivered by the first court of appeal and final court of fact would not be a judgment if it did not conform to the requirements of O. XLI, R. 31, C.P.C.---Rationale or raison d'etre behind said provisions was that not only the party loosing the case but the next higher forum may also understand what weighed with the court in deciding the lis against it---Such exercise could not be dispensed with even in the case of affirmative judgments otherwise it would not be known whether arguments addressed were accepted or rejected with due application of mind---Perusal of the impugned judgment revealed that the Division Bench of the High Court did not state the points of determination, decision thereon, and reasons therefor---What led the Division Bench of the High Court to affirm the finding handed down by the Single Judge of the High Court had neither been adverted nor alluded to---Arguments of the counsel for the parties had been reproduced in the impugned judgment but as to whose arguments merited acceptance and whose arguments merited rejection had not been mentioned---Such judgment could not be said to have been rendered in substantial compliance with O. XLI, R. 31, C.P.C.---Impugned judgments were set aside and the cases were sent back to a Division Bench of the High Court for decision afresh in accordance with law---Petitions were allowed accordingly.

Girijanandini Devi and others v. Bijendra Narain Choudhry AIR 1967 SC 1124 and Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 452 distinguished.

Rashid Anwar, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Waqar Rana, Additional A.G.P. for the Federation.

Makhdoom Ali Khan, Senior Advocate Supreme Court and Zahid F. Ibrahim, Advocate Supreme Court for Respondent No. 2.

2019 S C M R 1730

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel andQazi Muhammad Amin Ahmed, JJ

HASHMAT ULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 266 of 2019, decided on 7th August, 2019.

(Against the judgment dated 24.08.2017 passed by the High Court of Balochistan, Quetta in Ehtesab Appeals Nos. 5 and 8 of 2009)

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

----S. 9(a)(x)---Penal Code (XLV of 1860), Ss. 405 & 406---Corruption and corrupt practices, criminal breach of trust---Reappraisal of evidence---Investment in a business---Lack of entrustment of property and dishonest intention---Numerous investors had invested in accused's business---Accused kept paying profits to such investors for some time but later on stopped paying profits and allegedly refused to return the invested amount---Accountability Court convicted the accused for an offence under S. 9(a)(x) of the National Accountability Ordinance, 1999 and sentenced him to rigorous imprisonment for four years and to pay fine besides confiscation of a house standing in his name---Plea of accused that his liability was of a civil nature, particularly rendition of accounts, and not a criminal liability because he never had any criminal intent to commit the alleged offence---Held, that perusal of S. 9(a)(x) of the National Accountability Ordinance, 1999 showed that the relevant offence was attracted only if the accused person was proved to have committed the offence of criminal breach of trust as defined in S. 405, P.P.C. and if there was an entrustment of property involved in the matter---Offence under S. 405, P.P.C. punishable under S. 406, P.P.C. was attracted only in a case of entrustment of property and not in a case of investment or payment of money---In the present case, it was the prosecution's own case that a section of the public had invested money in the accused's business and such undeniable fact had taken the present case out of the purview of S. 9(a)(x) of the National Accountability Ordinance, 1999---Present case appeared to be a classic case of a civil dispute based upon alleged breach of agreements for which remedies laid somewhere other than in a criminal court---Appeal was allowed, conviction and sentence of accused recorded and upheld by the courts below were set aside and he was acquitted of the charge.

Shahid Imran v. The State and others 2011 SCMR 1614 and Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 ref.

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

----Ss. 9(a)(iii) & 9(a)(x)--- Corruption and corrupt practices---Reappraisal of evidence---Investment in a business---Lack of dishonesty and fraud---Numerous investors had invested in accused's business---Accused kept paying profits to such investors for some time but later on stopped paying profits and allegedly refused to return the invested amount---Accountability Court convicted the accused for an offence under S. 9(a)(x) of the National Accountability Ordinance, 1999 ('the Ordinance') and sentenced him to rigorous imprisonment for four years and to pay fine besides confiscation of a house standing in his name---Plea of prosecution that if the Court found that S. 9(a)(x) of the Ordinance was not attracted to the present case then the original charge under S. 9(a)(iii) of the Ordinance may be considered for the purpose of upholding and maintaining the accused's conviction and sentence---Held, that the basic ingredients of the offence under S. 9(a)(iii) of the Ordinance, were dishonesty and fraud through which misappropriation took place or some property was convened to the offender's use or for the use of any other person and such property had initially been entrusted to the offender or was under his control---In the present case, the entire evidence produced by the prosecution was in respect of agreements having been entered into by some persons with the accused for the purposes of investment in the accused's business and it was written large on the record of the case that for some time after making of such investments the accused had been paying profits to the investors---No evidence had been brought on the record to establish that at the time when the accused stopped payment of profits to the investors the accused's business was still running in profit or that he was doing good business---No independent evidence had been produced by the prosecution to prove that stoppage of payment of profits by the accused to the investors was a result of dishonesty or fraud on his part---Prosecution had also failed to prove that the accused had converted the investors' money for his own use or for the use of any other person---Provisions of S. 9(a)(iii) of the Ordinance spoke of entrustment of property to the accused person before it was misappropriated by him and in the present case, there was no element of entrustment available in the agreements between the accused and the investors---Investors had invested money in the accused's business and they had not entrusted any money to him for such money to be paid back to them in its original form---Apart from that in such cases initial dishonest intention on the part of the accused person was an, important factor but the evidence brought on the record negated the same because admittedly the accused had been paying profits to the investors for some time---As admitted by some of the prosecution witnesses themselves, it appeared that the accused's business had gone bad and such adversity had brought misfortune not only to the accused but also to the investors in his business---In the peculiar circumstances of the present case there was no dishonest intention on the part of the accused so as to convert his act into a crime---Appeal was allowed, conviction and sentence of accused recorded and upheld by the courts below were set aside and he was acquitted of the charge.

Zahoor-ul-Haq Chishti, Advocate Supreme Court for Appellant.

Imran-ul-Haq, Special Prosecutor, National Accountability Bureau for the State.

2019 S C M R 1735

[Supreme Court of Pakistan]

Present: Umar Ata Bandial,Ijaz ul Ahsan and Yahya Afridi, JJ

Messrs MUJAHID SOAP AND CHEMICALINDUSTRIES (PVT.) LTD.--Appellant

Versus

CUSTOMS APPELLATE TRIBUNAL, BENCH-I,ISLAMABAD and others---Respondents

Civil Appeal No. 1029 of 2019, decided on 25th April, 2019.

(On appeal from the judgment/order dated 29.03.2016 of the Islamabad High Court, Islamabad passed in C.R. No. 4 of 2015)

Customs Act (IV of 1969)---

----S. 179(3)---Adjudication---Period of 120 days for rendition of judgment after issuance of show cause notice---Scope---Judgment reserved---Order-in-original was issued by the Collector (Adjudication) after a lapse of 157 days from the date of show cause notice, however, customs authorities contended that the judgment was reserved on the 116th day after the date of the show cause notice, thus, it was within the time period of 120 days---Question as to whether the customs authorities were justified in treating the date of conclusion of hearing and for judgment to be reserved as the date of disposal of the show cause notice---Held, that on the 116th day after issuance of show-cause notice no decision was verbally announced by the adjudicating officer nor was any decision communicated to the parties prior to the subsequent issuance of the order-in-original---Adjudicatory decision could not be said to have been recorded/taken without announcement or communication thereof to the parties---Law was quite accommodating for the taxing authority as an extension was available beyond the originally prescribed period of 120 days for rendition of a decision---Even though no decision was communicated within the said period, such an extension could be sought and granted subsequently but in such an event it was mandatory that the decision came within 180 days after the date of show cause notice---In the present case, however, the Collector did not even apply for an extension but consumed 157 days to record the reasons for his judgment and to communicate the same to the parties---Resultantly the impugned decision was beyond time prescribed in S. 179(3) of the Customs Act, 1969, and was therefore, held to be invalid---Appeal was allowed accordingly.

Collector of Sales Tax v. Super Asia Mohammad Din and Sons 2017 SCMR 1427 ref.

Nemo for Appellant.

M.D. Shahzad, Advocate Supreme Court for Respondent No.2.

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Respondents Nos.4-5.

2019 S C M R 1738

[Supreme Court of Pakistan]

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

MUNEER AHMAD SHEIKH and another---Petitioners

Versus

DIRECTOR-GENERAL NAB KARACHIand another---Respondents

Civil Petitions Nos. 1542 and 1709 of 2017, decided on 15th June, 2017.

(On appeal against the order dated 28.04.2017 passed by the High Court of Sindh at Karachi in C.P. No. D-2735 of 2016 and D-1774 of 2017)

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Corruption and corrupt practices---Bail, grant of---Accused persons were alleged to have by-passed merit for appointment of their kith and kin in a Provincial Government Department---Present matter had been inquired at the Departmental level but somehow the accused persons were exonerated---Prima facie accused persons had a role in the commission of the crime but many others who had been hand in glove with them were neither charged nor interrogated---Persons who held inquiries against the accused persons and their accomplices, and exonerated them also appeared to be a part of the cartel bypassing merit and pushing in their near and dear ones but strangely they had not even been interrogated---Many others having similar role had not been arrested---One of the co-accused whose role was identical to that of the accused persons had been granted pre-arrest bail but no petition had been moved for its recall---In such circumstance, it would be unjust to keep the present accused persons on the tenterhooks when the law regulating accountability did not appear to have been applied across the board---Accused persons were granted bail with the observations that the Supreme Court would not like to become part of lopsided accountability by refusing bail to the accused persons, especially when all the appointments in question had been approved by the person at the helm of the Province, and that it was desirable if the law regulating accountability was applied across the board without seeing the status, stature and station of the person involved.

Answar Nawaz Mirza, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record along with Muneer Ahmad Sheikh, Petitioner for Petitioners (in C.P. 1542 of 2017).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. 1709 of 2017).

Ch. M. Faridul Hassan, Special Prosecutor and Syed Ali Imran, Special Prosecutor for NAB.

2019 S C M R 1741

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J.,Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

KAREEM NAWAZ KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Review Petition No. 52 of 2019 in Criminal Petition No. 1245-L of 2010, decided on 21st June, 2019.

(Against the judgment dated 05.06.2012 passed by this Court in Criminal Petition No. 1245-L of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Sentence, reduction in---Compromise with legal heirs of deceased---Case of provocation---Death sentence converted into imprisonment for life---Accused was convicted under S. 302(b), P.P.C. and S. 7(a) of Anti-Terrorism Act, 1997 and sentenced to death on all counts---Legal heirs of deceased entered into a compromise with the accused---Said compromise was accepted by the Trial Court to the extent of conviction under S. 302(b), P.P.C. but was rejected to the extent of S. 7(a) of Anti-Terrorism Act, 1997---Question as to whether compromise with legal heirs of deceased accepted to the extent of S. 302(b), P.P.C. could be utilized to reduce the sentence of death awarded under the Anti-Terrorism Act, 1997---Held, that a valid and accepted compromise in the coordinate offence was valid ground for reduction of sentence of death to imprisonment for life on the charge of terrorism or of a non-compoundable offence---Accused was very closely related to all the three murdered persons, i.e. he was a brother of two of the deceased and a brother-in-law of the third deceased and the incident in issue had taken place because of a dispute between the parties over some ancestral property---According to the prosecution itself there was no enmity between the parties and the present incident had taken place about half an hour of an earlier incident wherein the accused and the deceased and some others had quarreled with each while discussing the matter of ancestral property---In the absence of any on-going enmity between the parties, it could be said that the present occurrence had taken place because of some very recent provocation offered to the accused by the complainant party while discussing the issue regarding ancestral property---In such circumstances, it may therefore, be a case not of grave and sudden provocation but a case which was based upon some provocation recently offered to the accused although the same was not sudden---In such a case the least that a Court could do was to reduce the sentence of death to imprisonment for life---Furthermore a valid compromise had been arrived at between the parties which had already been allowed by the Trial Court vis-a-vis three counts of the charge under S. 302(b), P.P.C.---Sentence of death passed against the accused for the offence under S. 7(a) of the Anti-Terrorism Act, 1997 was converted into a sentence of imprisonment for life---Petitions were disposed of accordingly.

Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059; Muhammad Nawaz v. The State PLD 2014 SC 383; Shahif Zafar and 3 others v. The State PLD 2014 SC 809 and M. Ashraf Bhatti and others v. M. Aasam Butt and others PLD 2006 SC 182 ref.

Abid Saqi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

2019 S C M R 1745

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

Sh. ABDUL WAHEED---Appellant

Versus

CUSTODIAN EVACUEE PROPERTY, LAHORE and others---Respondents

Civil Appeal No. 799 of 2007, decided on 14th February, 2019.

(Against the judgment dated 26.3.2001 of the Lahore High Court, Lahore passed in W.P. No. 367-R/1986)

West Punjab Protection of Evacuee Property Act (VII of 1948) [since repealed]---

----S. 17---Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), S. 34 [since repealed]---Pakistan (Administration of Evacuee Property) Act (LXII of 1957), S. 55 [since repealed]---Evacuee property---Whether property once declared as evacuee, which was later restored to the original owners, could re-acquire the status of evacuee property due to movements of some or all of the owners outside Pakistan---Before partition of sub-continent subject properties were owned by a Hindu, who had mortgaged it against a loan obtained from a Bank in India---After death of the owner and partition of sub-continent the subject properties were declared as evacuee properties---In 1948, the widow and sons of the deceased owner came from India to Pakistan and moved an application under S. 17 of the West Punjab Protection of Evacuee Property Act, 1948, which was allowed and subject properties were declared not to be evacuee properties and restored to the family subject to the conditions that the owners would not alienate the property nor would dispossess the tenants therein and upon failure to reside in Pakistan, the order of restoration would stand annulled and the property would regain the status of evacuee property---Held, that status of subject properties could revert back to that of an evacuee property if it seemed that the return of the heirs of the original owner to Pakistan in 1948 after the property was already declared evacuee in 1947 was temporary and intended to avoid the consequence of evacuee laws---Properties in question were to be treated as evacuee due to the shifting stands and contradictory statements made by the owners before the Deputy Custodian as regards the permanent residence of the owners---When the mortgagee Bank filed a suit in 1952 for the sale of property in question, the owners resisted the sale on the ground that property was evacuee though their case throughout had been that they had become residents of Pakistan permanently---Even if the property had not been declared evacuee, the fact that it was mortgaged with a Bank and on account of the fact that it was not redeemed/sold in auction proceedings, no right, title or interest remained in the successor-in-interest of the original owner---For the first time after partition (in the year 1948) the owner's widow came to Pakistan and claimed that the family intended to permanently settle in Pakistan and on that basis the property was restored in 1948 on certain conditions---In view of the fact that the widow failed to establish that her sons made Pakistan their permanent place of residence, the property had to be regarded as an evacuee property and the High Court rightly held to be so---Appeal was dismissed accordingly.

P.G. Bhandari v. The Rehabilitation Authority, Lahore PLD 1961 SC 89 ref.

M. Akram Sheikh, Senior Advocate Supreme Court, Muhammad Aslam Zar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Ch. Aamir Rehman, Additional A.G.P. for Federation.

Barrister Qasim Ali Chohan, Additional A.-G. for the Government of Punjab.

Ex parte for Respondents Nos. 2 to 8, 10, 12, 15 to 45.

Nemo for Respondents Nos. 9 and 11.

Rehan Nawaz, Advocate Supreme Court for Respondent No. 13.

Muhammad Amir Malik, Advocate Supreme Court for Respondent No. 14.

2019 S C M R 1753

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

CIVIL APPEALS NOS. 1095-1097 and 1021-1026 OF 2018

(against the judgment dated 05.03.2018 passed in C. Ps. Nos. D-5812/2015, etc. by the High Court of Sindh, Karachi)

AND

CIVIL APPEAL NO. 134-L OF 2018 AND CIVIL PETITION NO. 1362 OF 2019

(against the judgments dated 05.04.2018 passed in W.P. No.29724/2015, etc. and 30822/2015, respectively, by the Lahore High Court, Lahore)

AND

CIVIL APPEALS NOS. 1138, 1154-1158, 1486 AND 1487 OF 2018

(against the judgment dated 03.09.2018 passed in C.P. No. D-6274/2017, etc. by the High Court of Sindh, Karachi)

AND

CIVIL PETITIONS NOS. 4475 AND 4476 OF 2018

(against the order dated 19.11.2018 passed in C.M.A. No.33322/2018 by the High Court of Sindh, Karachi)

AND

CRIMINAL ORIGINAL PETITIONS NOS. 14 AND 18 OF 2019

(Non-compliance of this Court's order dated 10.01.2019 passed in C.A. No. 1095/2018)

CRIMINAL ORIGINAL PETITIONS NOS. 25 AND 26 OF 2019

(Non-compliance of this Court's order dated 01.10.2018 passed in C.Ps. Nos.3620 and 3623/2018)

AND

CIVIL REVIEW PETITIONS NOS. 20, 37 TO 49 AND 77 OF 2019

(Review against this Court's order dated 13.12.2018 passed in C.As. Nos. 1023-1025, 1138, 1154-1158, 1486-1487, 134-L/2018 and C.Ps. Nos.4475 and 4476/2018)

CIVIL REVIEW PETITIONS NOS. 16 AND 17 AND 127 TO 133 OF 2019

(Review against this Court's order dated 10.01.2019 passed in C.As. Nos. 1023-1025, 1095 and 1154-1155/2018 and C.P. No.4475/2018)

AND

CIVIL MISCELLANEOUS APPLICATIONS NOS. 462, 465, 508, 686, 1085, 1970, 1974, 1976, 1982, 2050, 2619, 2623, 2659, 2660, 2664, 2875 AND 2880 OF 2019, AND 8466 AND 8806 OF 2018

MOHAMMAD IMRAN and others---Appellants/Applicants/Petitioners

Versus

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

Civil Appeals Nos. 1095-1097, 1021-1026, 134-L, 1138, 1154-1158, 1486, 1487 of 2018, Civil Petitions Nos. 4475, 4476 of 2018, 1362 of 2019, Criminal Original Petitions Nos. 14, 18, 25, 26 of 2019, Civil Review Petitions Nos. 20, 37 to 49, 77, 16, 17, 127 to 133 of 2019, Civil Miscellaneous Applications Nos. 462, 465, 508, 686, 1085, 1970, 1974, 1976, 1982, 2050, 2619, 2623, 2659, 2660, 2664, 2875, 2880 of 2019, 8466 and 8806 of 2018, decided on 12th June, 2019.

Per Ijaz ul Ahsan, J; Asif Saeed Khan Khosa, CJ agreeing; Faisal Arab, J dissenting only to the extent of Rule 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005

(a) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7A [as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, (VIII of 2017)]---Not-for-profit private schools in province of Punjab---Academic fees, increase in---Cap on increase in school fees under S. 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 ('the Ordinance') was also applicable to not-for-profit schools---Said Ordinance did not contain any such distinction between for-profit and not-for-profit schools---Had the Legislature intended to create such distinction, it would have specifically mentioned so---Applying the settled rules of interpretation, something which was conspicuously absent could not be read into the Ordinance---Only schools exempt from such limitation/cap were those charging monthly fees from a class of students at a rate which was less than four thousand rupees per month inclusive of the increase in fee.

(b) Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---

----Rr. 7(3) & 7(4)---Private schools in province of Sindh---Tuition fees, increase in---Cap on increase in fees under R. 7 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 ("the Rules')---Said cap was not limited only to tuition fees as the lawmaker had not specifically used the word 'tuition fee' and instead used the word 'fee'---Interpreting 'fee' to mean 'tuition fee' only, would render the parts of the R. 7 redundant as it would open the possibility of institutions misusing R. 7(4) to exorbitantly increase any fee other than tuition fee in order to compensate for the reduction in income as a result of the cap, thereby essentially extracting tuition fee under the garb of a new head under R. 7(4)---Rule 7(4) seemed to apply to situations where institutions wished to add any new fee head to their fee structure/schedule subject to the approval of the Registering Authority---Once a new head was added, it too, would be subject to the conditions that it shall not be increased at any time during the academic year and only up to five percent of the last fee schedule, subject to proper justification and approval of the Registering Authority---Supreme Court directed that institutions were to ensure that all the conditions of admission and the approved fee schedule were printed on the prospectus or on the admission form and provided to the parents or guardians of students at the time of the admission, and that admission fee was charged from the student only at the time of his first admission into the institution which shall not be more than three months' tuition fees of the respective class in which the student was admitted.

(c) Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---

----R. 7(4)---Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002), Preamble---Private schools in province of Sindh---Fee, charges or voluntary donation charged by institutions on account of any development project/activity---Costs of 'development project' and 'development activity'---Meaning---Such costs were to be borne by the institution---Since the terms 'development project' and 'development activity' had not been defined either in the Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, or the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, as per the settled canons of interpretation, they shall be construed in accordance with their ordinary meaning which were projects or activities pertaining to construction, redevelopment, reconstruction, or rehabilitation of an institution's facilities.

(d) Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---

----R. 10---Private schools in province of Sindh---Minimum salary and allowances of a full-time teacher with twelve months of continuous service---Scope---Minimum salary of teachers under R. 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 ('the Rules') was not a blanket rule as conditions had been provided in R. 10 itself---First, it was not only the salary but salary combined with allowances which must not be less than four times the monthly fee of a single student of the highest class charged by the institution; secondly, said rule only applied to full time teachers with twelve months of continuous service; and, thirdly, institutions run by trusts or communities were excluded from such requirement as they were only required to ensure that the pay scale of their teaching staff was at par with the respective Government pay scales.

(e) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Reasonable restrictions---Scope of Art. 18 of the Constitution and reasonable restrictions thereon as laid down by the Superior Courts stated.

Following is the scope of Article 18 of the Constitution and reasonable restrictions thereon as laid down by the superior Courts:

i. Article 18 conferred upon a citizen a right to freedom of trade, business or professions which was designed to enable the citizen to explore and adopt the best for his future, means of living and earning, and for the expression and recognition of his skills and abilities;

ii. However, said right was not absolute, unqualified or unfettered, but subject to regulation and reasonable restrictions which may be imposed by law in the larger interests of the society or for public welfare;

iii. The word 'qualification' had been used to confer a right upon a citizen to enter upon any lawful profession or occupation and not, to conduct any unlawful trade or business;

iv. The word 'lawful' qualified the right of the citizen in the relevant field and envisaged that the State could by 1aw ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance meant anything forbidden by law;

v. The provisions that a citizen 'possessing such qualifications, if any, as may be provided by law' and 'the regulation of any trade or profession by a system of licensing' empowered the Legislature and the authorities concerned to impose restrictions on the exercise of the right;

vi. Although 'reasonable restrictions' did not feature in Article 18, this did not mean that imposition of unreasonable restrictions was permissible under the Constitution;

vii. Licensing system was itself a restraint on trade, but the Constitution empowered the Government to impose reasonable restrictions. Reasonable restrictions authorized by the Constitution did not negate the Constitutional rights of a citizen to do business unhindered, without any condition;

viii. A reasonable classification was always considered to be within the framework of the fundamental right;

ix. The measure of reasonableness in the Constitution was provided by the concept of 'regulation', thus the restrictions should be consistent with the purpose of 'regulation' and not so unreasonable as to be in excess of it;

x. Reasonable restriction did not mean prohibition or prevention completely;

xi. If restrictions were to be imposed to regulate such trade or business, those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade;

xii. The restriction must be reasonable and bear true relation to 'trade' or 'profession' and for the purposes of promoting general welfare;

xiii. By qualifying the right to business and trade, the Constitution makers wanted to create a balance between the societal needs and the rights of an individual;

xiv. Under the Constitution, a proper balance was intended to be maintained between the exercise of the right conferred by Article 18 of the Constitution and the interests of the citizen in the exercise of his right to acquire, hold or dispose of his property to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of a right must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen;

xv. The validity of the prescribed qualifications or restrictions could be examined by the superior Courts in exercise of the power of judicial review on the touchstone of other fundamental rights, including Article 18 and other provisions of the Constitution and the law;

xvi. It must be shown in a concrete manner as to how the restrictions imposed were in excess of the object or the actual limits of regulation; and

xvii. If the restrictions appeared to be not only arbitrary but oppressive in nature and tended to deprive the citizens from enjoying the fundamental right of freedom of trade and business as per Article 18 of the Constitution, then it became the Court's duty to see the nature of the restrictions and procedure prescribed therein for regulating the trade and if it came to the conclusion that the restrictions were not reasonable then the same were bound to be struck down. [pp. 1807, 1824] E & F

Shahabuddin and another v. Pakistan and another PLD 1957 (WP) Kar. 854; Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527; Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667; Administrator, Market Committee, Kasur and 3 others v. Muhammad Sharif 1994 SCMR 1048; K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zia Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Haji Mullah Noor Ullah v. Secretary Mines and Minerals and 3 others 2015 YLR 2349; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Messrs D. S. Textile Mills Limited v Federation of Pakistan and others PLD 2016 Lah. 355; Tariq Khan Mazari and 3 others v Government of Punjab through Secretary Industries and 3 others PLD 2016 SC 778; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692 ref.

(f) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----Preamble---Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002), Preamble---Constitution of Pakistan, Art. 18---Private education service industry---Business and trade within the meaning of Art. 18 of the Constitution---Regulation by licensing---Private educational services industry constituted 'business' under Art. 18 of the Constitution which was like any commercial activity for provision of services---Private educational services industry also constituted 'trade' and therefore could be subject to regulation by a licensing system under proviso (a) to Art. 18 of the Constitution.

(g) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7A [as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017]---Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, R. 7(3)---Constitution of Pakistan, Arts. 9, 18, 23, 24 & 25A---Private schools---Cap on increase in school fees under S. 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---Vires of---[Per Ijaz ul Ahsan, J (Majority view): While the citizens of the country had the right to conduct business relating to the private educational services industry in order to earn money, such right was not absolute or unfettered---By virtue of a licensing system, the State was empowered to regulate the exercise of such right and hence, could impose certain restrictions---Power to regulate included the power to regulate and control prices and matters related and incidental thereto---Such power had to be exercised fairly and reasonably and was justiciable on the touchstone inter alia of being unreasonable or arbitrary, the onus being on the person alleging un-reasonability or arbitrariness---Impugned laws in the Provinces of Punjab and Sindh [i.e. Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, respectively] both aimed to give the Government control over unrecognized private educational institutions by providing for a system of registration and to regulate various matters relating to private educational institutions including, but not limited to, school fees and staff salaries by the respective Government or Registering Authorities---Said laws had been put in place to curb the tendency on the part of private education sector to generate disproportionately large amounts of profit at the expense of students and their parents, as indicated by the Auditor General's report, through exploitation of the unfortunate situation where high quality education was scarce due to lack of resources or initiative on behalf of the State, therefore, it could not be said that these laws were akin to punishing the private sector for the delinquency of the State in providing education to the children of the country---Restrictions put in place by the impugned laws aimed to strike a balance between the exercise of the right to conduct business in the educational services industry by citizens on the one hand and the interests of the community, i.e. the students enrolled in private educational institutions and their parents and teachers, on the other---Furthermore, the restrictions placed by the impugned laws did not constitute complete prohibition or prevention---Revenue cap regulation was not a concept unknown to legal system of Pakistan---Whole purpose of revenue cap regulation was to limit the total amount of revenue that a firm operating in a particular industry with no or very few competitors could earn---In economic theory, such regulation was employed as an incentive to reach a desired outcome for society which in the present case was the provision of education that was accessible and did not become inaccessible by virtue of exorbitant and unreasonable increase in school fees---While such regulation could be adopted by governments and regulators in any industry, this was true more so for utilities and essential services that were intrinsically linked to fundamental rights in which the objective was availability and affordability of the utility or service while ensuring quality---In the present case, it was the right to education which was in issue and which had been recognized as a fundamental right under Arts. 9 & 25A of the Constitution---State had a duty to guarantee such right which it was aiming to do through revenue cap regulation---Private schools had not been able to show in a concrete and material manner as to how the cap on increase in fees had transgressed constitutional principles or was in excess of the object or the actual limits of the regulation---Since the schools failed to show that the impugned laws prima facie violated the right under Art. 18 of the Constitution as being outside the scope of reasonable restrictions, the burden never shifted onto the State to show that the said laws came within the permissible limits of reasonable restrictions---In the facts and circumstances of the case, the restriction in the form of caps in increase of fees was not unreasonable---Section 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 was intra vires the Constitution and did not violate Arts. 18, 23, 24 or 25A thereof---Similarly R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 did not merit any interference---[Per Faisal Arab, J, dissenting only to the extent of R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 (Minority view): Only object of the law should be to check profiteering after students were admitted in schools, but when the fee of any particular service was regulated in a manner that had the potential of gradually eating-up legitimate margins of profit, it made businesses compromise on their quality lest they would run into losses which in turn led to layoffs or their eventual closure---To allow increase in tuition fee was not something that was to be equated with some concession or benefit granted by the State as it was mainly intended to compensate for the diminution in the purchasing power of currency of the country---Revision in tuition fee should be solely intended to meet the ever increasing cost of running of a school and at the same time persevering reasonable margin of profit---Limiting the raise in school fees to 5% only under R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 ('the 2005 Rules'), would be too harsh a financial restriction as it did not fully take care of the cost of running a school in comparison to the cost of its previous academic year---Such fact was evident from the value which the currency of the country had consistently been shedding in any five year period---Looking from such angle too, the arbitrarily determined cap of 5% imposed under R. 7(3) would certainly act as an unreasonable restriction on carrying on a lawful business---Inbuilt cumbersome process to seek increase in tuition fee under R. 7(3) also amounted to unreasonable restriction---In view of the arbitrary cap of 5% increase in fee imposed by R. 7(3), there was a strong possibility that many of the private schools in Sindh at a certain point in time may not be able to fully absorb the increase in the cost of running a school or the cost of the facilities provided to the students---Consequently the existing private schools may start closing down or the number of their branches may dwindle which in turn would make it very difficult to cope with the ever increasing demand for good quality educational institutions---In the present case no one had argued that any cartel existed that did not leave much choice with the parents but to admit their children in a particular set of school systems only, therefore, there existed no monopoly in the fixation of tuition fees---Raising the cap of 5% provided in R. 7(3) to an automatic increase upto 8% in an academic year without recourse to Registering Authority would bring it closer to the ground realities and within the limits of reasonableness and at the same time save the department and the schools much of the inconvenience in the periodical revision of tuition fees---His Lordship directed the [Sindh] Provincial Government to amend R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 accordingly within a period of two months]

Muhammad Kowkab Iqbal and another v Government of Pakistan through Secretary Cabinet Division, Islamabad and others PLD 2015 SC 1210; Petition regarding miserable condition of the schools: In the matter of 2014 SCMR 396; Rana Aamer Raza Ashfaq and another v Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 and Fiaqat Hussain and others v Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 ref.

(h) Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---

----R. 10---Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002), Preamble---Constitution of Pakistan, Arts. 3, 9 & 18---Private schools in province of Sindh---Minimum salary and allowances of a full-time teacher with twelve months of continuous service prescribed under R. 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---Vires of---Concept of a minimum wage which was, through a formula, linked to a source of revenue was not an alien concept in legal system of Pakistan---Such concept aimed to deal with the issue of the right to earn a livelihood under Art. 9 of the Constitution and the right to not be exploited under Art. 3 of the Constitution which was the duty of the State to ensure---To such end, it was necessary that the Government or Registering Authority had sufficient discretion and the private educational institutions were subjected to such regulation, restriction or control in order to carry out the purposes and policy of the respective laws---Private schools had not been able to show in a concrete and material manner as to how the prescribed minimum salary for teachers had transgressed constitutional principles or was in excess of the object or the actual limits of the regulation---Since the schools failed to show that the impugned law [i.e. R. 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005] prima facie violated the right under Art. 18 of the Constitution as being outside the scope of reasonable restrictions, the burden never shifted onto the State to show that the said Rules came within the permissible limits of reasonable restrictions---In the facts and circumstances of the case, the restriction in the form minimum salary for teachers was not unreasonable---Rule 10 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 was intra vires the Sindh Private Education Institutions (Regulation and Control) Ordinance, 2001, and the Constitution.

All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

(i) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7A [as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017]---Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, R. 7(3)---Private schools---Cap on increase in school fees under S. 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and R. 7(3) of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---Directions given by the Supreme Court with respect to cap on increase in school fees provided.

Following are the directions given by the Supreme Court with respect to cap on increase in school fees:

(i) Through an interim order dated 30-12-2018 the Supreme Court had directed all educational institutions receiving fees in excess of Rs.5,000/- per month to reduce their fee by 20%. Said amounts equivalent to 20% of fee(reduced under the interim order) or any other amount shall not be recovered as arrears for any reason or under any circumstances.

(ii) Since schools had excessively increased fees since the year 2017 in violation of the law, all such increases were to be struck down. It would be deemed that there was no increase in fee since 2017 and fees were frozen at the rates prevailing in January, 2017.

(iii) Schools fees should be recalculated using the fee prevailing in 2017 as the base fee in accordance with the provisions of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, respectively (adding annual increases permitted by the law/rules/regulations) till 2019 and onwards. The process of recalculation shall be supervised by the regulators and only the fee approved by them shall be treated as the chargeable fee.

(iv) Any excess fee found to have been charged shall be adjusted in the future fee.

(v) The Regulators shall closely monitor the fee being charged by private schools to ensure strict compliance with the law and the rules/regulations. Complaint cells shall be setup to deal with complaints arising out of increase in fee in violation of the law/rules/regulations.

(vi) All schools shall collect the fees, strictly in accordance with the procedure and timeframe provided by the law, the rules and regulations including, but not limited to the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, as amended by the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act, 2017 and the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005.

Per Faisal Arab, J

(j) Vires of legislation---

----Where a Rule had the effect of being an unreasonable restriction, it could be struck down.

Ahmed Hassan v. Government of Punjab PLD 2004 SC 694 ref.

Shahid Hamid, Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal Siddiqui, Advocate Supreme Court, Aftab Alam Yasir, Advocate Supreme Court, Hassan Nawaz Makhdoom, Advocate Supreme Court, Hamid Ali Shah, Advocate Supreme Court, Muhammad Ali Raza, Advocate Supreme Court, Ms. Ayesha Hamid, Advocate Supreme Court, Ms. Shireen Imran, Advocate Supreme Court, Rashid Mehmood Sindhu, Advocate Supreme Court, Syed Faisal Hussain Naqvi, Advocate Supreme Court, Shahzad Ata Elahi, Advocate Supreme Court, Salim-ur-Rehman, Advocate Supreme Court, Muhammad Ikram Ch., Advocate Supreme Court, Fauzi Zafar, Advocate Supreme Court, Taffazul Haider Rizvi, Advocate Supreme Court, Khurram Mumtaz, Advocate Supreme Court, Sardar Muhammad Ajaz Khan, Advocate Supreme Court, Zaheer Bashir Ansari, Advocate Supreme Court, Sharjeel Adnan Sheikh, Advocate Supreme Court, Abid Hussain Chatta, Advocate Supreme Court, Barrister Haroon Mumtaz, Advocate Supreme Court, Mudassar Khalid Abbasi, Advocate Supreme Court, Khawaja Ahmad Hosain, Advocate Supreme Court, Rashid Hanif, Advocate Supreme Court, Muhammad Imtiaz Khan, Advocate Supreme Court, Ejaz Mehmood Ch., Advocate Supreme Court, Maqbool Ahmed Sheikh, Advocate Supreme Court, Iqbal Javed Dhallon, Advocate Supreme Court, Riasat Ali Gondal, Advocate Supreme Court, Barrister Suleman Akram Raja, Advocate Supreme Court, Muhammad Azhar Siddique, Advocate Supreme Court, Ch. Hafeez Ullah Yaqoob, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, Muhammad Sharif Janjua, Advocate-on-Record, Muhammad Kassim Mirjat, Advocate-on-Record, Ahmed Nawaz Ch., Advocate-on-Record and Aman Naseer, Advocate in attendance.

Rana Shamshad Khan, Additional Advocate-General, Punjab, Abdul Latif Khan Yousafzai, Advocate-General, Khyber Pakhtunkhwa, Barrister Qasim Wadud, Additional Advocate-General, Khyber Pakhtunkhwa, Salman Talib-ud-Din, Advocate-General, Sindh, Barrister Shabbir Shah, Additional Advocate-General, Sindh, Sajid Ilyas Bhatti, Deputy Attorney-General for Pakistan, Arbab Tahir Kasi, Advocate-General, Balochistan, Muhammad Ayaz Khan Swati, Additional Advocate-General, Balochistan, Tariq Mehmood Jehangiri, Advocate-General, Islamabad, Barrister Qasim Chohan, Additional Advocate-General, Punjab, Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa in attendance.

Ahmed Hussain Rana and Jessam Ubaid in person.

Muhammad Javed Chohan, Law Officer (ED), Government of Punjab.

Qazi Shahid Pervez, Secretary Schools, Sindh.

Humayun Akhtar Sahi, Law Officer, Punjab.

Imtiaz Ali Qureshi, Chairman PEIRA.

Zubair Khan Shahid, D.S. Education, Lahore and Muhammad Ikram Abbasi, L.O.

Dr. Mansoob Hussain Siddiqui, D.G. Private Schools, Government of Sindh.

Muhammad Tajasib Minhas and Umair Ahmed, representative of parents of the students from Lahore.

Athar Hussain, father of a student, Islamabad.

2019 S C M R 1873

[Supreme Court of Pakistan]

Present: Faisal Arab, Sajjad Ali Shah and Munib Akhtar, JJ

Mrs. ASMA HASSAN and another---Petitioners

Versus

ASKARI BANK LIMITED---Respondent

Civil Petition No. 436-K of 2019, decided on 8th August, 2019.

(Against the judgment dated 31.05.2019 passed by the High Court of Sindh, Karachi in First Appeal No. 82 of 2018)

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

----S. 9---Suit for recovery of loan---Mark-up based running finance facility---Mark-up allowed only till date of repayment of amount---Recovery suit filed by respondent Bank was decreed for the principal amount along with mark-up that was chargeable under the agreement upto 31.12.2010---Mark-up beyond such period though was claimed in the suit but was not granted, and only cost of funds was allowed to be recovered beyond such period---Held, that the contract on the basis of which financial facility was lastly availed was executed on 03.03.2010, under which the amount was repayable by 31.12.2010, hence the Banking Court rightly allowed claim of mark-up only upto 31.12.2010 and beyond such period only cost of funds was awarded---Petition for leave to appeal was dismissed.

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

----S. 9---Suit for recovery of loan---Plea of forged documents negated by admission---Petitioner-customer contended that the banking suit had been filed on basis of forged documents---Held, that record showed that petitioner had admitted availing the financial facility in question and there was not specific denial as to the quantum of financial facility nor any calculation error in the statement of accounts had been pointed nor any entry in the statement of accounts was questioned---Petition for leave to appeal was dismissed.

Sathi M. Ishaque, Advocate Supreme Court assisted by Mrs. Shabana Ishaq, Advocate for Petitioners.

Nemo for Respondent.

2019 S C M R 1875

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, Sardar Tariq Masood, Faisal Arab, Ijaz ul Ahsan and Mazhar Alam Minakhel, JJ

JUSTICE QAZI FAEZ ISA and others---Petitioners

Versus

The PRESIDENT OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 17 and 19 of 2019, C.M.A. No. 7417 of 2019 in Constitutional Petition 19 of 2019 and Constitutional Petitions Nos. 20 - 26 of 2019, decided on 17th September, 2019.

Code of Conduct for Judges of the Supreme Court and High Courts---

----Art. IV---Constitution of Pakistan, Art. 209(8)---Recusal of a Judge from a case---Scope---Contingent, prospective and speculative interest in a case---No real likelihood of prejudice---Plea on behalf of petitioner-Judge that some Judges on the Bench hearing the present Constitutional petition may possibly benefit from dismissal of persent petition; that personal advantage would accrue to such Judges in the year 2023 in case the petitioner-Judge (was removed) and did not assume the office of Chief Justice of the Supreme Court---Held, that the involvement of any existing tangible, palpable, personal or pecuniary interest of a Judge in a matter justified his recusal---However, in the present case there was no involvement of any present, existing, immediate interest of any Judge on the Bench in the outcome of the present petition; that the possible benefit or interest that may accrue would, if at all, happen some four years later---Plea of petitioner-Judge was based on the contingent, prospective, speculative interest/possibility of the office of Chief Justice of the Supreme Court being not occupied by the petitioner in the year 2023 and for some of the Judges on the Bench to be awaiting that eventuality so as to benefit therefrom---Counsel for petitioner could not cite any precedent to hold such a future contingency to be a disqualifying factor for a Judge from hearing a case---Plea of petitioner-Judge was laden with contingencies and possibly failed the test of a "real likelihood" of prejudice from any Member of the present Bench---Nevertheless as a matter of grace for safeguarding the pristine purity, dignity and sanctity of the institution of the Supreme Court and for avoiding any motivated attribution, insinuation or discussion on the present case/subject by any quarters, two Members of the current Bench, for their personal reasons and of their own volition, decided to recuse themselves from present proceedings---Supreme Court directed that to further promote transparency in the proceedings and confidence of all persons interested in present proceedings, Full Court may be constituted in the present matter upon appropriate orders from the Chief Justice of the Supreme Court.

Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and in Re Pinochet (2000) 1 Appeal Cases 119 distinguished.

Independent Media Corporation v. Federation of Pakistan PLD 2014 SC 650 and Asif Ali Zardari v. State PLD 2001 SC 568 ref.

Munir A. Malik, Senior Advocate Supreme Court, Babar Sattar, Advocate Supreme Court, Tariq Mehmood, Advocate Supreme Court and Kosim Hussain, Advocate Supreme Court assisted by Barrister Rabi Bin Tariq for Petitioners (in Constitutional Petition No. 17 of 2019).

Nemo for Respondents (in Constitutional Petition No. 17 of 2019).

Salahuddin Ahmed, Advocate Supreme Court, Hamid Khan, Senior Advocate Supreme Court, Amanullah Kanrani, Advocate Supreme Court and Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No. 19 of 2019).

Nemo for Respondents (in Constitutional Petition No. 19 of 2019).

Bilal Hassan Minto, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 20 of 2019).

Nemo for Respondents (in Constitutional Petition No. 20 of 2019).

Syed Amjad Ali Shah, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitutional Petition No. 21 of 2019).

Nemo for Respondents (in Constitutional Petition No. 21 of 2019).

Naseebullah Tareen, Advocate Supreme Court and Syed Amjad Shah, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 22 of 2019).

Nemo for Respondents (in Constitutional Petition No. 22 of 2019).

Naseebullah Tareen, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 23 of 2019).

Nemo for Respondents (in Constitutional Petition No. 23 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No. 24 of 2019).

Nemo for Respondents (in Constitutional Petition No. 24 of 2019).

Petitioners in person (in Constitutional Petition No. 25 of 2019).

Nemo for Respondents (in Constitutional Petition No. 25 of 2019).

Raza Rabbani, Advocate Supreme Court and Saalim Salam Ansari, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 26 of 2019).

Nemo for Respondents.

2019 S C M R 1880

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

Hafiz MUHAMMAD IQBAL---Appellant

Versus

GUL-E-NASREEN and others---Respondents

Civil Appeal No. 2084 of 2016, decided on 28th June, 2019.

(On appeal against the judgment dated 29.06.2016 passed by the High Court of Sindh, Karachi in IInd Appeal No. 85 of 2011)

(a) Equity---

----Allotment of plots to army officer at concessionary price much lower than the market value---Price for plots paid by a civilian-third party (sister of the allottee)---Share of third party in plots only half---Plots were allotted to the defendant-army officer only for the reason that she was in service of the army---Such entitlement for allotment of plots by itself had its own value, apart from the price that was paid to the housing authority---Had the plots in question been purchased by the plaintiff/third party from the open market, the price would have been much higher than what was actually paid---Irrespective of the fact that it was held by the High Court that the plaintiff paid the entire amount to the housing authority for both the plots from her own source, the fact remained that the plots were allotted, not at their full market value but at concessionary price only for the reason that the defendant was in the service of the army---In such peculiar circumstances, the monetary contribution made by the plaintiff could not be regarded as the true reflection of the entire value of the suit property and hence could not be regarded as sufficient to treat the plaintiff as full owner of the suit property though she paid the entire price---Plaintiff's share in the plots on account of her financial contribution could not be considered more than half and the remaining half had to be attributed purely to the defendant on account of the privilege which she enjoyed in seeking allotment from the housing society at much lower rate than the true market value---Based on such distinction, the defendant was entitled to sell one of the two residential plots---In equity the defendant was justified in entering into a sale transaction for one of the plots---Appeal was partly allowed.

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

----S. 12---Suit for specific performance---Relief---Discretion of court---Scope---Agreement for sale of immoveable property---Ample discretion laid with the Court to deny the relief to a purchaser of an immovable property keeping in view the circumstances of each case---Purchaser could not claim specific performance of a contract as a matter of right even where it was lawful to do so.

Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344; Sirbaland v. Allah Loke 1996 SCMR 575; Muhammad Sharif v. Nabi Bakhsh 2012 SCMR 900; Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 828 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 ref.

Shahid Anwar Bajwa, Advocate Supreme Court for Appellant.

Jawad S. Sarwana, Advocate Supreme Court for Respondents Nos.1 and 2(c).

2019 S C M R 1885

[Supreme Court of Pakistan]

Present: Mushir Alam and Munib Akhtar, JJ

PROVINCE OF SINDH through Chief Secretary, Sindh and another---Petitioners

Versus

Messrs MICCON MINING AND INDUSTRIAL CONSULTANT---Respondent

Civil Petition No. 305-K of 2019, decided on 7th August, 2019.

(On appeal from the order dated 20.3.2019 passed by the High Court of Sindh, Karachi in H.C.A. No. 298 of 2018)

Constitution of Pakistan---

----Art. 140---Law Department Manual, 1938, Para. 1.18---Advocate-General Office---Assistant Advocate Generals---Lack of competency---Supreme Court observed that salaries to the Advocate Generals and Assistant Advocate Generals and other officers were paid through public money and it was expected that competent officers were appointed to defend the government interest---Supreme Court further observed with concern that (law) officers who come forward to defend the government cases before the Courts were not in fact as competent as required to be and when public servants were personally involved in the case the best of the best counsel were engaged---Petition for leave to appeal was dismissed with said observations.

Miran Shah, Additional A.-G. Sindh and Yasir Jan Baloch, Additional Secretary P&D Department Sindh for Petitioners.

Nemo for Respondent.

2019 S C M R 1914

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

HUSNAIN MUSTAFA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 716 of 2019, decided on 12th September, 2019.

(Against the impugned order dated 13.6.2019 passed by the Lahore High Court Lahore in Criminal Misc. No. 14549-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of--- Case of further inquiry--- Polygraph test---Transposing co-accused as prosecution witness---Accused was alleged to have committed murder of two minor children of the complainant---Complainant exonerated his former wife who was also arrayed as accused initially---Effect---Complainant was not an eye-witness of the crime and his initial belief that accused in connivance with his former wife had murdered the children was structured upon a suspicion---Complainant recalled before Trial Court substantial portion of his allegation while exonerating his former wife identically placed and subsequently inducted another co-accused who allegedly participated in the crime and that co-accused was also on bail---Polygraph test, a modern forensic method to unearth truth could establish a person's capacity to lie, however, findings thereof, could not be equated with admission of guilt--- Transposition of former wife as a witness with her failure to prosecute accused through private complaint constituted her departure from the scene and as such brought the case within the ambit of S. 497(2), Cr.P.C.---Statements of two prosecution witnesses recorded after an unexplained, inordinate delay also required evidential verification during trial---Horrors of a heinous crime could not impede release of accused on bail, if otherwise his guilt called for further probe nor bail could be withheld as a strategy for punishment---Bail was allowed in circumstances.

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

Muhammad Jaffar, D.P.G. Punjab, Akram and Tanvir, Sub-Inspectors for the State.

2019 S C M R 1917

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

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

Versus

Mst. SHAZIA MIR ARSHAD---Respondent

Civil Petition No. 2609 of 2017, decided on 19th March, 2018.

(Against the judgment dated 17.5.2017 passed by Lahore High Court, Lahore in Insurance Appeal No. 201 of 2016)

Insurance Ordinance (XXXIX of 2000)---

----Ss. 79 & 80---Constitution of Pakistan, Art. 154(3)---Insurance claim--- Mis-statement by deceased insured--- Proof--- Insurance Company was aggrieved of acceptance of insurance claim by Insurance Tribunal in favour of legal heirs of deceased insured---Plea raised by petitioner was that deceased insured fraudulently concealed his actual health state---Validity---Deceased insured was medically examined by a Medical Specialist as approved by petitioner company before the policy was issued---Opinion of Claim Examiner that deceased insured met with accident and fractured his leg in year 1994 had no correlation with cause of death mentioned in death certificate i.e. "Diabetes Mellitus CLO/recompensated liver"---Any subsequent investigation report after the claim was filed by legal heirs of the insured that he was suffering from various ailments and illnesses was not substantiated on record by producing cogent evidence---Insurance Tribunal had rightly held that previous ailments of the insured before the insurance policy were not proved---Supreme Court declined to interfere in the order passed by Insurance Tribunal---Petition for leave to appeal was dismissed in circumstances.

State Life Insurance Corporation of Pakistan and others v. Mst. Shazia Mir Arshad 2017 CLD 1483 and P.C. Chacko and another v. Chairman, Life Insurance Corporation of India and others (2008) 1 Supreme Court Cases 321 ref.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Liaqat Ali Butt, Advocate Supreme Court for Respondent.

2019 S C M R 1920

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

MUHAMMAD JAVED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 352 of 2017, decided on 25th June, 2018.

(Against the judgment dated 15.04.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1823 of 2010 and Criminal Revision No. 1057 of 2010)

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

----S. 376---Constitution of Pakistan, Art. 185(3)---Rape---Leave to appeal was granted by Supreme Court in order to reappraise evidence.

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

----S. 376---Rape---Reappraisal of evidence---Chemical Examiner Report---Scope---DNA Test, non-conducting of---Accused was convicted and sentenced by Trial Court for imprisonment for 10 years and High Court maintained the same---Validity---No semen grouping or DNA test was conducted so as to connect accused with semen found on vaginal swabs of alleged victim---Positive report of Chemical Examiner in such regard only showed that some sexual activity had taken place with alleged victim but perpetrator of that activity or nature of activity was against wishes of victim had never been established before Trial Court through any independent evidence whatsoever---Chemical Examiner report was not enough as medical evidence had shown no sign of rape having been committed with alleged victim---Alleged victim did not make any statement before Trial Court for whatever reason and Investigating Officer was also not examined before Trial Court--- Medical evidence showed no sign of commission of rape and eye-witnesses produced by prosecution were quite capable of making any statement to suit their convenience---Prosecution did not succeed in proving its case against accused beyond reasonable doubt---Supreme Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him and acquitted him of charge---Appeal was allowed in circumstances.

Hammad Akbar Wallana, Advocate Supreme Court for Appellant.

Ahmad Raza Gillani, Additional Prosecutor-General, Punjab for the State.

2019 S C M R 1923

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

AQSA SAFDAR and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 180-L and 209-L of 2018, decided on 23rd May, 2018.

(Against the orders of the Lahore High Court, Lahore dated 30.01.2018 and 19.02.2018 passed in Criminal Misc. No. 155930-B of 2018 and Criminal Misc. No. 119831-B of 2017)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 201, 302, 364, 148 & 149---Qatl-i-amd, kidnapping, disappearance of evidence and rioting armed with deadly weapons---Pre-arrest bail, grant of---Unrecovered dead body---Mala fide of complainant---Proof---Accused persons sought their bail before arrest on grounds that no direct evidence against them was available---Validity---Prima facie there was nothing on record which could confirm that alleged deceased had actually died because his dead body was not recovered by then---Mala fide on part of complainant to falsely implicate accused persons could not be ruled out---Pre-arrest bail of accused was confirmed in circumstances.

Muhammad Akbar Wallana, Advocate Supreme Court for Petitioners and Petitioners in person (in both petitions).

Ch. M. Sarwar Sidhu, Additional P.-G., Mirza Qadoos Baig, S.P. Investigation and Shaukat Ali, IO for the State.

Sabtain Akhtar Bukhari, Advocate Supreme Court for Respondent No. 2 (in both cases).

2019 S C M R 1925

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sarmad Jalal Osmany and Maqbool Baqar, JJ

FIRST DAWOOD INVESTMENT BANK LTD.---Petitioner

Versus

BANK ISLAMI PAKISTAN LTD.---Respondent

Civil Petition No. 686-K of 2013, decided on 10th June, 2015.

(On appeal from the Judgment/Order of the High Court of Sindh, Karachi, dated 31.10.2013, in Ist Appeal No. 17 of 2012)

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

----S. 9---Recovery of finance---Authority to institute suit---Defendant assailed judgment and decree passed against it by Banking Court on grounds that suit was filed by a person not duly authorized by Bank---Validity---Power of Attorney was issued on behalf of Credit Administration Department and Legal Department and was duly executed by Chief Executive Officer of Bank who had authorized two officers of Bank to file suits for recovery of money and other purposes---Words appearing in Power of Attorney in recitals, i.e., 'on behalf of Legal Department or Credit Administration Department' were merely explanatory, contention that powers of attorney were issued on behalf of the Credit Administration Department and the Legal Department and not by the Bank, thus was negated---Supreme Court declined to interfere in judgments and decrees passed by two courts below--- Petition for leave to appeal was dismissed in circumstances.

Trading Corporation of Pakistan Ltd. v. Haji Khuda Bux Amir Umar Ltd. 2007 YLR 1741; Ediga Seshanna and another v. R. Venkataramana Rao AIR 1941 Madras 60; Notified Area Committee, Okara v. Kidar Nath and others AIR 1935 Lah. 345 and Messrs Muhammad Siddiq Muhammad Umar and another v. The Australsia Bank Ltd. PLD 1966 SC 684 distinguished.

Abdul Hafeez Lakho, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Muharram G. Baloch, Advocate Supreme Court for Respondent.

2019 S C M R 1928

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and

Qazi Muhammad Amin Ahmed, JJ

ANTI-NARCOTICS FORCE through its Regional Director/Force Commander, A.N.F. Rawalpindi---Appellant

Versus

QASIM ALI---Respondent

Criminal Appeal No. 282 of 2019, decided on 21st August, 2019.

(Against the order dated 16.05.2019 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 283-B of 2019)

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

----Ss. 9(c), 15 & 51---Leave to appeal was granted by Supreme Court to consider grant of post-arrest bail to accused by Division Bench of High Court in respect of offences under Ss. 9(c) & 15 of Control of Narcotic Substances Act, 1997.

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

----Ss. 9(c), 15 & 51---Criminal Procedure Code (V of 1898), S. 497--- Recovery of narcotics---Bail, grant of---Accused was arrested with possession of multiple narcotic substances but was admitted to bail by High Court with reference to S. 497, Cr.P.C.---Validity---Provisions of S. 51 of Control of Narcotic Substances Act, 1997 ousted application of provisions of S. 497, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997---Any reference to S. 497(2), Cr.P.C. by High Court while admitting accused to bail was uncalled for---Supreme Court set aside order in question as merits of the case against accused were not attended by High Court at the time of passage of the same---Supreme Court, instead of cancelling bail of accused remanded matter to High Court to attend merits of the case with observations that during the interregnum the accused shall be deemed to be on ad interim post-arrest bail which the High Court may confirm or not---Appeal was allowed accordingly.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 distinguished.

Socha Gul v. The State 2015 SCMR 1077 ref.

Ch. Ehtisham-ul-Haq, Special Prosecutor, Anti-Narcotics Force, Syed Rifaqat Hussain Shah, Advocate-on-Record, Mirza Abdul Rehman, A.D. and Faizan Khawaja, I.O. for Appellant.

Syed Wusal-ul-Hassan Shah, Advocate Supreme Court for Respondent with Respondent in person.

2019 S C M R 1930

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Qazi Muhammad Amin Ahmed, JJ

FAZAL ELLAHI (DECEASED) through his Legal Heirs---Appellant

Versus

Mst. ZAINAB BI---Respondent

Civil Appeal No. 396 of 2018, decided on 24th September, 2019.

(Against the order dated 19.01.2017 passed by Lahore High Court Rawalpindi Bench in C.R. No. 199 of 2008)

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Punjab Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Mutation of sale, vires of---Fraud---Plaintiff assailed sale mutation in favour of defendant on ground of fraud---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of plaintiff---Single Judge of High Court maintained judgment and decree passed by Lower Appellate Court---Validity---Mutation by itself did not create title unless demonstrated to be backed by a valid transaction---Sale without vendor or by his duly authorized attorney/agent was a farce---Objection to limitation was beside mark in as much as reference to instituting a suit for possession through pre-emption by no other than plaintiff herself was a far cry as well and nothing was placed on record throughout proceedings before courts below to obliquely suggest that plaintiff ever instituted any suit for same piece of land---Documents placed for first time before Supreme Court were also devoid of relevant details--- Supreme Court declined to interfere in the matter as transaction in question was found with strappings of deceit---Fraud had vitiated both solemn proceedings and period of limitation did not embargo a justiciable claim directed against fraud---Appeal was dismissed in circumstances.

Syed Moazam Ali Rizvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Syed Hamid Ali Shah Bokhari, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent.

2019 S C M R 1933

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Mushir Alam, JJ

PAKISTAN AERONAUTICAL COMPLEX through Chairman and others---Petitioners

Versus

NAZAR-UL-ISLAM---Respondent

Civil Petition No. 4725 of 2018, decided on 19th August, 2019.

(Against the judgment dated 17.10.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No. 1647(R)CS/2016)

Pakistan Aeronautical Complex Board Ordinance (XXVIII of 2000)---

----S. 7---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Pakistan Aeronautical Complex Board Employees (Service) Rules, 2002, R. 2(i)---Standardization of Recruitment Rules for Appointment, Promotion and Transfer for PAC Employees at PAC Kamra Rules, 2012, R. 3---Promotion---Civil Servant was not promoted by authorities for post in question---Service Tribunal allowed appeal of civil servant---Civil Servant had given no option to be governed by Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---In absence of such option, civil servant had himself opted to appear in departmental promotion examination held under Standardization of Recruitment Rules for Appointment, Promotion and Transfer for PAC Employees at PAC Kamra Rules, 2012 and conceded to be governed by Rules made under provisions of Pakistan Aeronautical Complex Board Ordinance, 2000---Service Tribunal failed to consider matter so also applicable law while passing judgment in favour of civil servant---Supreme Court set aside judgment passed by Service Tribunal by converting petition for leave to appeal into appeal-- Appeal was allowed in circumstances.

Tahir Nadeem v. Chairman, Pakistan Aeronautical Complex Board, PAC Kamra and others C.P. No. 350 of 2016 ref.

Khurram Saeed, Additional Attorney General, M.S. Khattak, Advocate-on-Record, Sqn. Ldr. Nadeem and Sq. Ldr. Mansoor for Petitioners.

Muhammad Ramzan Khan, Advocate Supreme Court for Respondent.

2019 S C M R 1939

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

ROSHAN ALI BURIRO---Petitioner

Versus

Syed MURAD ALI SHAH and others---Respondents

Civil Petition No. 3632 of 2018, decided on 23rd January, 2019.

(On appeal from the judgment/order dated 20.7.2018 of the High Court of Sindh, Karachi passed in C.P. No. D-4653 of 2018)

Per Umar Ata Bandial, J; Munib Akhtar, J agreeing; Yahya Afridi, J, dissenting [Majority view]

Constitution of Pakistan---

----Arts. 62(1)(f), 63(1)(c) & 199---Qualification for Membership of Parliament---Dual nationality---Constitutional petition before High Court under Art. 199 of the Constitution---Maintainability---Petitioner was political opponent of respondent and was aggrieved of order passed by High Court setting aside disqualification of respondent for being a "dual national"---Validity---Petitioner had switched over his proceedings from remedies under Elections Act, 2017 to a Constitutional petition before High Court--- Such was a serious defect but could be justified for seeking a decree by a court of law that had met requirements of Art. 62(1)(f) of the Constitution---Constitutional petition filed by petitioner was actuated by personal political rivalry and not by public interest and thus lacked bona fide of petitioner---Constitutional petition filed before High Court, therefore, was not maintainable---No evidence was recorded by Returning Officer to sustain his findings nor he recorded reasons for invoking disqualification under Art. 62(1)(f) of the Constitution---Returning Officer was not a court of law but a statutory forum of limited jurisdiction---Condition that only a court of law could issue declaration of disqualification under Art. 62(1)(f) of the Constitution was not met---Election Tribunal did not declare respondent, directly or indirectly, to lack any qualities mentioned in Art. 62(1)(f) of the Constitution---No finding in terms of wrongs so identified in order of Returning Officer was recorded---Order passed by Returning Officer was ineffective to impose a disqualification under Art. 62(1)(f) of Constitution---Respondent did not suffer from lifetime bar under Art. 62(1)(f) of the Constitution and he was eligible to contest general elections of 2018---Petition was dismissed in circumstances.

Sher Alam Khan v. Abdul Munim and others PLD 2018 SC 449 and Maharunnisa v. Ghulam Sughran PLD 2016 SC 358 ref.

Kamal Hussain v. Sirajul Islam PLD 1969 SC 42 and Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 rel.

Per Yahya Afridi, J. [Minority view]

His lordship observed that: Matter of disqualified or unqualified public representative has to be addressed and checked, even if it requires the invoking of suo motu jurisdiction of Supreme Court under Article 184(3) of the Constitution. In view of the ratio in Sher Alam Khan v. Abdul Munim and others [PLD 2018 SC 449], as followed in Raja Shoukat Aziz Bhatti's case [PLD 2018 SC 578], not deciding the disqualification of the respondent for not being ameen, under clauses (d) and (f) of sub-Article (1) of Article 62 of the Constitution, on the touchstone of maintainability of the petitioner's constitutional petition before the Sindh High Court would not be legally correct.

His Lordship further observed that serious constitutional issues require to be addressed, inter alia:

i. that whether the disqualification of the private respondent, under clauses (d) and (f) of the sub-Article (1) of Article 62 of the Constitution was passed by a court of law or otherwise;

ii. that whether the disqualification of the private respondent, if any, would be permanent or otherwise in terms of the test laid down in Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others [PLD 2018 SC 405];

iii. that whether the lack of bona fide on the part of the petitioner in invoking the Constitutional jurisdiction of High Court under Article 199 of the Constitution and having an alternative remedy under the election laws rendered the petition maintainable or otherwise and that

iv. whether the disqualification of the private respondent could be ignored by Supreme Court, keeping in view the dicta laid down in Sher Alam Khan v. Abdul Munim and others [PLD 2018 SC 449], as followed in Raja Shoukat Aziz Bhatti's case [PLD 2018 SC 578]. [p. 1948] D

Sher Alam Khan v. Abdul Munim and others PLD 2018 SC 449 and Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 rel.

Hamid Khan, Senior Advocate Supreme Court and M. Waqar Rana, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2019 S C M R 1949

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and

Qazi Muhammad Amin Ahmed, JJ

RAJMEER KHAN and another---Appellants

Versus

NOOR-UL-HAQ and others---Respondents

Criminal Appeals Nos. 104-L of 2014 and 144-L of 2015, decided on 4th September, 2019.

(Against the judgment dated 10.09.2012 and 11.09.2013 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 859 and 1051 of 2008)

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

---Ss. 302 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Benefit of doubt---Case of free fight---Cross-version FIRs---Both parties approaching court with unclean hands--- Cross-version of the same incident was advanced by the accused party on the same day and according to the said cross-version it was the complainant party which had aggressed against the accused party--- One person had died and two others were injured from the side of the complainant party of the present FIR and three persons belonging to the accused party had been injured in the same incident---In the present FIR case out of the six accused persons facing trial only one person, i.e. the present accused had been convicted and sentenced whereas in the cross-version FIR out of the seven accused persons only one person had been convicted and sentenced---Many of the acquitted accused persons from both the sides had been attributed active and effective roles but the stories in that regard had been disbelieved by the courts below---Both the parties had tried to hide the truth and to minimize their own roles---Truth regarding the occurrence was very heavily mixed with something which was untrue and both the parties had not approached the court with clean hands---In such circumstances it was impossible to discern the truth from a heap of falsehood and, thus, the court was left with no other option but to acquit the present accused by extending the benefit of doubt to him---Appeal was allowed, the convictions and sentences 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. 337-D--- Jaifah--- Reappraisal of evidence---Appeal against acquittal---For acquitting the accused from the charge under S. 337-D, P.P.C. the High Court had observed that no report of an expert had been produced before the Trial Court and, thus, it was not medically clear as to whether the injury attracting the provisions of S. 337-D, P.P.C. sustained by the injured victim was a direct result of the injury caused by the accused to the victim or not---Such conclusion reached by the High Court vis-à-vis the offence under S. 337-D, P.P.C. was legally possible and, thus, no occasion was found for interference with the same--- Appeal against acquittal was dismissed accordingly.

Malik Matee Ullah, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Appellants (in both cases) and Appellant Mushtaq Khan in person.

Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab for the State (in both cases).

2019 S C M R 1952

[Supreme Court of Pakistan]

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

SELLING OF NATIONAL ASSETS INCLUDING PIA AT THROWAWAY PRICE: In the matter of

Human Rights Case No. 11827-S of 2018, decided on 3rd September, 2018.

(In the matter regarding Selling of National Assets including PIA at Throwaway Price)

(a) Constitution of Pakistan---

----Arts. 184(3)---Constitutional jurisdiction under Art. 184(3) of the Constitution--- Writ of quo warranto---Locus standi/"aggrieved person"---For issuance of a writ of quo warranto, person/petitioner laying information before Court need not be an aggrieved person.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Naseem Hijazi v. Province of Punjab 2000 SCMR 1720 and Hamdullah v. Saifullah Khan PLD 2007 SC 52 rel.

(b) Public Sector Companies (Corporate Governance) Rules, 2013---

----Rr. 5 & 2A---Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, R.2 & Sched.---Public sector companies---Recruitment and appointment---Appointment of Chief Executive Officer---Fit and proper criteria---Scope---Board of Directors of public sector company owed such company and stakeholders a fiduciary duty, performance whereof was solely for best interest of such company---Such Board of Directors, being responsible for planning, succession and appointment of a public sector company, had to evaluate a potential candidate for appointment on a fit and proper criteria, and must act independently, transparently, totally impartially and in an unbiased manner, so as to select the best and most suitable candidate strictly on merit---Suitability and eligibility of a candidate was ascertained through an objective procedure and appointment thereof needed to have nexus with object of the job.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 rel.

(c) Public Sector Companies (Corporate Governance) Rules, 2013---

----Rr. 5 & 2A---Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, Rr. 2 & Sched.---Constitution of Pakistan, Art. 184(3)---Public sector companies---Recruitment and appointment---Appointment of Chief Executive Officer ("CEO") of Public Sector Company---Fit and proper criteria---Evaluation and due diligence by the Board of Directors---Question before Supreme Court concerned purported irregularities identified in appointment of respondent as CEO of the Public Sector Company and as well as his lack of eligibility to hold said office---Held, that work experience of respondent was not in line with what was required by advertisement for the post and he had no experience in the relevant industry---Short-listing of candidates was to be conducted by the Board of Directors but was instead done by a "Selection Committee", consisting of Advisor to the Prime Minister, who was a stranger to the Board, and as such, the working constitution and members of said "Selection Committee" was, ex facie, a highly questionable and dubious exercise---Nothing on record showed that necessary due diligence per the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 was undertaken by the Board of Directors or whether fit and proper criteria was adhered to---Supreme Court observed that the appointment of the respondent was arbitrary, illegal and unfair and was in violation of the law and rules applicable thereto---Appointment in question was set aside with immediate effect.

Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Muhammad Naseem Hijazi v. Province of Punjab 2000 SCMR 1720; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 and Mustafa Impex v. Government of Pakistan and others PLD 2016 SC 808 rel.

(d) Public Sector Companies (Corporate Governance) Rules, 2013---

----Rr. 5 & 2A---Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, Rr. 2 & Sched.---Constitution of Pakistan, Art. 184(3)---Recruitment and appointment made to Public Sector Company---Constitutional jurisdiction under Art.184(3) of the Constitution---Writ of quo warranto---Scope---Constitutional challenge to recruitment and appointment made to public sector companies/ entities---Scope---Until and unless strict compliance with provisions of statutes and rules governing appointment to senior positions in public sector entities were adhered to in letter and spirit, such appointments would always be subject to challenge on ground of arbitrariness and non-compliance with law and settled principles---Personal bias, political affiliations and a lack of empathy, when displayed by those mandated to make such appointments, defeated all ideas, hopes and mechanisms of good governance.

Anwar Mansoor Khan, Attorney General for Pakistan, Syed Asghar Haider, P.G. NAB, Farid-ul-Hassan, Spl. Prosecutor, NAB, Syed Nayyar Abbas Rizvi, Addl. A.G.P. and Naeem Bukhari, Advocate Supreme Court.

Dr. Musharaf Cyan, C.E.O., PIACL (For PIA).

Ms. Asma Bajwa, Chief HR Officer, PIA and Bilal Hassan Minto, Advocate Supreme Court (for Mr. Shujaat Azeem).

Umar Lakhani, Advocate Supreme Court (in HRMA No.249/2018).

Raja Ikram Amin Minhas, Advocate Supreme Court (in HRMA-No.534/2018)

Kh. Azhar Rasheed, Advocate Supreme Court, Junaid Younis, Ex. M.D. PIACL, Nadeem Yousafzai, Ex-M.D. PIACL, Sardar Mehtab Abbasi, Ex-Advisor to PM on Aviation, Muhammad Saeed Tawana, Director Legal for Auditor General and Nayyar Hayat, Ex. M.D. PIACL.

2019 S C M R 1971

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD TARIQ RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 20 of 2018, decided on 9th October, 2019.

(Against judgment dated 19.01.2015 passed by Lahore High Court in Criminal Appeal No. 2264 of 2011 as well as CSR No. 46-T of 2011)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 295-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, blasphemy, acts of terrorism---Reappraisal of evidence---Prosecution's case was that the accused used blasphemous and derogatory language against a holy personage and when the deceased admonished him, the accused harboured a grudge due to which he murdered the deceased---Prosecution case was primarily structured upon the ocular account furnished by two witnesses, who ran a small grocery outlet in the village and were from the same neighbourhood, as such in the absence of strong and positive evidence, their presence at the crime scene could not be viewed with suspicion---On an independent analysis of their statements, both said witnesses were found in a comfortable unison on all the salient details of the occurrence as well as the issues collateral therewith---No reference of any enmity was made by the prosecution, which may have propelled the witnesses to falsely implicate the accused for the crime in a small locality within broad daylight---Weapon recovered on accused's disclosure was found consistent with the nature of injuries suffered by the deceased---Evidence on record pointed inexorably upon accused's culpability, leaving no space to entertain any hypothesis of his innocence, however, since charges of blasphemy could not be proved against the accused, the motive part of prosecution's case could not be established---Consequently, while maintaining accused's conviction under clause (b) of S. 302, P.P.C, he was acquitted from the charge under S. 7 of the Anti-Terrorism Act, 1997, however, amount of compensation and consequences in the event of default were kept intact.

Sagheer Ahmed Qadri, Advocate Supreme Court for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General Punjab for the State.

2019 S C M R 1973

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Yahya Afridi, JJ

Dr. ZULFIQAR AHMED MALIK---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division, Chairman FBR Islamabad and others ---Respondents

Civil Petition No. 2098 of 2019, decided on 31st May, 2019.

(Against the judgment dated 23.05.2019, passed by the Federal Service Tribunal, Islamabad in Appeal No. 543(R)CS/2019)

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

----R. 12A---Constitution of Pakistan, Art. 212(3)---Alteration in the date of birth of a civil servant---Applicability of R. 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Substantial question of law in terms of Art.212(3) of the Constitution---Scope---Appellant impugned order of Service Tribunal whereby his petition seeking change of his date of birth was dismissed--- Contention of appellant, inter alia, was that R. 12A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 could not be applied to the matter of his date of birth as doing so would be applying the same retrospectively--- Validity---- Question of retrospective applicability of R. 12A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 was not germane to the matter as the said Rule was made when appellant was already in service and he could not claim any vested right in Rules which were alterable by the Government and against which there was no embargo---Supreme Court observed that no substantial question of law of public importance in terms of Art. 212(3) of the Constitution was made out and leave to appeal was therefore refused.

Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359 rel.

Hasnain Ibrahim Kazmi, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioner.

2019 S C M R 1975

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

IZZAT ULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 83-P of 2013 and Jail Petition No. 474 of 2017, decided on 27th September, 2019.

(Against judgment dated 30.05.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 478-P of 2012 and Murder Reference No. 19-P of 2012)

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

----S. 9(c)---Recovery of narcotics---Reappraisal of evidence---Retracted confessional statement---Accused persons were arrested in possession of heroin in 20 packs, each weighing 1050 grams from secret cavity of their vehicle---Trial Court convicted both accused persons and sentenced one for death and other for imprisonment for life---High Court maintained conviction of both accused persons but altered death sentence into imprisonment for life---Validity---Confessional statement before judicial Magistrate, though retracted subsequently, presented formidable piece of evidence, inexorably pointed upon culpability of accused persons---Female accused made her disclosure within a small span of time soon after her arrest during her first appearance before Magistrate and male accused followed suit---Both accused after having been administered warnings and cautions, though disapprovingly on a printed format, nonetheless made statements found otherwise as voluntary, natural and truthful with relevant details compatible with salient features of case and brief interregnum had ruled out hypothesis of manipulation---Other pieces of evidence as independently sufficient to deliver home charge; forensic report confirmed lethal nature of substance recovered in a quantity that could not be possibly foisted in routine whereas, seizure of vehicle clinched the case---Supreme Court declined to interfere in exhaustive analysis of case of prosecution undertaken by two courts below which concurred in their conclusions regarding guilt of accused persons---Petition was dismissed in circumstances.

Altaf Samad, Advocate Supreme Court for Petitioner (in Criminal Petition No. 83-P of 2013).

Mrs. Farhana Naz Marwat, Advocate Supreme Court for Petitioner (in Jail Petition No. 474-P of 2017).

Zahid Yousaf Qureshi, Additional A.-G., Khyber Pakhtunkhwa for the State.

2019 S C M R 1978

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Maqbool Baqar and Sajjad Ali Shah, JJ

SAFDAR MEHMOOD and others---Appellants

Versus

TANVIR HUSSAIN and others---Respondents

Criminal Appeals Nos. 67 and 68 of 2019, decided on 29th April, 2019.

(Against the judgment dated 5.3.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1187 of 2009, Criminal Revision No. 817 of 2009 and Murder Reference No. 491 of 2009)

(a) Constitution of Pakistan---

----Art. 185(3)---Penal Code (XLV of 1860), S. 302(b)---Leave to appeal was granted by Supreme Court in order to reappraise evidence.

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

----Ss. 302(b) & 148---Qatl-i-amd and rioting armed with deadly weapons---Reappraisal of evidence---Benefit of doubt---Unexplained delay in postmortem examination---Effect---Motive, proof of---Benefit of doubt---Accused was convicted by Trial Court and sentenced to imprisonment for life---High Court partly allowed appeal filed by accused and set aside conviction and sentence awarded under S. 148, P.P.C.---Validity---Attribution of a specific injury to deceased having been caused by accused was a claim too tall to be accepted---Postmortem examination was conducted after about 19 hours of occurrence giving rise to an inference that time had been consumed by complainant party and local police for deliberations and for spreading of net wide so as to falsely implicate their adversaries---Two co-accused persons had already been acquitted by courts below and two of culprits who had opened assault and statedly caused specific injuries to deceased on his back had made themselves scarce and were declared proclaimed offenders--- Accused was not directly connected with motive setup by prosecution and noting was recovered from his custody during investigation and he was declared innocent---Courts below had wrongly concluded that prosecution had succeeded in proving its case against accused beyond reasonable doubt---Supreme Court extended benefit of doubt to accused, set aside conviction and sentence awarded by courts below and acquitted him of charge---Appeal was allowed.

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

----Ss. 302(b), 324 & 148---Qatl-i-amd, attempt to Qatl-i-amd and rioting armed with deadly weapons---Reappraisal of evidence---Benefit of doubt---Firearm injury, specifying of---Accused was convicted by Trial Court and sentenced to death---High Court maintained conviction but death sentence was converted into imprisonment for life---Complainant was aggrieved of reduction in sentence awarded to accused by High Court---Validity---Causing of firearm injury by accused to deceased on his back was an allegation which did not stand substantiated beyond reasonable doubt---Deceased received many firearm injuries on his back at hands of many culprits and in darkness of evening it was not possible to specify any particular injury to deceased on a particular part of his back and to attribute same to accused---Injury attributed to accused on right leg of injured prosecution witness was not on a vital part of body of victim and despite an opportunity being available to accused he did not repeat his fire on injured victim---Accused had accepted his conviction and sentence for offence under S. 324, P.P.C. recorded by High Court and had already served out sentence passed in such regard---Supreme Court at such belated stage declined to enhance sentence of accused as occurrence had taken place way back in year 2007, i.e., 12 years ago---Appeal was dismissed.

Muhammad Taqi Khan, Advocate Supreme Court for Appellants (in Crl. A. 67 of 2019).

Waqar Hassan Mir, Advocate Supreme Court for Appellants (in Crl. A. 68 of 2019).

Waqar Hassan Mir, Advocate Supreme Court for Respondent No.1 (in Crl. A. 67 of 2019).

Muhammad Taqi Khan, Advocate Supreme Court for the Complainants (in Crl. A. 68 of 2019).

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State (in both cases).

2019 S C M R 1982

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and

Qazi Muhammad Amin Ahmed, JJ

ALI RAZA alias PETER and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 145-L and 146-L of 2017, decided on 18th September, 2019.

(Against the judgment dated 07.12.2010 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 672 and 908 of 2005 and Murder Reference No. 416 of 2005)

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

----Art. 20---Criminal trial---Facts forming cause of the facts in issue---Scope---Where there are two parts of occurrence and first part of the occurrence is precursor in continuity to the second; such both occurrences are inseverably linked to each other, therefore, can be validly taken into consideration in view of the space provided under Art. 20 of Qanun-e-Shahadat,1984.

(b) Criminal trial---

----Court, duty of---In absence of whole truth, the Court must not be deterred by incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 rel.

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

----Arts. 164, 46-A & 78-A---Electronic Transactions Ordinance (LI of 2002), S. 29---Evidence through modern devises---Court invested with wide powers under Art. 164, Qanun-e-Shahadat, 1984, to make use of evidence generated by modern devices and techniques---Procedure to receive such evidence has been smoothened by the provisions of Arts.46A & 78A of Qanun-e-Shahadat, 1984, as well as provisions of Electronic Transactions Ordinance, 2002, subject to restrictions/ limitations provided therein.

Ishtiaq Ahmed Mirza and 2 others v. The Federation of Pakistan and others Constitutional Petitions Nos. 10, 11 and 12 of 2019 rel.

(d) Constitution of Pakistan---

----Art. 10-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Act of terrorism---Due process of law and right to fair trial---Scope---Sentencing offenders is a judicial province--- Accused of the most heinous or gruesome offence is entitled as of right to a fair trial by a tribunal designated by law with a meaningful opportunity to vindicate and defend his position both before prosecuting authority as well as the Court---Collective human wisdom, since times immemorial has not been able to evolve a better or more humane procedure to prosecute and convict offenders other than due process of law, with procedural safeguards under the Constitutional guarantees of fair trial, to hand down sentences mandated thereunder on the preponderance of legal evidence without compromising on the principle of inherent human dignity.

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

----S. 302(b) & (c)---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 10-A---Qatl-i-amd and act of terrorism---Reappraisal of evidence---Punishment---Street justice---Mob attack---Due process of law---Accused persons alleged to have committed double murder and two FIRs were registered of the occurrence---Trial Court convicted and sentenced the accused persons for qatl-i-amd under S.302(b), P.P.C.---Validity---Vendetta could not equate itself with justice as the same was devoid of solemnity inherent in the process of law, leaving an offender as a victim, an object of sympathy at the end of the day, without judicial certainty about his guilt---Accused persons could not be allowed to go scot free without a tag---Convictions and sentences recorded by Trial Court and upheld by High Court required a serious reconsideration---Peculiarity of the situation wherein the incident occurred, suggested that first part of the occurrence triggered the outrage, instantaneously swaying upon faculties of accused persons having no motive or axe to grind; it was that spontaneity whereunder the accused persons resorted to violence without premeditation and choice weapons and thus consequences of their transgression---Such act more aptly fell within the mischief of S. 302(c), P.P.C., a statutory substitute for erstwhile 304, P.P.C.---Supreme Court altered the conviction to one under S. 302(c), P.P.C. and accused persons were sentenced to imprisonment for ten years--- Appeal was dismissed.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Muhammad Mumtaz Khan v. The State 1999 SCMR 837; Azmat Ullah v. The State 2014 SCMR 1178; Zahid Rehman v. The State PLD 2015 SC 77; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Abdul Nabi v. The State 2017 SCMR 335 and Muhammad Qasim v. The State PLD 2018 SC 840 rel.

Syed Zahid Hussain Bokhari, Advocate Supreme Court, Muhammad Ahsan Bhoon, Advocate Supreme Court and Ms. Khalida Parveen, Advocate Supreme Court for Appellants.

Iftikhar-Ul-Haq Khan Sherwani, Advocate Supreme Court for the Complainant.

Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab for the State.

2019 S C M R 1989

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam, Umar Ata Bandial, Qazi Faez Isa and Munib Akhtar, JJ

ABBASI ENTERPRISES UNILEVER DISTRIBUTOR, HARIPUR and another---Appellants

Versus

COLLECTOR OF SALES TAX AND FEDERAL EXCISE, PESHAWAR and others---Respondents

Civil Appeal No. 733 of 2010, decided on 3rd April, 2019.

(On appeal from the judgment dated 28.7.2008 passed by the Islamabad High court in Tax Reference No. 5 of 2008)

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

----Ss. 11 & 36(3)--- Leave to appeal was granted by Supreme Court as leave had already been granted in similar matters raising various issues with regard to proper interpretation and application of S. 36(3) of Sales Tax Act, 1990 and also corresponding provisions in S. 11 of Sales Tax Act, 1990.

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

----S. 36(3) & Proviso---Extended period for issuance of show-cause notice---Scope---Precedent---Applicability---Taxpayer was aggrieved of show cause notice issued by authorities beyond period specified in law---Plea raised by authorities was that order of extension was made on 24-09-2010 whereas judgment in case titled 'Collector of Sales Tax Gujranwala v. Super Asia Muhammad Din and Sons and others' reported as 2017 SCMR 1427 was not applicable as it was given on 31.03.2017 and was not applicable to former---Validity---Supreme Court disapproved the plea raised by authorities---Law declared by Supreme Court as to proper interpretation and application of first proviso to S. 36(3) of Sales Tax Act, 1990 applied fully to the order of extension under consideration---Order of Collector was invalid and inoperative in law and as there was no lawful extension of time---Supreme Court observed that order-in-original should have been made by Additional Collector within 90 days of 13.06.2005, i.e., by 12.09.2005---Notice was issued beyond date and it was invalid and non est in law, therefore, same had to be quashed and forums of appeal including High Court in tax reference erred materially in failing to do so---Supreme Court quashed order-in-original and set aside judgment passed by High Court as well as decisions of departmental forums below---Appeal was allowed.

Collector of Sales Tax Gujranwala v. Super Asia Muhammad Din and Sons and others 2017 SCMR 1427 fol.

Farhat Nawaz Lodhi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Riaz Hussain Azam, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Mohyuddin Ismail, Commissioner I.R., RTO and Qasim Raza, Chief Legal, FBR for Respondents.

2019 S C M R 1994

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

WAJEEH-UL-HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 270-L of 2012, decided on 25th September, 2019.

(Against the judgment dated 29.09.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No.1356/2002 and Murder Reference No. 561/2002)

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

----Ss. 295-A, 295-C & 298-A---Blasphemy---Reappraisal of evidence---Extra-judicial confession--- Abscondence--- Effect--- Declaration of faith---Accused was alleged to have written letters to complainant carrying blasphemous contents---Accused remained absconder and had made an extrajudicial confession---Trial Court convicted the accused and sentenced him to death, which sentence was confirmed by the High Court---Validity---Contents of letters were the most grievously blasphemous, however, whether accused authored and dispatched letters and complainant received them in the manner as alleged in crime report and whether extrajudicial confession supported by expert's report constituted sufficient evidence to hand down penalty of death, were issues altogether different---Penalty of death was irreversible and warranted caution in the highest degree, before a convict was dispatched to gallows---One weak piece of evidence could not corroborate another weak piece of evidence---Absconsion could not be viewed as a proof for the crime---People stay away from law for a verity of reasons not necessarily compatible with hypothesis of guilt, to avoid impending wrath of opponents in hostile environments, more often than not compel even the innocent into recusal of safety---Declaration of faith by accused was to be preferred over divergent imputations---Citizen regardless of religion were equal before law and were entitled to equal protection thereof and it was so guaranteed under the Constitution---Criminal charge was to be essentially settled on positive proof alone and not on perceptional or optical paradigms and the same was out of the sight---Supreme Court by extending benefit of doubt, set aside conviction and sentence awarded to accused, as it was grievously unsafe to maintain the same without potential risk of error and accused was acquitted of the charge---Appeal was allowed.

(b) Criminal trial---

----Extrajudicial confession---Scope---Evidence of extra judicial confession is inherently weak and does not present a brighter picture either.

(c) Evidence---

----Handwriting Expert---Scope---Evidence of Handwriting Expert is viewed as inherently weak.

Mamtaj Ali v. The State PLD 1961 Dacca 573; Saeed Ahmed v. The State PLD 2003 SC 389; Syed Muhammad Umer Shah v. The State 2004 SCMR 1859; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 196 and Qazi Abdul Ali and others v. Khawaja Aftab Ahmad 2015 SCMR 184 rel.

Syed Almas Haider Kazmi, Advocate Supreme Court and Sheikh Masood Akhtar, Advocate-on-Record for Appellant.

Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab for the State.

Ghulam Mustafa Ch., Advocate Supreme Court for the Complainant.

2019 S C M R 2000

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Faisal Arab and Yahya Afridi, JJ

MANZOOR AHMED SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 112-L, 113-L and 114-L of 2015 and Criminal Miscellaneous Applications Nos. 341-L and 342-L of 2018, decided on 12th September, 2019.

(Against the judgment dated 19.09.2013 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 63-J of 2011 and 1810 of 2009 and Murder Reference No. 479 of 2009)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd and common intention---Reappraisal of evidence---Compounding of offence---Common intention---Proof---Motive not proved---Crime empties non-recovery of---Effect---Accused persons were convicted by Trial Court and sentenced to death---High Court maintained conviction but altered death sentence to imprisonment for life---Plea raised by accused persons was that they had entered into compromise with legal heirs of deceased---Validity---Accused persons were not connected with motive set up by prosecution and motive was also ruled out of consideration by High Court---Alleged recoveries affected from accused persons during investigation were legally inconsequential because no crime empty was secured from place of occurrence connecting recovered firearms with alleged offences---In absence of proof of alleged motive sharing of common intention by accused persons with their co-accused for purposes of killing two persons and injuring two others was quite suspect---Something had happened at spot leading to occurrence in question and it could well be that in such a sudden occurrence every accused person might have been responsible for his own individual act---No evidence was available regarding sharing of common intention by accused persons with their co-accused---Supreme Court set aside conviction and sentence awarded to accused persons for murder as deceased had not been harmed by accused persons at all---Supreme Court accepted compromise between the parties---Appeal was allowed.

Appellants in person (in Cr. A. 112-L of 2015).

Hamayun Rasheed, Advocate Supreme Court for Appellants (in Cr. As. 113-L and 114-L of 2015).

Naveed A. Khawaja, Advocate Supreme Court for Appellants.

Syed Karamat Ali Naqvi, Advocate Supreme Court for the Complainant (in Cr. M. As. 341-L and 342-L of 2018).

Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab for the State (in all cases).

2019 S C M R 2004

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Syed Mansoor Ali Shah and

Qazi Muhammad Amin Ahmed, JJ

ZAHIR SHAH alias SHAT---Appellant

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa---Respondent

Criminal Appeal No. 10-P of 2017, decided on 2nd May, 2019.

(On appeal from the judgment of the Peshawar High Court Peshawar, dated 19.11.2015 passed in Crl. A. No. 133-P of 2015)

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

----Ss. 9(c) & 36---Penal Code (XLV of 1860), S. 489-B---Recovery of narcotic substance and using counterfeit currency notes as genuine---Reappraisal of evidence--- Report of Government Analyst---Incriminating articles, safe custody of---Proof---Chars weighing 10 kilograms was recovered from accused who was convicted by Trial Court and was sentenced to imprisonment for ten years, which was maintained by High Court---Prosecution did not produce that constable who delivered sealed parcel of narcotic substance to Forensic Science Laboratory---Validity---Safe custody and safe transmission of drugs from the spot of recovery till its receipt by Narcotics Testing Laboratory must be satisfactorily established---Such chain of custody was fundamental as report of Government Analyst was the main evidence for the purpose of conviction---Prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure---Any break in the chain of custody i.e. safe custody or safe transmission would impair and vitiate the conclusiveness and reliability of the Report of Government Analyst thus rendering it incapable of sustaining conviction---Supreme Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed. [p. 2005] A

State v. Imam Bakhsh 2018 SCMR 2039 rel.

Noor Alam Khan, Advocate Supreme Court for Appellant.

Mujahid Ali Khan, Additional A.-G. Khyber Pakhtunkwa for the State.

2019 S C M R 2006

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUNIR AHMED and others---Petitioners

Versus

The STATE and others---Respondents

Jail Petitions Nos. 467, 613 and Criminal Petition No. 693 of 2017, decided on 9th October, 2019.

(Against judgment dated 16.03.2017 passed by Lahore High Court Multan Bench Multan in Criminal Appeal No. 698 of 2015 as well as Nos. 6, 9, 10 and 12 of 2016 and Criminal Revision No. 98 of 2016)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Exaggerated number of assailants implicated---Co-accused persons acquitted on same set of evidence---Large number of persons, including unknown persons, were implicated for the murderous assault---Receipt of single fire shot by each deceased as well as the injured person belied the hypothesis of massive indiscriminate firing by each member of the unlawful assembly comprising of no less than twenty-six (26) persons---Precise attribution of fire shots by the complainant party in such an extreme crisis situation, was a feat, beyond human capacity---Besides such attribution of fire-shots did not find support from the forensics---Substantial number of accused persons were let off at the investigative stage, on the basis of an affidavit sworn by no other than the injured himself---Prosecution's case was further weakened by acquittal of four accused persons by the Trial Court, framed through the same set of evidence as other convicted accused persons---At appellate stage the High Court acquitted all the accused persons except the present three accused---Present accused, though distinctly assigned single shot qua the deceased and the injured, nonetheless, were identically placed with those accused persons who had been acquitted---Totality of circumstances, unambiguously suggested that the occurrence did not take place in the manner as alleged in the crime report---Argument that number of assailants had been hugely exaggerated, was not entirely beside the mark and called for caution---Accused persons were acquitted of the charge of murder---Petitions were converted into appeals and allowed accordingly.

Nemo for Petitioners (in J.P. No. 613 of 2017).

Dil Muhammad Khan Alizai, Advocate Supreme Court for Petitioners (in J.P. No. 467 of 2017).

Shah Khawar, Advocate Supreme Court for Petitioners (in Cr. P. No. 693 of 2017).

Mirza Abid Majeed, Deputy Prosecutor General Punjab for the State.

2019 S C M R 2009

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Maqbool Baqar and Syed Mansoor Ali Shah, JJ

NAWAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 159 of 2015, decided on 14th February, 2019.

(Against the judgment dated 26.09.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 506 of 2012)

(a) Constitution of Pakistan---

----Art. 185(3)---Penal Code (XLV of 1860), S. 302(b)---Leave to appeal was granted by Supreme Court to consider question regarding sentence of death to accused.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 544-A---Qatl-i-amd---Reappraisal of evidence---Compensation---Benefit of doubt---Motive not proved---Effect---Accused was convicted by Trial Court and sentenced to death on four counts for committing murder of four persons---High Court maintained conviction and sentence awarded to accused by Trial Court---Prosecution asserted motive but failed to prove the same and such failure had reacted against sentence of death passed on charge of murder---"Something else" was going on in family which had led to occurrence in question but that "something" had been completely suppressed by prosecution although, some indication in that regard was made by accused in his statement recorded under S. 342, Cr.P.C.---Supreme Court exercised caution in the matter of sentence of death awarded to accused and reduced the same to imprisonment for life on each count of charge---Amount of compensation ordered by Trial Court to be paid to heirs of each deceased was excessive and same was reduced to Rs. 100,000/- to heirs of each deceased under S. 544-A, Cr.P.C.---Appeal was dismissed accordingly.

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 rel.

Altaf Samad, Advocate Supreme Court for Appellant.

Mujahid Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

2019 S C M R 2012

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHAHBAZ ALI KHALID and another---Petitioners

Versus

The STATE---Respondent

Jail Petitions Nos. 10 and 50 of 2016, decided on 2nd October, 2019.

(Against the Judgment dated 26.10.2015 passed by Lahore High Court, Lahore in Cr. A. No. 215-J of 2010)

Explosive Substances Act (XI of 1908)---

----Ss. 4 & 5A---Anti-Terrorism Act (XXVII of 1997), S. 7(g)---Recovery of explosive substance---Reappraisal of evidence---Benefit of doubt---Recovery, proof of---Explosives weighing 15 kilograms along with detonators and electric fuses was alleged to have been recovered from accused persons while they were travelling in a bus, where one accused had dressed himself as a woman---Trial Court convicted accused persons and sentenced them to imprisonment for life but High Court reduced sentence of one accused to imprisonment for ten years---Validity---Despite extensive search, police could not be able to retrieve Bus tickets, a surer means within the realm of possibility, to establish journey of petitioners with the contraband---Intercepting accused attired in feminine garments by male personnel in presence of public without lady constable, was a story that could not be believed---Prosecution's reliance on statement of expert to establish explosive potential of the material was beside the mark in the face of admission by that witness that he was not an expert in the field and as such hardly in a position to drive home the charge---Imprisonment for life was quite a span and an accused could not be deprived of the best portion of his life on slipshod, incoherent and suspect evidence even in cases with heinous contours---Prosecution's case was not entirely free from doubt and it was unsafe to maintain the conviction---Supreme Court set aside the convictions and sentences awarded to accused persons and they were acquitted of the charge---Appeal was allowed.

Muhammad Junaid Akhtar, Advocate Supreme Court for Petitioners.

Mirza Abid Majeed, Deputy Prosecutor-General, Punjab for the State.

2019 S C M R 2014

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

HAROON BIN TARIQ and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1001-L of 2017, Jail Petitions Nos. 461 and 462 of 2017, decided on 16th October, 2019.

(Against judgment dated 11.4.2017 passed by Lahore High Court, Lahore in Cr. Appeal No. 1130 of 2016 and CSR No. 17-T of 2016)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Accused persons along with co-accused, her sister and mother were alleged to have launched a murderous attack upon the complainant party---Held, participation of two ladies, each armed with lethal weapons, accompanying their male family members and participating in the assault, was a circumstance that failed to inspire confidence---When accused persons could conveniently accomplish the task on their own, it was not expected that they would allow their co-accused sister and mother to join them in the assignment---Conversely it was hard to contemplate that a mother would set off her accused sons on a course that may possibly take them to the gallows, that too, for a trivial motive---Mother had been acquitted by the courts below---Co-accused sister was placed identically to the mother and as such her involvement in the crime could not be viewed without suspicion---Jail petition was converted into appeal and allowed and co-accused sister was acquitted from the charge.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(n) & 7---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Conviction and sentence under S. 7 of Anti-Terrorism Act, 1997 set aside while that under S. 302(b), P.P.C. maintained---Stray bullet---Deceased not the intended target---Ocular account supported by forensic evidence inescapably pointed upon the culpability of the accused in terms of the role assigned to him---Insofar as conviction of accused under S. 7 of the Anti-Terrorism Act, 1997 was concerned, misfortune, brought the deceased police official in the line of fire; he was not the intended target of the assailants nor deputed at the crime scene to perform any officially assigned task---No independent verification was available on record to establish that the deceased directed himself to the assailants in order to disengage or overpower them and in the process received fire shot during grappling them from a close blank---On the contrary, medical evidence contradicted the prosecution case, as there was no blackening on the margins of solitary entry wound, therefore, possibility of a stray bullet could not be viewed as entirely unrealistic, particularly in the presence of as many as sixteen (16) casings, secured from the spot, unambiguously suggesting volley of fires---Death of deceased did not attract the mischief of S. 6(1)(n) of the Anti-Terrorism Act, 1997---Consequently, conviction and sentence of accused under S. 7 of the Anti-Terrorism Act, 1997 was set aside.

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in Cr. P. No. 1001-L of 2017).

Talat Mahmood Zaidi, Advocate Supreme Court for Petitioners (in J.Ps. Nos. 461 and 462 of 2017).

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

2019 S C M R 2018

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

Messrs AL-KHAIR GADOON LTD.---Appellant

Versus

The APPELLATE TRIBUNAL and others---Respondents

Civil Appeals Nos. 1660 and 1661 of 2014, decided on 21st January, 2019.

(On appeal against the judgment dated 16.05.2012 of the Islamabad High Court, Islamabad passed in Tax Appeals Nos. 7 and 8 of 2005)

(a) Taxation---

----Notice for recovery of tax---Incorrect provision of law mentioned in the notice---Effect---Quoting of wrong provisions of law in a show cause notice would not necessarily vitiate the entire process initiated thereunder---In deciding the legal validity of the show cause notice, it was important to first see whether the recipient/assessee of the said notice had been put to any prejudice in preparing and putting up its defence to the allegations made therein; and whether the issuer of the notice had the authority to issue the same, provided the notice had all the necessary facts leading to the alleged acts or omission of the recipient constituting the stated contravention of provisions of law, and thus, to be meaningfully responded by the assessee.

Collector of Sales Tax and CE, Lahore v. Zamindara Paper and Board Mills and others 2007 PTD 1804; Olas Khan v. Chairman NAB PLD 2018 SC 40; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109 and Safia Bibi v. Aisha Bibi 1982 SCMR 494 ref.

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

----Ss. 4(1), 4(2) & 35---Show cause notice mentioning incorrect provision of law---Mix question of law and facts---Appellate Tribunal, jurisdiction of---Scope---Question as to whether the challenge to the notice made by the appellant-tax payer before the Appellate Tribunal, which had not yet been decided by the Tribunal, should be decided by the Supreme Court, or be left to be decided first by the Appellate Tribunal, where it was originally agitated---Held, that the matter should be remanded to the Appellate Tribunal; firstly, for the reason that the said crucial determination would require considering of mixed questions of law and facts, which could best be undertaken by the Appellate Tribunal; secondly, any finding by the Supreme Court or even by the High Court on the said challenge to the very legality of the notices, would surely prejudice the appellant-tax payer by denying it a forum of redressal under the Central Excises Act, 1944; and thirdly and finally, another fundamental issue, raised by the appellant in response to the notices, as to whether the excisable goods questioned in the notices were manufactured prior to a particular date, when excise duty was imposed thereon, and if so, to what legal effect, also required a definite finding, and the Appellate Tribunal, being the last forum for adjudicating such mixed question of fact and law, would be also carried out to meet the ends of justice---Present Appeals were deemed to be pending before the Appellate Tribunal. [p. 2026] A

Saood Nasrullah Cheema, Advocate Supreme Court for Appellant (in both cases).

Dr. Farhat Zafar, Advocate Supreme Court for Respondents (in both cases).

2019 S C M R 2027

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ANTI-NARCOTICS FORCE through Regional Director---Petitioner

Versus

Syed PARIS ALI---Respondent

Criminal Petition No. 1004 of 2019, decided on 17th October, 2019.

(Against judgment dated 08.08.2019 passed by Islamabad High Court Islamabad in Criminal Misc. No. 289-B of 2019)

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic---Petition for cancellation of bail granted on medical grounds, dismissal of--- Disease of "Hemorrhoids"---Medical report of accused did not suggest any serious health disorder beyond hemorrhoids nor it appeared to require any treatment which was not available in jail hospital---Said report did not suggest any special procedure for the accused---However, since the trial had commenced and was likely to be concluded soon and concession of bail had not been abused, it was not expedient to recall the bail as the provisions of subsection (5) of S. 497, Cr.P.C were not punitive in nature.

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

----S. 497(5)---Bail---Petition for cancellation of bail granted on medical grounds---Scope---Not every ailment entitled an accused to be released on bail unless such illness was found life threatening or without possible cure in the prison.

Ch. Ihtesham-ul-Haq, Special Prosecutor, ANF for Petitioner.

Nemo for for Respondent.

2019 S C M R 2029

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Syed Mansoor Ali Shah, JJ

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 547 of 2017, decided on 18th October, 2018.

(Against the judgment dated 10.03.2014 passed by the High Court of Balochistan, Quetta in Criminal Quashment Petition No.428 of 2013)

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

----S. 173---Challan, submission of---Court could not insist that a challan of a case must be submitted against any particular person.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 and Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

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

----S. 156--- Investigation--- Domain of police---Non-interference by judiciary---Separation of powers---Scope---Investigation of a criminal case fell within the exclusive domain of the police and if on one hand independence of the judiciary was a hallmark of a democratic dispensation then on the other hand independence of the investigating agency was equally important to the concept of rule of law---Undue interference in each other's' role destroyed the concept of separation of powers and worked a long way towards defeating justice.

Emperor v. Khwaja Nazir Ahmed AIR 1945 Privy Council 18 ref.

Abdur Rasheed Awan, Advocate Supreme Court for Appellant.

Syed Baqar Shah, State Counsel and Aurangzeb, I.O. for the State.

2019 S C M R 2033

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 366 of 2010, decided on 16th October, 2019.

(Against judgment dated 18.3.2010 passed by Lahore High Court Rawalpindi Bench Rawalpindi in Crl. Appeal No. 335 of 2003)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Sentence, reduction in---Death sentence altered to imprisonment for life---Accused was the owner of a vehicle being shifted in a truck---On basis of tip off the truck was stopped and upon search of the vehicle therein, 3 mounds and 12 kilograms of charas was found---Statements of the witnesses constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband---Witnesses were in a comfortable unison on all the salient details regarding interception of the huge consignment as well as steps taken subsequent thereto---Since the contraband comprised of various pieces packed in different bundles, separation of samples for chemical analysis, taken from each bundle, was sufficient to constitute forensic proof---Exoneration of driver and cleaner of the truck by the police, in retrospect, lent credence to the case set up by the prosecution---Plea of substitution raised by the accused without entering the witness box did not hold much water---Culpability of accused was not open to any exception, however, given that the toxic lethality of the contraband was on the lower side, called for exercise of caution in awarding penalty of death---Consequently, penalty of death awarded to accused was altered into imprisonment for life with the amount of fine and consequence of default kept intact---Appeal was partly allowed accordingly.

M. Shahid Kamal Khan, Advocate Supreme Court and Mian Muhammad Zafar Iqbal, Advocate Supreme Court for Appellant.

Tariq Mehmood Jehangiri, Advocate General Islamabad with Muhammad Hussain Lasi, DSP/I.O. for the State.

2019 S C M R 2036

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Faisal Arab and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD AKBAR alias BHOLA and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 332-L and 333-L of 2017 and Criminal Petition No. 82-L of 2015, decided on 23rd September, 2019.

(Against the judgment dated 14.11.2014 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 617 of 2009 and Murder Reference No. 146 of 2009)

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

----Ss. 302(b), 452 & 148---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons---Reappraisal of evidence---Occurrence in the case had taken place in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein the present accused persons had been nominated as the culprits and specific roles had been attributed to them therein---Prosecution had produced three eye-witnesses before the Trial Court, out of whom two of the eye-witnesses were natural witnesses being inmates of the house wherein the occurrence had taken place and one of the said natural witnesses was also injured during the occurrence---All the said eye-witnesses had made consistent statements before the Trial Court and the ocular account furnished by them had received sufficient support from the medical evidence---Motive set up by the prosecution had duly been proved by a prosecution witness who was the injured victim of the incident forming the motive---During the investigation daggers had been recovered from the custody of accused persons, which daggers had subsequently been confirmed by the Chemical Examiner and the Serologist to be stained with human blood---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 proved to the hilt---Convictions and sentences of death recorded against the accused persons were maintained.

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

----Ss. 302(b), 452 & 148---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons---Reappraisal of evidence---Death sentence---Accused of desperate nature---Over a petty incident involving children playing cricket the accused persons had gone to the complainant party's house and launched an attack with daggers and resultantly killed two persons and injured another by giving them multiple dagger blows mercilessly---Injuries attributed to the accused persons had proved fatal---Accused persons appeared to be desperate persons evoking no sympathy in the matter of their sentences of death---Convictions and sentences of death recorded against the accused persons were maintained.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellants/Petitioners (in Criminal Appeals Nos. 332-L and 333-L of 2017).

Shahid Azeem, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Appellants/Petitioners (in Criminal Petition No. 82-L of 2015).

Khurram Khan, Deputy Prosecutor-General Punjab for the State (in all cases).

2019 S C M R 2039

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

WAQAR A. SHAMSI and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No. 185 of 2006 and Jail Petition No. 694 of 2018, deiced on 14th October, 2019.

(On appeal from the judgment dated 13.6.2005 of the High Court of Sindh, Karachi passed in ATA No. 3 of 2004)

(a) Criminal trial---

----Evidence---Nature and volume evidence required to establish the charge---People seldom fell prey to crimes under ideal circumstances, therefore, it was unrealistic to insist for or expect choice uniform pieces of evidence in every criminal case---What was to be essentially seen was whether prosecution was able to come forward with the available evidence, possible under the circumstances of the case and that whether such volume or nature of evidence was sufficient to sustain the charge.

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, qatl-i-amd, act of terrorism---Reappraisal of evidence---Conviction under S. 302(b), P.P.C maintained, while that under S. 365-A, P.P.C. and S. 7 of Anti-Terrorism Act, 1997 set aside---Prosecution was able to constitute a chain of circumstances, link by link, through last seen evidence, occupation of premises, recovery of electric wire and ropes, employed by the accused and co-accused to cause death of deceased confirmed as asphyxial and, thus argument that there was no evidence for a guilty verdict did not hold much water---Family of deceased had no axe to grind against the accused, who was deceased's best friend, and therefore there was no reason to swap him with the real offender---Exclusive knowledge of accused regarding different aspects of the occurrence was a piece of evidence inexorably pointing upon his culpability---Set of circumstances of the present case equally pointed towards the guilt of co-accused as well---Accused and co-accused could not escape the consequences of deceased's murder on the strength of bald denials, supported by inconsequential defence---Convictions as well as sentences of accused and co-accused for the offence of qatl-i-amd [section 302 (b), P.P.C.] were maintained, however, no evidence was available on record to frame them with the charge of abduction for ransom, even obliquely, as there was no proof that communication by the anonymous caller demanding ransom was actually made by the accused and co-accused---Phone data provided was without positive proof about the caller or subscriber of cell phone handset as the calls were made, according to prosecution's own case, from a public calling booth---Furthermore ransom was never transacted, therefore, prosecution's case to the extent of abduction for ransom was not established---Accused and co-accused were acquitted from the charges under S. 365-A, P.P.C. and S. 7(e) of Anti-Terrorism Act, 1997, while their convictions and sentences under S. 302(b), P.P.C. were maintained---Appeals were allowed accordingly.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Criminal Appeal No. 185 of 2006).

Nemo for Petitioners (in Jail Petition No. 694 of 2018).

Ch. Aamir Rehman, Additional Attorney General and Khadim Hussain, Additional Prosecutor-General, Sindh for the State.

2019 S C M R 2043

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

USMAN ALI CHHACHHAR---Appellant

Versus

MOULA BUX CHACHHAR and others---Respondents

Civil Appeal No. 735 of 2016, decided on 17th October, 2019.

(On appeal from the judgment dated 12.11.2014 passed by the Sindh Service Tribunal at Karachi in Appeal No. 119 of 2014)

Civil Servants (Appeal) Rules, 1977---

----Rr. 5(4), 7(1)(c) & 7(2)---Civil Services Rules (Punjab), Vol. 1, Chapt. XIV, Section III, Cls. 14.21(1)(c) & 14.21(2)---Balochistan Civil Servants (Appeal) Rules, 2013, R. 5---Khyber Pakhtunkhwa Civil Servants (Appeal) Rules, 1986, R. 3(1)---Sindh Civil Servants (Appeal) Rules, 1980, R. 3(1)--- Appeal before Service Tribunal, competency of---Where departmental appeal/representation/review was barred by limitation, whether the appeal before the Service Tribunal was ipso facto incompetent and had to be dismissed---Held, that for purposes of Provinces of Balochistan, Sindh and Khyber Pakhtunkhwa, if the departmental appeal/representation/review was filed beyond the prescribed period, then the delay may be condoned if the appellate authority was satisfied that, inter alia, it "was for reasons beyond the control of the appellant", or "sufficient cause" was shown (as the case may be)---As regards the Federation and the Province of Punjab the appeal/representation/ revision may be "withheld" if filed after the prescribed period and the appellant was unable to show any reasonable cause for the delay---In both categories, a departmental appeal was not to be dismissed outright if beyond time; the delay could be condoned---Supreme Court (i.e. current two-Member Bench) after its interpretation of the relevant provisions of law observed that the case law/judgments on the subject did not appear to take into consideration the actual terms of the relevant statutory provisions, therefore, the state of the law on the subject could only be regarded as unsettled; that accordingly, there was an urgent need for the law to be settled and made certain, which could only happen if the matter was considered by a Larger Bench---His Lordship observed that Office to place present appeal before the Chief Justice for such orders as were deemed appropriate.

Chairman PIAC and others v. Nasim Malik PLD 1990 SC 951 held to be per incuriam.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505; Anwar Muhammad v. General Manager, Pakistan Railways and another 1995 SCMR 950; Muhammad Jan Marwat and another v. Nazir Muhammad and others 1997 SCMR 287; Sui Northern Gas Pipelines Ltd. v. Murawat Hussain 2004 SCMR 527; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453; Ashfaq Hussain Shah v. NED University of Engineering and Technology and others 2007 SCMR 73; Muhammad Aslam v. WAPDA and others 2007 SCMR 513; Irshad Muhammad Shah v. HESCO and another 2011 SCMR 1717; Zia ur Rehman v. Divisional Superintendent, Postal Services, Abbottabad and others 2009 SCMR 1121; Sajid Hussain v. Secretary, Minister of Railways and others 2012 SCMR 195; Sohail Butt v. Deputy Inspector General of Police and others 2011 PLC (C.S.) 846; Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others 2011 PLC (C.S.) 856 and Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab and others 2015 SCMR 165 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

Respondent No. 1 in person.

Sibtain Mahmood, Additional AG for the Government of Sindh.

2019 S C M R 2054

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ALI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 415 of 2018, decided on 17th October, 2019.

(Against judgment dated 20.11.2017 passed by Islamabad High Court Islamabad in Cr. Appeal No. 23 of 2013)

Penal Code (XLV of 1860)---

----Ss. 324, 336 & 448---Qatl-i-amd, itlaf-i-salahiyyat-i-udw, house trespass---Reappraisal of evidence---Throwing corrosive substance on victim's face---Accused lived in the same neighbourhood with a joint terrace---Accused being a next-door neighbour, question of his identification by the victim could not be viewed with suspicion---Victim in her prime youth, and horrendously mutilated, was not expected to swap the accused with the real offender---Victim had been straightforward and confidence inspiring in her deposition, joined by other family members to firmly stand in her support to rule out conspiracy theories---Courts below had rightly appraised prosecution evidence while being in consonance with the principles of safe administration of criminal justice---Conviction and sentences awarded to accused by courts below for the offences of murderous assault, itlaf-i-salahiyyat-i-udw, and house trespass were maintained---Jail petition was dismissed accordingly. [p. 2056] A & B

Ms. Afshan Ghazanfar, Advocate Supreme Court for Petitioner.

Tariq Mehmood Jahangiri, Advocate-General Islamabad for the State.

2019 S C M R 2057

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Sajjad Ali Shah, JJ

MUHAMMAD AMIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 99-L of 2017, decided on 12th September, 2019.

(On appeal against the judgment dated 16.01.2015 passed by Lahore High Court, Multan Bench, Multan in Crl. As. Nos.408-ATA, 340-ATA of 2013 and CSR No. 10 of 2013)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Accused was alleged to have fired at and killed a police official for which he was convicted under S. 302(b), P.P.C. and S. 7 of Anti-Terrorism Act and sentenced to death---Such sentence was upheld by the High Court---Held, that postmortem examination on the dead body of deceased was conducted the morning after the occurrence despite the fact that complainant stated before the Trial Court that he had already prepared the injury statement and inquest report before the arrival of investigating officer in the hospital, who reached at the hospital late on the same night of the occurrence---In the FIR the physical features of unknown accused persons had been given by the complainant, however, in the inquest report, which as per complainant, was drafted by him in the hospital soon after the occurrence, no physical features of the assailants had been given---Doctor who conducted the autopsy admitted that he prepared the postmortem examination report on the third day of conducting the postmortem---In the FIR and while appearing before the Trial Court, the complainant stated that the unknown accused persons who made firing at the police party were aged 20/25 years---Other eye-witness who was member of the patrolling party stated in his examination in chief that one accused was about 20/25 years of age, whereas the other accused was about 26/27 years of age---During trial, the doctor who medically examined the accused and co-accused, stated before Trial Court that the accused was aged 45 years, whereas the co-accused was 35 years old---Although the eye-witnesses claimed that they had identified the accused and acquitted co-accused during identification parade and ascribed to them their respective roles during the occurrence, but the fact remained that the age of unknown accused persons mentioned in the FIR and claimed by the eye-witnesses in their court statements was very different from the age of accused and acquitted co-accused as reflected from the record---No appeal or petition had been filed by the State against the acquittal of co-accused before the Supreme Court---Case of prosecution against the accused was not free from doubt---Appeal was allowed, the convictions and sentences of accused were set aside and he was acquitted of the charges framed against him.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, acts of terrorism---Reappraisal of evidence---Crime empties secured from the place of occurrence sent to the office of Forensic Science Agency after arrest of the accused---In such circumstances, the positive report of the Agency was of no avail to the prosecution and was inconsequential.

Shahid Azeem, Advocate Supreme Court for Appellant.

Mirza Abid Majeed, DPG Punjab for the State.

2019 S C M R 2061

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ABDUL WAHAB and another---Petitioners

Versus

The STATE---Respondent

Jail Petitions Nos. 480 and 594 of 2018, decided on 17th October, 2019.

(Against judgment dated 2.5.2018 passed by High Court of Sindh, Circuit Court Larkana in Cr. Appeals Nos. D-62 and D-63 of 2017)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Accused and co-accused were convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced to 10 years and 11 years' rigorous imprisonment respectively along with fines---Appeals filed before the High Court against conviction and sentences were dismissed---Held, that prosecution case was, primarily, structured upon statements of witnesses who were police officials---Said statements were in comfortable unison with each other, despite flux of time, on all the salient aspects of the prosecution case, in terms of interception of the accused and co-accused and recovery of contraband---Said statements could not be discarded merely on account of absence of a witness from the public---Members of public seldom came forward to perform their civic responsibilities and official witnesses were no less credible or trustworthy provided their statements rang true, as in the present case---Accused and co-accused were not able to point out any serious flaw or infirmity that may be viewed as material or substantial in nature in the statements of the prosecution witnesses---Petitions were dismissed in circumstances.

Siddique Baloch, Advocate Supreme Court/Advocate-on-Record for Petitioners (in both cases).

Khadim Hussain Khooharo, Additional Prosecutor-General Sindh for the State.

2019 S C M R 2063

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Raja FARHAT IQBAL---Applicant

Versus

The STATE---Respondent

Criminal Misc. Application No. 1404 of 2019 in Criminal Review Nil of 2019 in Criminal Appeal No. 23 of 2006, decided on 15th October, 2019.

(Permission to file and argue the review petition)

Supreme Court Rules, 1980---

----O. XXVI, Rr. 1 & 9---Constitution of Pakistan, Art. 188---Review petition before the Supreme Court, dismissal of---Subsequent application for review---Maintainability---Appeal filed by counsel for accused against his conviction before the Supreme Court was withdrawn, and consequently dismissed---Review petition filed by accused before the Supreme Court against dismissal of his appeal was also declined, and one of the main reasons for it was that accused had been released on parole by that time---Accused filed another (review) application, which was objected to by the office of the Supreme Court on the ground that after dismissal of earlier review petition, there was no occasion to entertain the request---Validity---Dismissal of review petition foreclosed avenues for subsequent attempts by the accused/applicant and for that law was well-settled---Accused/applicant could not escape the consequences of course adopted by his duly engaged counsel merely on the ground that he had not so instructed him, that too so late in the day--- Application was dismissed accordingly.

Applicant in person (assisted by Ghulam Sajjad Gopang, Advocate Supreme Court with permission of the Court)

Nemo for the State.

2019 S C M R 165

[Supreme Court of Canada]\

Present: Wagner, C.J.,Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ.

JACQUES CHAGNON, IN HIS CAPACITY AS PRESIDENT OF THE NATIONAL ASSEMBLY OF QUÉBEC---Appellant

Versus

SYNDICAT DE LA FONCTION PUBLIQUE ET PARAPUBLIQUE DU QUÉBEC---Respondent and HONOURABLE SERGE JOYAL, P.C., AND SPEAKER OF THE LEGISLATIVE ASSEMBLY OF ONTARIO---Interveners

Decided on 5th October, 2018.

(On appeal from the Court of Appeal for Québec)

Per Karakatsanis, J; Wagner C.J., Abella, Moldaver, Gascon and Martin JJ. agreeing; Rowe, J concurring with his own reasons; Côté and Brown JJ. dissenting

Per Karakatsanis, J

(a) Parliamentary privilege---

----Scope and interpretation---Exercise of parliamentary privilege---Judicial review by Court---Scope---Legislative bodies, including Provincial legislative assemblies, had inherent Parliamentary privileges that flowed from their nature and function in a Westminster model of Parliamentary democracy---Inherent Parliamentary privileges helped preserve the separation of powers and promoted the proper functioning of representative democracy, by protecting some areas of legislative activity from external review---However, the inherent nature of Parliamentary privilege meant that its existence and scope must be strictly anchored to its rationale---Courts had the role of determining whether a category of Parliamentary privilege existed and to delimit its scope, whereas it was for the legislative assemblies to determine whether in a particular case the exercise of the privilege was necessary or appropriate---Scope of Parliamentary privilege was delimited by the purposes it served, and extended only so far as was necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly's work in holding the government to account for the conduct of the country's business---Since the courts could not review the exercise of Parliamentary privileges, even on grounds of fundamental rights and freedoms, they must ensure that the protection provided by a privilege did not exceed its purpose---Purposive approach must therefore be taken when assessing Parliamentary privilege claims---Such an approach helped to reconcile the privilege with the fundamental rights and freedoms, by ensuring that it was only as broad as was necessary for the proper functioning of a constitutional democracy.

(b) Parliamentary privilege---

----Scope---Judicial review---Burden of proof---Party seeking to rely on the immunity from external review conferred by Parliamentary privilege bore the burden of establishing its necessity, that was, to demonstrate that the scope of the protection it claimed was necessary in light of the purposes of Parliamentary privilege---Such necessity test demanded that the sphere of activity over which the privilege was claimed be more than merely connected to the legislative assembly's functions---Immunity that was sought from the application of ordinary law must also be necessary to the assembly's constitutional role.

(c) Parliamentary privilege---

----Scope and interpretation---Judicial review---Scope---Provincial Assembly---Security Guards of Provincial Assembly dismissed by the Speaker of the Assembly---Dismissals were challenged before a labour arbitrator---Speaker objected to such challenge on basis that decision to dismiss guards was immune from review because of Parliamentary privilege over management of employees and Parliamentary privilege to exclude strangers---Arbitrator concluded that the dismissals were not protected by Parliamentary privilege, and therefore the challenge to dismissal could proceed---Question as to whether Speaker had established that Parliamentary privilege was necessary for Provincial Assembly to discharge legislative mandate and therefore dismissals should be immune from arbitrator's review]---[Per Karakatsanis, J, (Majority view): Dismissals under challenge were not protected by Parliamentary privilege and therefore were not immune from external review under the applicable labour relations regime---Although the Speaker was entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, Parliamentary privilege did not insulate the Speaker's decision from review under the labour regime to which the guards were subject---Standard of review applicable to the decision of the arbitrator in the present case was correctness---Arbitrator correctly concluded that the Speaker's decision to dismiss the security guards was not subject to Parliamentary privilege---Speaker had failed to establish the necessity of Parliamentary privilege over the management of the guards---Admittedly, the guards performed some important tasks that were connected to the constitutional functions of the Assembly, including protecting it from security threats and helping to maintain decorum in the chamber, however, the Assembly did not require immunity from outside scrutiny of the general management of the security guards in order to discharge its constitutional functions---Management of the guards could be dealt with under ordinary law without impeding the Assembly's security or its ability to legislate and deliberate---Permitting the enforcement of basic employment and labour protections for the guards would not undermine the independence required for the Assembly to fulfil its constitutional mandate with dignity and efficiency---Furthermore, the relevant Act on the subject ["Act Respecting the National Assembly (Canada)] established that all employees of the Assembly were managed in accordance with general law; that they were members of the civil service and, as such, were generally subject to a labour relations regime unless they were exempted by regulation---As there was currently no regulatory exemption for the security guards, this demonstrated that the Assembly did not appear to view exclusive control over their management to be necessary to its autonomy---As for the Parliamentary privilege to exclude strangers, while the existence of such privilege had long been recognized, it was not necessary to a legislative assembly's ability to perform its constitutional functions that the scope of the privilege be drawn so broadly as to include the decision to dismiss employees who implemented it on the Speaker's behalf---Such an immunity would impact persons who were not members of the legislative assembly, and undermine their access to the labour regime---Speaker had not shown that the application of general labour law to those persons would jeopardize the autonomy, dignity and efficiency required for the fulfilment of the Assembly's legislative mandate---Accordingly, the privilege to exclude strangers did not protect the decision to dismiss employees who exercised the privilege from review---Appeal was dismissed in circumstances]---[Per Rowe, J concurring with his own reasons: Whatever the scope of Parliamentary privilege for management of employees, the relevant Act ["Act Respecting the National Assembly" (Canada)] resolved the present case---In the relevant Act, the Assembly had defined how the management of its employees was to be carried out under the public service employment scheme---If the Assembly wanted a group of employees to be removed from such scheme, it could do so through the derogation procedure referred to in the relevant Act---Privilege would then again operate, provided that the employees fell within the scope of privilege---As the derogation procedure under the relevant Act had not been exercised in the present case with respect to the security guards, the Speaker could not now reassert privilege as to the management of the guards, and thereby insulate the decision to dismiss them from the scrutiny of the grievance arbitrator---Moreover it would be contrary to the decision of the Assembly set out in the relevant Act for the Speaker to exercise authority over the management of employees on a case by case basis, ostensibly in the exercise of privilege---Accordingly, the arbitrator did not err in determining that he could hear the grievances against dismissal]---[Per Côté and Brown JJ. dissenting (Minority view): Courts must rely on the necessity test to ascertain the existence and scope of Parliamentary privileges---Said test was concerned with a sphere of the legislative body's activity that would be excluded from the ordinary law---In the analysis of the necessity test, the sphere of activity must not be carved up - the analysis must not focus on each employee's specific tasks, but rather on the sphere of activity and the category of employees---Once the courts had found that the sphere of activity and the category of employees were necessary to the proper functioning of the legislative assembly, the inquiry ended, since the privilege had been established---Thus there was no need to consider whether grievance arbitration may interfere with the proper functioning of the assembly or jeopardize the dignity of the institution---Security was one of the spheres of activity necessary to proceedings in an assembly---In a parliamentary democracy, there could be no free debate without security---In order for any legislative assembly to perform its constitutional functions with dignity and efficiency, it was essential that it operated in a secure environment---Security was therefore a sphere of activity that was protected by absolute Parliamentary privileges---All decisions relating to security fell within this sphere of activity, including all tasks performed by an assembly's security guard---In addition, the guards exercised, in particular, the privilege to exclude strangers on the Speaker's behalf---Employees to whom the exercise of a recognized Parliamentary privilege was delegated necessarily performed a function that was closely and directly connected with the Assembly's activities---Connection required to ground a management privilege would therefore be established where it was shown that a category of employees exercised or participated in exercising a Parliamentary privilege that was recognized and necessary---Accordingly, the labour relations of such employees fell within the scope of the privilege over the management of employees, and a decision concerning their dismissal was made in the exercise of this privilege---Dismissal of an employee to whom a privilege had been delegated was the ultimate exercise of the management privilege---To preserve the integrity of the privileges of the Assembly and its members, the Speaker must be able to manage the employees who exercised these privileges without having his or her decisions called into question---Courts could not dictate to the Assembly how it must go about ensuring the security of its members within its walls by forcing it to employ people the Speaker no longer trusted---If a grievance arbitrator could review the Speaker's decision to terminate the guards' employment, this would mean that part of the exercise of the Speaker's own duties became de facto reviewable by a court or tribunal and therefore that the Assembly would lose control over decisions concerning its security---Privileges claimed in this case were not abolished with the coming into force of the relevant Act and the Assembly did not waive its privilege in relation to the employees concerned by enacting said Act---Courts must respect the view taken by a Speaker of a statute dealing with the internal affairs of a legislative assembly---Interpretation proposed by the Speaker of the Assembly must therefore be given predominant weight in determining whether the Assembly intended to limit its privileges---Relevant Act governed the internal affairs of the Assembly, which were outside the scope of the courts' jurisdiction---Relevant Act did not have the effect of limiting the privileges held by the Speaker, who may assert them when deemed necessary, and courts and tribunals could not assume jurisdiction without a clear indication that the Assembly had conferred it on them---Interference by courts or tribunals would be inconsistent with the Assembly's sovereignty---Grievances filed by employees against their dismissals should be dismissed].

Per Rowe, J, concurring with Karakatsanis, J [Majority view]

(d) Parliamentary privilege---

----Scope---Parliamentary privilege subject to a statute---When a legislative body subjected an aspect of privilege to the operation of a statute, it was the provisions of the statute that governed---While such provisions remained operative, a legislative body could not reassert privilege so as to do an end-run around the statute whose very purpose was to govern the legislature's operations---Parliamentary privilege should not be invoked to bypass the application of a statute enacted by the legislature to govern its own operation---Complying with its own enactments was not an impediment to the functioning of the legislature, and it could not be regarded as an intrusion on the legislature's privilege---Furthermore the relationship between the statute and privilege was determined through ordinary principles of statutory interpretation.

Per Côté and Brown JJ. dissenting [Minority view]

(e) Parliamentary privilege---

----Scope and burden of proof---Courts, jurisdiction of---Jurisdiction of the courts with respect to Parliamentary privileges was narrow---Courts could only ascertain the existence and scope of such privileges and must give considerable deference to the view taken by legislative assemblies and their speakers of the scope of autonomy they considered necessary to fulfill their functions---Courts must rely on the necessity test to ascertain the existence and scope of privileges---Said test was concerned with a sphere of the legislative body's activity that would be excluded from the ordinary law---Onus was on the legislative assembly to show that the sphere of activity for which privilege was claimed was so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. [Minority view]

Per Côté and Brown JJ. dissenting [Minority view]

(f) Parliamentary privilege---

----Scope---Parliamentary privilege subject to a statute---Given that the Court had recognized that Parliamentary privileges had constitutional status, a statute must be interpreted in such a way that it did not implicitly abrogate these privileges---In such circumstances it was undesirable to adopt an interpretation to the effect that the Assembly implicitly considered a privilege unnecessary, thereby denying its existence---More was needed to abrogate a constitutional privilege---Without requiring express language in the statute, the modern approach to statutory interpretation did require clear, unequivocal legislative intent to abolish or modify Parliamentary privileges that were still necessary. [Minority view]

François LeBel, Siegfried Peters and Ariane Beauregard for Appellant.

Geneviève Baillargeon-Bouchard and Pascale Racicot for Respondent.

Serge Joyal and David Taylor for the intervener the Honourable Serge Joyal, P.C.

Catherine Beagan Flood, Emily Hazlett and Christopher DiMatteo for the intervener the Speaker of the Legislative Assembly of Ontario.

2019 S C M R 454

[Supreme Court of Canada]\

Present: McLachlin C.J.,Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe, JJ

CHURCHILL FALLS (LABRADOR) CORPORATION LIMITED---Appellant

Versus

HYDRO-QUEBÉC---Respondent

Decided on 2nd November, 2018.

(On appeal from the Court of appeal for Québec)

Per Gascon, J; Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown, JJ agreeing; Rowe, J dissenting.

(a) Contract---

----Characterization of contracts---'Joint venture' and 'relational contracts'---Scope---Appellant-company ('the company") signed a contract with the respondent-state owned enterprise ('state enterprise') for the construction and operation of a hydroelectric plant---State enterprise's undertakings in the contract included that for a period of 65 years, it would buy most of the electricity produced by the plant---In exchange, company agreed to give the state enterprise the right to purchase electricity at fixed prices for the entire term of the contract---In the years after the contract was signed, changes occurred in the electricity market with the result that the prices set by the contract were much lower than the market price, thus enabling the state enterprise to resell the electricity produced by company's plant to third parties and reap substantial profits---Company initiated legal proceedings asking the court to compel the state enterprise to renegotiate the contract and rewrite it to include a new price adjustment formula---Question as to whether the contract between the parties was a joint venture or a relational contract---[Per Gascon, J (Majority view): Contract, in the present case, could not be characterized as a joint venture contract or a relational contract---Joint venture contract was formed where businesses choose to become partners and to cooperate in a project by each investing resources and by sharing any profits from the project---In the present case, the evidence did not show that the parties intended to enter into a partnership or to jointly assume financial or logistical responsibility for the project beyond the simple cooperation required to perform their respective prestations---Parties' relationship thus lacked the characteristics generally associated with the joint venture contract---As for the relational contract, it sets out the rules for a close cooperation that the parties wished to maintain over the long term and puts an emphasis on the parties' relationship and on their ability to agree and cooperate; it did not define their respective prestations in much detail---Resultantly, it required a cooperation that was, in the end, more active than the cooperation required by transaction-based contracts---Long-term, interdependent nature of the contract did not in itself imply that the contract was relational---[Per Rowe J; dissenting (Minority view): Relational contracts typically required successive performance, whereby the parties had obligations to perform on a continuing basis---Said category of contracts should not be limited to those that left certain obligations to be defined by the parties at a later date---Rather than being a necessary condition, undefined obligations were but one indicator of relational contracts---Other indicators included the duration of the contract and the creation of an ongoing economic relationship rather than a one-off transaction---In the present case, the contract at issue was not a simple contract of sale; it established a cooperative relationship between the parties and it was the framework for an interdependent and long-term relationship---First, the agreement made clear that both parties saw the project as requiring ongoing interaction and collaboration; second, the parties committed to offering each other assistance during the execution of the contract in order to ensure its success; third, the parties explicitly contemplated the need for consultation, joint determination, discussion, and revision---When considering the overall framework of the parties' rights and obligations, the true nature of the contract became apparent; it was relational]---Appeal was dismissed.

J-L Baudouin and P-G. Jobin, Les obligations (7th ed. 2013) by P.G. Jobin and N.Vézina, at No. 78 ref.

(b) Contract---

---Implied clauses/obligations in a contract---Renegotiation of terms of contract---Unforeseeable changes in market conditions---Question as to whether party to contract could require other party to renegotiate contract because of allegedly unforeseeable changes in market since it was signed---In the year 1969, appellant-company ('the company") signed a contract with the respondent-state owned enterprise ('state enterprise') for the construction and operation of a hydroelectric plant---State enterprise's undertakings in the contract included that for a period of 65 years, it would buy most of the electricity produced by the plant---In exchange, company agreed to give the state enterprise the right to purchase electricity at fixed prices for the entire term of the contract---In the years after the contract was signed, changes occurred in the electricity market with the result that the prices set by the contract were much lower than the market price, thus enabling the state enterprise to resell the electricity produced by company's plant to third parties and reap substantial profits---Company initiated legal proceedings asking the court to compel the state enterprise to renegotiate the contract and rewrite it to include a new price adjustment formula so as to ensure that the contract reflected the equilibrium of the initial agreement---Company's claims had been dismissed at trial and on appeal: [Per Gascon, J (Majority view): Parties' contract set out a series of defined and detailed prestations as opposed to providing for flexible economic coordination---Each party's participation was clearly quantified and defined, and no important prestations were left undefined, which showed that the parties intended the project to proceed according to the words of the contract, and not on the basis of their ability to agree and cooperate from day to day to fill any gaps in the contract---Contract did not contain implied clauses that imposed on the state enterprise a duty to cooperate and to renegotiate the agreed-on prices---Implied duty may[within the meaning of Art. 1434 of the Civil Code of Quebec] be incident to a contract according to the nature of the contract if the duty was consistent with the general scheme of the contract and if the contract's coherency seemed to require such a duty---However, such an implied clause must not merely add duties to the contract that might enhance it, but must fill a gap---In the present case, there was no gap or omission in the scheme of the contract that required that an implied duty to cooperate and to renegotiate the agreed-on prices be read into the contract in order to make it coherent---Nothing was on record to suggest that the parties' prestations would be incomprehensible and would have no basis or meaningful effect in the absence of an implied duty according to which the state enterprise must either exceed the usual requirements of good faith in cooperating with the company or redistribute windfall profits---Parties intentionally allocated the risk of electricity price fluctuations to the state enterprise and the changes in the market did not have the effect of increasing the cost of performing the company's prestations or diminishing the value of the prestations it received from the state enterprise---On the contrary, the company had continued to receive exactly what it was owed under the contract, as well as the related benefits---Relief being sought by the company could not be granted]---[Per Rowe, J, dissenting (Minority view): Based on the relational nature of the contract at issue and how it informed the requirements of good faith and equity, the parties had an implied obligation to cooperate in establishing a mechanism for the allocation of extraordinary profits---Such obligation flowed from the fact that a profit imbalance of present nature and magnitude was beyond what the parties intended when they concluded the agreement---Parties' choice not to include a price adjustment mechanism was premised on shared assumptions about the nature and value of hydroelectric power at the time of the formation of the contract, and it could not be seen as excluding an obligation to cooperate should these shared assumptions no longer reflect reality---Since the contract contained no mechanism for the allocation of profits that were beyond what was envisioned, the parties had an implied obligation to cooperate in defining the terms of their allocation---State enterprise had breached this duty by refusing to establish a price adjustment formula for these extraordinary profits by way of mutual agreement---State enterprise must therefore be held to its obligation, and should be ordered to cooperate with the company for such purpose]---Appeal was dismissed.

Civil Code of Quebec, Art. 1434; Lluelles, Didier, et Benoît Moore. Droit des obligations, 2e éd. Montréal: Thémis, 2012 at No.1542; Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 7e éd. par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Que: Yvon Blais, 2013, at No. 431 and Pineau, Jean, Danielle Burman et Serge Gaudet. Théorie des obligations, 4e éd. par Jean Pineau et Serge Gaudet. Montréal: Thémis, 2001, at No. 235 ref.

Per Gascon, J [Majority view]

(c) Contract---

----Doctrine of unforeseeability---Scope---Renegotiation of terms of contract---Doctrine of unforeseeability was a private law rule the effect of which was that parties could be required to renegotiate a contract if, as a result of unforeseen events, performance of the obligations stipulated in the contract would be excessively onerous for one of them---However, unforeseeability could not be relied on where it was clear that the party who was disadvantaged by the change in circumstances had accepted the risk that such changes would occur, and it applied only where the new situation made the contract less beneficial for one of the parties, and not simply more beneficial for the other---Said doctrine did not apply where the parties received the prestations and benefits that were provided for or were allocated to them in the contract.

Unidroit Principles of International Commercial Contracts 4th ed. 2016 ref.

(d) Contract---

----Good faith, principle of---Scope---Renegotiation of terms of contract---Good faith (principle) conferred a broad, flexible power to create law and served as a basis for courts to intervene and to impose on contracting parties obligations based on a notion of contractual fairness---Said principle also served to protect the equilibrium of a contract---However, it could not be used to violate such equilibrium and impose a new bargain on the parties to the contract---Courts could not rely on it to order the sharing of profits that had in fact been honestly earned by party to the contract---Despite its potential scope, the concept of good faith could not be expanded to include the possibility of penalizing a party whose conduct had not been unreasonable, or a duty to renegotiate the principal obligations of a contract in all circumstances---Duty of good faith did not negate a party's right to rely on the words of the contract unless insistence on that right constituted unreasonable conduct in the circumstances---Duty to cooperate, which flowed from the requirements of good faith, could require a party to be proactive in accommodating the interests and legitimate expectations of his or her contracting partner, but for a party to consider only the words of the contract and to refuse to renegotiate a contract or to share profits was not necessarily contrary to the general duty of good faith---Duty to cooperate with the other contracting party did not mean that one's own interests must be sacrificed.

Grégoire, Marie Annik. Liberté, responsabilité et utilité: la bonne foi comme instrument de justice. Cowansville, Que.: Yvon Blais, 2010 at p. 173; Rolland, Louise. "La bonne foi dans le Code civil du Québec: du général au particulier" (1996), 26 R.D.U.S. 377 and Baudouin, Jobin and Vézina, at No. 127; Grégoire, at p. 175 ref.

Per Gascon, J; Rowe, J dissenting. [Majority view]

(e) Contract---

----Good faith and equity, principle of---Renegotiation of contract---Unforeseeable changes in market conditions---Question as to whether party to contract could require other party to renegotiate contract because of allegedly unforeseeable changes in market since it was signed---In the year 1969, appellant-company ('the company") signed a contract with the respondent-state owned enterprise ('state enterprise') for the construction and operation of a hydroelectric plant---State enterprise's undertakings in the contract included that for a period of 65 years, it would buy most of the electricity produced by the plant---In exchange, company agreed to give the state enterprise the right to purchase electricity at fixed prices for the entire term of the contract---In the years after the contract was signed, changes occurred in the electricity market with the result that the prices set by the contract were much lower than the market price, thus enabling the state enterprise to resell the electricity produced by company's plant to third parties and reap substantial profits---Company initiated legal proceedings asking the court to compel the state enterprise to renegotiate the contract and rewrite it to include a new price adjustment formula so as to ensure that the contract reflected the equilibrium of the initial agreement and in order to enforce the state enterprise's alleged duty to cooperate with the company on the basis of its general duty of good faith---Company's claims had been dismissed at trial and on appeal: [Per Gascon, J (Majority view): State enterprise was entitled to insist on adhering to the words of the contract and maintaining the equilibrium of the prestations the contract established for the benefit of the parties, which bound themselves knowing full well what they were doing---State enterprise was not breaching its duty of good faith in exercising its right to purchase electricity from the company at fixed prices; nor did its insistence on adhering to the contract despite the unforeseen change in circumstances constitute unreasonable conduct---Moreover, the state enterprise was considering company's legitimate contractual interests, given that it was not preventing the company from receiving the benefits conferred on the latter under the contract---State enterprise had done nothing that threatened to disrupt the contractual equilibrium, therefore it had no duty to cooperate with the company to mitigate the effects of the contract---Magnitude of the profits it earned under the contract did not justify modifying the contract so as to deny it that benefit---As to equity, it could not be relied on in support of the relief being sought, since its effect would then be to indirectly introduce either lesion or unforeseeability into law in every case---To hold that a change in the circumstances of the parties to a contract would always justify it being renegotiated in the name of equity would conflict sharply with the legislature's intent---Equity was not so malleable that it could be detached from the will of the parties and their common intention---Nothing about the relationship between the company and state enterprise would justify such an intervention in the circumstances of the present case---In the relationship between the parties there was neither inequality nor vulnerability---Both parties to the contract were experienced, and they negotiated its clauses at length---No legal basis existed upon which a judge could impose a new bargain on the state enterprise to which it had not agreed---Allowing a contract to be modified by a judge at the request of a single party would conflict seriously with the principles of the binding force of contracts and freedom of contract---Relief being sought by the company could not be granted---[Per Rowe, J, dissenting (Minority view): Present contract was a relational contract, and, thus, owing to the requirements of good faith and equity, the parties had an implied obligation to cooperate in establishing a mechanism for the allocation of extraordinary profits---Parties' had not included a price adjustment mechanism, on the basis of a shared assumption about the value of electric power at the time of the formation of the contract---Parties had the obligation to cooperate when such shared assumptions no longer reflected reality---Contract contained no mechanism for allocation of profits that were beyond what was envisioned---State enterprise must therefore be held to its obligation, and should be ordered to cooperate with the company for establishing a price adjustment formula for the extraordinary profits]---Appeal was dismissed.

Per Rowe J; dissenting with Gascon, J. [Minority view]

(f) Contract---

----Characterization of type of contract---Object---Object of contract characterization was to link the contract to a legal category so as to impose on the parties the legal effects of the true nature of their agreement---Aim of such exercise was to identify the essential objective of the contract and to categorize the contract based on the elements that defined its nature---Characterization of a contract determined the legal consequences that attached to it, including certain implied obligations that were necessary complements to the contract and reflected the presumed intention of the parties---Exercise of characterization was a question of law unless consideration of evidence extrinsic to the contract was necessary to identify the true intention of the parties. [Minority view]

(g) Contract---

----Implied term/obligation---Scope---Inclusion of an implied obligation was warranted where a reasonable person in the same circumstances would see an important and intrinsic connection between the implied terms and the nature of the contract---Court did not have to find that a contract would be ambiguous, incomprehensible, without foundation or without useful effect before including an implied obligation. [Minority view]

(h) Contract---

----Good faith, principle of---Scope---Relational contracts---Implied terms/obligations---In relational contracts, principle of good faith provided guidance to defining the scope and content of implied obligations, including the implied duty to cooperate---Good faith implied an attitude that maximized, for each party, the advantages of the contract---In circumstances where the parties must work together to achieve the object of their agreement over a long period of time, the relational nature of the contract imposed a heightened duty of good faith.

(i) Contract---

----Equity---Modification of terms by court---Scope---Equity was a means to remedy the imperfections of a contract and re-establish an equilibrium where its division of burdens and benefits did not align with its intended scheme---While courts may not modify or revise contracts, they could enforce what appeared to be equitable.

Douglas Mitchell, Audrey Boctor, Daphné Wermenlinger and Patrick Girard for Appellant.

Pierre Bienvenu, Andres C. Garin, Sophie Melchers, Horia Bundaru and Lucie Lalonde for Respondent.

2019 S C M R 738

[Supreme Court of Canada]\

Present: Wagner, C.J., Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ

KENNETH F. SALOMON AND STERATHAL KATZAELSON MONTIGNY LLP---Appellants

Versus

JUDITH MATTE-THOMPSON AND 166376 CANADA INC.---Respondents

Decided on 28th February, 2019.

(On appeal from the Court of Appeal for Quebec)

Per Gascon, J; Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin, JJ agreeing; Côté, J dissenting.

(a) Counsel and client---

----Professional liability---'Duty to advise' and 'duty of loyalty' towards client, breach of---Lawyer referring clients to a professional financial advisor---Clients suffering financial losses due to investments in fraudulent ventures of advisor who had been recommended and continually supported by the lawyer - Lawyer failing to perform adequate due diligence, misrepresenting investment information, and committing breaches of confidentiality---Said financial advisor was also a personal friend of the lawyer---Lawyer's clients invested millions of dollars with the recommended financial advisor's firm - Lawyer repeatedly endorsed the advisor and encouraged his clients to make and retain investments---Subsequently the recommended advisor and his associate disappeared with the savings of numerous investors, including the respondent---Respondent instituted legal proceedings, claiming that the lawyer and his law firm were professionally negligent in two ways: first by breaching their duty to advise her and second, by disregarding their duty of loyalty to her---Trial judge dismissed the claim, however the Court of Appeal allowed the appeal and ordered that clients be compensated for losses - Question as to whether Court of Appeal expanded professional obligations of lawyers who referred clients to independent advisors---[Per Gascon, J (Majority view): Relationship between lawyers and their clients could usually be characterized as a contract of mandate---Although lawyers, as mandataries, did not guarantee the services rendered by professionals or advisors to whom they referred their client, they must nevertheless act competently, prudently and diligently in making such referrals, which must be based on reasonable knowledge of the professionals or advisors in questions---Lawyers who referred clients to other professionals or advisors had an obligation of means, not one of result; they must be convinced that the professionals or advisors to whom they referred clients were sufficiently competent to fulfill the contemplated mandates---Referral was not a guarantee of the services rendered by the professional or advisor to whom the client was referred, but it was also not a shield against liability for other wrongful acts committed by the referring lawyer---In the present case, the lawyer had done far more than merely make a referral, and it was the entirety of his conduct that led the Court of Appeal to hold the lawyer and his law firm liable in the circumstances---When properly assessed as a whole, the evidence revealed that the lawyer's advice and reassurances were all part of a single continuum, and that placing them in separate silos would be artificial---Regardless of the scope of his original mandate, the lawyer voluntarily chose to provide (and be paid for) his advice and reassurances to his clients over the four years leading up to the collapse of the financial advisory firm---Having so chosen, he could not escape liability by pointing to the narrow scope of his original mandate---Respondent's trust in and reliance on the lawyer was based on recommendations, endorsements and reassurances that remained constant and uniform over the years---Lawyer actively encouraged her reliance by providing multiple investment recommendations and professing to be knowledgeable in that field---Lawyer breached his duty to advise by recommending a non-diversified investment in offshore hedge funds to clients whose primary goal was to preserve the capital, by recommending financial products without performing due diligence and by repeatedly reassuring his clients that their investments gave them security of capital---Court of Appeal's decision did not broaden the basis of liability for lawyers who referred clients to other professionals or advisors as it had basis to intervene and find that the lawyer had failed to advise his clients as a competent, prudent and diligent lawyer would have done---Court of Appeal was also justified in finding that the lawyer's personal and financial relationship with the recommended advisor had placed him in a conflict of interest and that he had neglected his clients' interests---Proper consideration of the evidence as a whole led to the conclusion that the very close relationship affected the lawyer's objectivity in advising his clients---Lawyer's divided loyalties led him to neglect his clients' interests; he disregarded his duty of confidentiality regarding his communications with them and teamed up with the recommended advisor in an attempt to convince them not to withdraw their investments---Evidence on record not only pointed to questionable payments received by the lawyer from the financial firm at the same time as he was reassuring the clients about their investments, it also revealed his very close relationship with the said firm and the divided loyalties that had resulted from that relationship---Liability of lawyer was neither excluded nor diminished by the fact that his clients did not second-guess his wrongful advice---Clients' ability to rely on advice given by his or her lawyer was central to the lawyer-client relationship---In the present case, the lawyer's faults with respect to both his duty to advise and his duty of loyalty were a true cause of the losses suffered by his clients---Fraud by the financial advisor did not break the chain of causation - No losses would have been suffered without the faults first committed by the lawyer]---[Per Côté, J (Minority view): Lawyers should refrain from recommending other professionals lightly, especially given the trust and confidence they themselves may inspire in their clients, but this did not mean, however, that the principles of civil liability should be relaxed so as to turn referring lawyers into guarantors of the recommended professionals---In the present case, the lawyer did not commit a fault in recommending the investment firm and the financial advisor and in expressing confidence in them---While the lawyer had a duty to advise both his clients and a duty of loyalty to both of them, those duties were largely circumscribed by the very nature and scope of his mandates---Precise scope of a mandate did not always limit a lawyer's duties, but it was certainly one of the main considerations for a judge when assessing professional liability---In the present case, as the lawyer had no specific mandate with regard to the clients' investments, it was appropriate for the trial judge to eschew an overly broad approach to liability---Lawyer's confidence in the competence and probity of the investment firm and the recommended advisor was based on reasonable knowledge, therefore, he acted as a reasonably competent, prudent and diligent lawyer in the circumstances---Lawyer's only fault relating to his duty to advise was to recommend specific investment products---Lawyer only failed to act as a reasonably competent, prudent and diligent lawyer in recommending specific investment products and in volunteering investment advice even though such advice fell outside of the limits of his mandates---Court of Appeal erred in interfering with the trial judge's finding that the lawyer had not breached his duty of loyalty to his clients---Trial judge properly considered the factors that could have cast doubt on the lawyer's undivided loyalty and commitment to his clients, that was, his friendship with the recommended advisor and their financial relationship, including the gifts or commissions he had received---Conclusion that said factors were not enough to have placed the lawyer in a position where his personal interest conflicted with that of his clients was open to the trial judge, and was entitled to deference---Trial judge was within his powers to find that fraud by the financial advisor and his firm was the only true cause of the losses and that the recommendation of the investment firm and financial advisor was not close enough to the injury to qualify as a logical, direct and immediate cause---Regarding the duties of loyalty and confidentiality, it was unclear how the alleged breaches might have caused the losses to the clients---Moreover, even if the lawyer did commit additional faults related to his duty to advise and his duties of loyalty and confidentiality after he had become aware of a news article raising doubts about the financial firm's practices, the outcome would be the same as the funds were no longer recoverable by that time---Resultantly any faults occurring after that date had no consequence on the losses]---Appeal was dismissed accordingly.

Per Gascon, J [Majority view]

(b) Counsel and client---

----Duty to advise clients---Scope---Lawyer's duty to advise was threefold, encompassing duties to inform, to explain, and to advise in the strict sense---Such duty was inherent in the legal profession and existed regardless of the nature of the mandate---Exact scope of such duty depended on the circumstances, including the object of the mandate, the client's characteristics and the expertise the lawyer claimed to have in the field in question---When lawyers did provide advice, they must always act in their clients' best interests and meet the standard of the competent, prudent and diligent lawyer in the same circumstances---Any advice lawyers gave that exceeded their mandate may, if wrongful, engage their liability.

(c) Counsel and client---

----Duty to avoid conflict of interest---Duty of loyalty towards client---Scope---Lawyers had a duty to avoid placing themselves in situations in which their personal interests were in conflict with those of their clients---Duty to avoid conflicts of interest was a salient aspect of the duty of loyalty they owed to their clients---Duty of loyalty shielded the performance of the lawyer's duty to advise clients from the taint of undue interference.

Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 19 ref.

(d) Negligence---

----'Causation', requirement of---Scope---Novus actus interveniens, principle of---Scope---More than one fault could cause a single injury so long as each of the faults was a true cause, and not a mere condition of the injury---Fault was a true cause of its logical, immediate and direct consequences---Such characterization was largely a factual matter, which depended on all the circumstances of the case---Person who committed a fault was not liable for the consequences of a new event that the person had nothing to do with and that had no relationship to the initial fault---Two conditions must be met for the principle of novus actus interveniens to apply; first, the causal link between the fault and the injury must be completely broken, and second, there must be a causal link between that new event and the injury.

(e) Counsel and client---

----'Duty to advise' clients---Scope---Lawyer referring clients to third-party professional advisors---Investment losses suffered by clients due to negligence of lawyer in referring---Client's ability to rely on advice given by his or her lawyer was central to the lawyer-client relationship and a client's acceptance of a lawyer's negligent advice could not shield the lawyer from liability---Fraud committed by a third party also did not shield from liability persons who failed to take required precautions---Where the risk of a decline in market prices or fraud by a third party materialized, and where lawyers had failed to abide by the standards of professional conduct that were meant to protect their clients against these very risks, they may be liable for their clients' investment losses. Per Côté, J, dissenting:

(f) Counsel and client---

----'Duty to advise' clients---Scope---Lawyer referring clients to third-party professional advisors---Whenever lawyers recommend other professionals, or expressed confidence in them, they must meet the standard of a reasonably competent, prudent and diligent lawyer in the same circumstances---Lawyers should make such inquiries as would enable them to acquire reasonable knowledge of professionals they recommended unless they already had relevant experience dealing with them---Not every professional error made in making such inquiries or in failing to make them would amount to a fault if the lawyer's conduct did not depart from the standard expected, and courts must be careful not to assess recommendations in light of facts discovered subsequently---Moreover, referring lawyers were not required to monitor the advice given by the professionals they recommended, as this would defeat the purpose of referral. [Minority view]

Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 427-28 and Phillips v. Naamani, 1998 CanLII 9332 (Que. Sup. Ct.), at paras. 66-67 ref.

(g) Counsel and client---

----'Duty to advise' clients---Scope---Lawyers' duty to advise generally included obligations to inform the client of the relevant facts, to explain available options and their implications, and to recommend a course of action---Yet, the precise content of such duty was highly dependent on the circumstances, including the scope of the mandate, the obligations assumed by the lawyer and his or her areas of expertise.

Per Côté, J

(h) Counsel and client---

----Duty to avoid conflict of interest---Duty of loyalty towards client---Scope---Analysis of an alleged fault related to the duty of loyalty involved a question of mixed fact and law---Analysis of an alleged conflict of interest was inherently fact-based and alleged conflicts must be assessed on a case-by-case basis---Not every potential violation of the duty of loyalty would give rise to an action in civil liability---Court must analyze the nature and the circumstances of the alleged conflict for the purpose of characterizing the violation and, if warranted, determining the appropriate remedy. [Minority view] Per Côté, J

(i) Negligence---

----'Causation', requirement of---Scope---Fundamental principle of civil liability was that a person was liable only for injury caused by his or her own fault---True cause was established when the plaintiff proved that the injury was a logical, immediate and direct consequence of the fault, and it did not suffice to show that the fault increased the likelihood of the injury occurring if there was no evidence that the fault directly caused the injury either in whole or in part---Analysis of causation remained a context-based exercise which did not lend itself to legal theorizing---Trier of fact had to draw a line, or identify a breaking point, between the consequences that flowed directly and immediately from the fault and the others.

Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 132 and Stellaire Construction Inc. v. Ciment Québec Inc., 2002 CanLII 35591 (Que.), at para. 39 ref.

Per Côté, J

(j) Counsel and client---

----Professional duties of lawyer, breach of---Causation---Proving breaches of a lawyer's professional duties did not suffice to establish civil liability in the absence of a causal link to an injury (suffered by the client). [p. 810] XX

Douglas C. Mitchell, Audrey Boctor and Olga Redko for the Appellants.

Pierre Bienvenu, Azim Hussain, Andres C. Garin and Frédéric Wilson for the Respondents.

Date of hearing: 19th March, 2018.

2019 S C M R 1460

[Supreme Court of Canada]\

Present: Wagner, C.J. Moldaver, Karakatsanis, Brown and Martin, JJ

TOM LE---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

And

Director of Public Prosecutions, Criminal Lawyers' Association of Ontario, Canadian Muslim Lawyers Association, Canada Without Poverty, Canadian Mental Health Association, Manitoba and Winnipeg, Aboriginal Council of Winnipeg, Inc., End Homelessness Winnipeg Inc., Federation of Asian Canadian Lawyers, Chinese and Southeast Asian Legal Clinic, Canadian Civil Liberties Association, Scadding Court Community Centre, Justice for Children and Youth and Urban Alliance on Race Relations---Interveners

Decided on 31st May, 2019.

(On appeal from the Court of Appeal for ONTARIO)

Per Brown and Martin JJ; Karakatsanis, J concurring; Wagner C.J. and Moldaver, JJ dissenting only with respect to admissibility of evidence

(a) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Detention by police---Physical and psychological detention---Scope---Prohibition of arbitrary detention [under section 9 of the Canadian Charter of Rights and Freedoms] was meant to protect individual liberty against unjustified state interference; it limited the state's ability to impose intimidating and coercive pressure on citizens without adequate justification---Not every police-citizen interaction was a detention (within the meaning of section 9)---Detention required significant physical or psychological restraint---Psychological detention by the police could arise in two ways, first, where the claimant was legally required to comply with a direction or demand by the police; or, second, where a claimant was not under a legal obligation to comply with a direction or demand, but a reasonable person in the subject's position would feel so obligated, and concluded that they were not free to go---Even absent a legal obligation to comply with a police demand or direction, and even absent physical restraint by the state, a detention existed in situations where a reasonable person in the accused's shoes would feel obligated to comply with a police direction or demand and that they were not free to leave.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras 20 & 26; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19 and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3 ref.

(b) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Detention of an individual by police---Question as to whether an individual was in detention---Factors to be considered by court---Prohibition of arbitrary detention [in section 9 of the Canadian Charter of Rights and Freedoms] was meant to protect individual liberty against unjustified state interference---In determining whether detention had occurred (for the purposes of section 9), it was essential to consider all of the circumstances of the police encounter---Three non-exhaustive factors could aid in such analysis; first, the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; second, the nature of the police conduct---With respect to the place where the interaction occurred and the mode of entry, the nature of any police intrusion into a home or backyard was reasonably experienced as more forceful, coercive and threatening than when similar state action occurred in public---Coming over the fence to enter a private residence conveyed a show of force---Living in a less affluent neighbourhood in no way detracted from the fact that a person's residence was a private and protected place---Reputation of a particular community or the frequency of police contact with its residents did not in any way license police to enter a private residence more readily or intrusively than they would in a community with higher fences or lower rates of crime---Police conduct towards others would also likely have an impact on how a reasonable person in the accused's shoes would perceive the unfolding situation---Witnessing a repeated sequence of command and compliance would lead a reasonable person to believe that they were not free to leave and that even their physical movements were subject to police control---In addition, the overall duration of an encounter may contribute to the conclusion that a detention occurred, although a detention could occur within a matter of seconds, depending on the circumstances---Third and last factor was the particular characteristics or circumstances of the individual---Courts must appreciate that individuals in some communities may have different experiences and relationships with police than others and such factor may impact upon their reasonable perceptions of whether and when they were being detained---Reasonable person who had been stopped by the police on multiple prior occasions would more likely perceive that it was necessary to simply submit to police demands---What a reasonable person may perceive may also be influenced by age and the knowledge, life experience and discernment associated with that age group---Focus of such analysis should not be on what was in the accused's mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonably perceived by a person imbued with the experiences that accompany the accused's particular circumstances.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353at para 31 and R. v. Therens, [1985] 1 S.C.R. 613 ref.

(c) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Whether detention was arbitrary---'Implied license doctrine' and 'common law power to detain'---Scope and distinction---Where a detention was established, a court must consider whether the detention was arbitrary---Detention must be authorized by law, the authorizing law must not be arbitrary, and the manner in which the detention was carried out must be reasonable---Implied license doctrine, allowed the police, or any member of the public, on legitimate business to proceed from the street to the door of a house so as to permit convenient communication with the occupant of the dwelling---Common law power to detain for investigative purposes only allowed the police to detain an individual for investigative purposes where, in the totality of circumstances, there were reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime---Suspect's presence in a so-called high crime area was not by itself a basis for detention and the mere presence of non-suspects in an area frequented days or weeks earlier by a person of interest could not furnish such a basis.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras 54 & 56; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Evans, [1996] 1 S.C.R. 8, at para. 15 and R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45 & 47 ref.

(d) Criminal law---

----Evidence---Fundamental rights---Evidence obtained by police in violation of a person's Fundamental rights---Admissibility of such evidence---Scope---Where evidence was obtained in a manner that infringed a Fundamental right or freedom [under the Canadian Charter of Rights and Freedoms ('the Charter')] , such evidence must be excluded if it was established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute [section 24(2) of the Charter]---While the exclusion of evidence may provoke immediate criticism, the focus was on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of (Charter) rights, and not on the impact of state misconduct upon the criminal trial---Total sum, and not the average, of the seriousness of the (Charter) infringing conduct and the impact of the breach on the (Charter) protected interests of the accused determined the pull towards exclusion of evidence---More serious the state-infringing conduct and the greater the impact on the (Charter) protected interests, the stronger the case for exclusion---Where such inquiries, taken together, made a strong case for exclusion, society's interest in an adjudication of the case on its merits would seldom if ever tip the balance in favour of admissibility---When considering the first line of inquiry - 'the seriousness of the (Charter) infringing conduct' - for state misconduct to be excused as a good faith(and, therefore, minor) infringement of (Charter) rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law---Second line of inquiry - 'the impact on the (Charter) protected interests of the accused' - entailed asking whether and to what extent, in the totality of the circumstances, the (Charter) breach actually undermined the interests protected by the right infringed---Third line of inquiry - 'society's interest in adjudication of the case on its merits' - typically pulled toward inclusion of the evidence---Courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutional norms reflected in the Court's (Charter) jurisprudence that had emphasized the importance of individuals' liberty interests.

Per Moldaver, J

(e) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Detention by police---Physical and psychological detention---Scope---Prohibition of arbitrary detention [under section 9 of the Canadian Charter of Rights and Freedoms (the 'Charter']protected the right to be free from arbitrary detention or imprisonment---Detention [under S. 9 of the Charter] referred to a suspension of the individual's liberty interest by a significant physical or psychological restraint---Whether a psychological detention had occurred was determined objectively, having regard to all the circumstances--- Onus was on the applicant to show that in the circumstances, he or she was effectively deprived of his or her liberty to choose whether to stay or leave---While the test was objective, the individual's particular circumstances and perceptions at the time may be relevant in determining whether a reasonable person in the circumstances would perceive himself or herself as not being free to go---Factors in determining whether and when a psychological detention had occurred included the circumstances giving rise to the encounter as they would reasonably be perceived by the individual, the nature of the police conduct, and the particular characteristics or circumstances of the individual, where relevant.

(f) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Psychological detention of an individual by police---Question as to whether an individual was in detention---Factors to be considered by the court---Prohibition of arbitrary detention [in section 9 of the Canadian Charter of Rights and Freedoms (the 'Charter')] was meant to protect individual liberty against unjustified state interference---Certain factors could aid in the analysis of determining whether an individual was in (psychological) detention by police---If it could be shown that the police conduct at issue was aggressive, then that would be a significant factor in such analysis---Police conduct towards third parties could influence how a reasonable person in the claimant's shoes would perceive his or her own freedom of movement---Setting in which the police interaction took place and the duration of the police encounter were also relevant considerations---In particular, a police intrusion into a private space may reasonably be perceived as communicating some measure of control over the occupants---Unlawful police entry could generally be expected to have an intimidating effect and may therefore cause a reasonable person to be less inclined to believe he or she was free to walk away---Particular characteristics or circumstances of the individual were also an important factor to consider---Person may experience a police interaction differently depending on his or her age, race, life experience, and other personal characteristics, and such factors should be taken into account in the (section 9) analysis.

R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 ref.

Per Moldaver, J, dissenting [Minority view]

(g) Fundamental rights---

----Right to be free from arbitrary detention---Scope---Detention by police---Police questioning---As a general rule, only when the police moved from general questioning to focused interrogation would a detention result---General neighbourhood policing and preliminary or exploratory questioning were generally insufficient to effect a detention. [Minority view]

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 ref.

Per Moldaver, J.

(h) Criminal law---

----Evidence---Fundamental rights---Evidence obtained by police in violation of a person's Fundamental rights---Admissibility of such evidence---Scope---Where evidence was obtained in a manner that infringed a Fundamental right or freedom (under the Canadian Charter of Rights and Freedoms ('the Charter')], such evidence must be excluded if it was established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute [section 24(2) of the 'Charter')]---First line of inquiry to be considered was the seriousness of the (Charter) infringing state conduct; this involved a consideration of whether admission of the evidence would send a message to the public that the courts, as institutions responsible for the administration of justice, effectively condoned state deviation from the rule of law---Court must fix the police misconduct on a spectrum ranging from the minor and inadvertent to the wilful or reckless---Appellate Court could not simply substitute its own view of the police conduct for that of the trial judge---Second line of inquiry focused on the impact of the (Charter) breaches on the (Charter) protected interests of the applicant---Impact of a (Charter) breach may range from fleeting and technical to profoundly intrusive---More serious the impact, the greater the risk that admission of the evidence may signal to the public that (Charter) rights were of little avail, thereby bringing the administration of justice into disrepute---In addition, the discoverability of the evidence was a relevant consideration in assessing the impact on the individual's (Charter) protected interests---Third line of inquiry considered society's interest in the adjudication of the case on its merits---Society generally expected that a criminal allegation would be adjudicated on its merits, and it had a collective interest in ensuring that those who transgressed the law were brought to trial and dealt with according to the law---Such inquiry asked whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion---Reliability of the evidence, its importance to the State's case, and the seriousness of the offences were all factors to be considered.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20 ref.

Emily Lam and Samara Secter, for the appellant.

Sandy Tse and Amy Rose, for the respondent.

Janna A. Hyman and Carole Sheppard, for the intervener the Director of Public Prosecutions.

Jonathan Dawe and Sherif M. Foda, for the intervener the Criminal Lawyers' Association of Ontario.

Faisal Mirza, for the intervener the Canadian Muslim Lawyers Association.

Gerald Chan and Lindsay Board, for the interveners the Federation of Asian Canadian Lawyers and the Chinese and Southeast Asian Legal Clinic.

Kate Robertson, Danielle Glatt and Sean Lewis, for the intervener the Canadian Civil Liberties Association.

Tina Lie, for the intervener the Scadding Court Community Centre.

2019 S C M R 143

[Supreme Court of UK]\

Present: Lady Hale, President, Lord Reed, Deputy President, Lord Kerr, Lord Hodge and Lord Lloyd-Jones

DARNLEY---Appellant

Versus

CROYDON HEALTH SERVICES NHS TRUST---Respondent

Decided on 10th October, 2018.

(On appeal from [2017] EWCA Civ 151)

(a) Tort---

----Negligence--- Duty of care--- Essential ingredients--- Scope---Damages, claim for---Scope---Common law (in United Kingdom's jurisdiction) had abandoned the search for a general principle capable of providing a practical test applicable in every situation in order to determine whether a duty of care was owed and, if so, what was its scope---Ingredients of foreseeability of damage, proximity and fairness did not require a re-evaluation of whether those criteria were satisfied on every occasion on which an established category of duty was applied---Where the existence of a duty of care had previously been established, a consideration of justice and reasonableness had already been taken into account in arriving at the relevant principles and it was, normally, only in cases where the court was asked to go beyond the established categories of duty of care that it would be necessary to consider whether it would be fair, just and reasonable to impose such a duty

Caparo Industries plc v Dickman [1990] 2 AC 605 per Lord Bridge at p 617; Michael v Chief Constable of South Wales Police (Refuge intervening) [2015] AC 1732 per Lord Toulson at para 106; Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595 per Lord Reed at para 24 and James-Bowen v Comr of Police of the Metropolis [2018] 1 WLR 402 ref.

(b) Tort---

----Negligence---Duty of care---Hospital receptionist---Inaccurate information---Duty of non-medical hospital staff to take reasonable care not to provide misleading information to patients which might foreseeably cause physical injury---Scope---Question as to whether an emergency receptionist at a hospital should or should not be found negligent for providing inaccurate waiting time information to a patient who, in reliance upon that information, left the emergency department and, as a result, suffered permanent brain damage and disabilities---Claimant suffered a head injury in an assault and visited a hospital's emergency department---Claimant told the receptionist that he had suffered a head injury and felt as if he might collapse - Receptionist informed the claimant that he would be seen within 4 to 5 hours---Said information was erroneous, as the claimant would have been seen by a triage nurse within 30 minutes of his arrival---Claimant left the hospital after 19 minutes because he was feeling worse and was unwilling to wait for up to four to five hours as informed by the receptionist---Later the same evening his condition deteriorated and he was taken to the hospital, where a scan confirmed serious head injuries and despite efforts of the hospital it was too late to prevent the development of permanent brain damage caused to the claimant---Expert evidence suggested that, if the deterioration in the claimant's condition had occurred at the hospital, he would have been treated promptly and made a near full recovery---Claimant brought proceedings against the local health trust ("defendant") that ran the hospital for damages in negligence, contending that the hospital's receptionist had been in breach of duty by failing to provide accurate information about waiting times---Held, that present case fell squarely within an established category of duty of care as it had long been established that such a duty was owed by those who provided and ran a casualty department to persons presenting themselves complaining of illness or injury and before they were treated or received into care in the hospital's wards---Duty was one to take reasonable care not to cause physical injury to the patient---In the present case, as soon as the claimant had attended the health trust's (defendant's) hospital seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been "booked in", he was accepted into the system and entered into a relationship with the health service of patient and health care provider---Claimant's complaint of physical injury rather than economic loss was a distinct and recognisable situation in which the law imposed a duty of care---Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extended to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury, and therefore, it was not necessary to consider whether it was fair, just and reasonable to impose a duty of care---Duty of care was owed by the defendant health trust and it was not appropriate to distinguish, in such regard, between medical and non-medical staff---In the specific context of the present case, where misleading information was provided as to the time within which medical attention might be available, it was not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care---In the present case, questions as to the existence and scope of a duty of care owed by the defendant should not depend on whether the misleading information was provided by a person who was or was not medically qualified---Defendant had charged its non-medically qualified staff with the role of being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability---While it was not the function of reception staff to give wider advice or information in general to patients, it was the duty of the defendant to take care not to provide misinformation to patients, and that duty was not avoided by the misinformation having been provided by reception staff as opposed to medical staff---Receptionist in an emergency department could not, of course, be expected to give medical advice or information but he or she could be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance---Standard required was that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care---Responding to requests for information as to the usual system of operation of the emergency department was well within the area of responsibility of the receptionists---In the present case, the receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury would be seen by a triage nurse and they accepted that the usual practice was that such a patient would be told that they would be seen by a triage nurse within 30 minutes of arrival or as soon as possible---No reason had been suggested by the defendant as to why the claimant was not told of the standard procedure---Information provided to the claimant that he would have to wait for 4 to 5 hours was incomplete, misleading and negligent---Claimant's decision to leave after 19 minutes had been reasonably foreseeable and had been made, at least in part, on the basis of the misleading information provided by the receptionist, therefore his departure from the emergency department had not broken the chain of causation which had resulted in his injury---Appeal filed by claimant was allowed in circumstances and the case was remitted to the Trial Court for assessment of damages.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at pp 435-436; Kent v Griffiths [2001] QB 36 and Wilsher v Essex Area Health Authority [1987] QB 730, 750-751 ref.

Simeon Maskrey QC and Jeremy Pendlebury (instructed by Russell-Cooke LLP) for Appellant.

Philip Havers QC, Bradley Martin QC and Ruth Kennedy (instructed by Capsticks Solicitors) for Respondent.

2019 S C M R 663

[Supreme Court of UK]\

Present: Lord Kerr, Lord Sumption, Lord Hodge, Lord Lloyd-Jones, Lord Briggs, Lady Arden and Lord Kitchin TAKHAR---Appellant

Versus

GRACEFIELD DEVELOPMENTS LIMITED and others---Respondents

Decided on 20th March, 2019.

(On appeal from: [2017] EWCA Civ 147)

Per Lord Kerr, J; Lord Hodge, Lord Lloyd-Jones and Lord Kitchin, JJSC agreeing; Lord Sumption, Lord Briggs and Lady Arden also agreeing but with their own reasons.

(a) Fraud---

----Judgment obtained by fraud---'Cause of action estoppel' and 'issue estoppel' [Res judicata]---Scope---Setting aside of judgment obtained by fraud---Pre-requisites---Question as to whether the appellant had to demonstrate that the alleged fraud could not have been uncovered with reasonable diligence in advance of the obtaining of the judgment---Certain properties belonging to the appellant had fallen into disrepair---Appellant turned to the defendants for help---Defendants set up a company with the appellant and defendants as shareholders and the properties were transferred into the name of the company---Appellant issued proceedings against the company and the defendants claiming that the properties had been transferred as a result of undue influence or other unconscionable conduct---During the proceedings, a written profit share agreement, apparently signed by the appellant was produced, backing-up the defendants' version of events---Appellant made an application to adduce handwriting expert evidence shortly before trial, which the trial judge rejected and no allegation of forgery or fraud was made---Following the trial, appellant's new solicitors instructed a handwriting expert, who concluded that the signature on the profit share agreement were forged and the document was a forgery---Appellant issued further proceedings seeking to set aside the original judgment---Defendants and the company contended that the appellant's claim was an abuse of process as the matter had already been decided and any fraud could have been discovered at the time of the original proceedings---[Per Lord Kerr, J: Person who applied to set aside an earlier judgment on the basis of fraud did not have to demonstrate that the evidence of such fraud could not have been obtained with reasonable diligence in advance of the earlier trial---Where it could be shown that a judgment had been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence should not be imposed on the party seeking to set aside the judgment---Two qualifications with respect to said principle had to be kept in mind;, firstly, where fraud had been raised at the original trial and new evidence as to the existence of the fraud was prayed in aid to advance a case for setting aside the judgment, it seemed that it could be argued that the court having to deal with that application should have a discretion as to whether to entertain the application, but since such question did not arise in the present appeal, no final view could be expressed upon the same---Secondly, in some circumstances, a deliberate decision may have been taken not to investigate the possibility of fraud in advance of the first trial, even if that had been suspected---If that could be established, again, it was appropriate that the court should have a discretion whether to allow an application to set aside the judgment but, once more, no final view could be laid down for such proposition as it was not in issue in the present appeal---In the present case the appellant did suspect that there may have been fraud but it was clear that she did not make a conscious decision not to investigate it---To the contrary, she sought permission to engage an expert but, her application was refused by trial judge---Existence or non-existence of fraud had not been decided in the earlier proceedings before the trial Court; it was a new issue in the present appeal, and it did not involve the re-litigation of an identical claim---Appellant's case should therefore be allowed to proceed to trial]---[Per Lord Briggs, J: Present case involved a conflict between two important and long-established principles of public policy, firstly, the principle that fraud unraveled all ('the fraud principle') and, secondly, the principle that there must come an end to litigation ('the finality principle')---In the present case, the fraud principle should prevail---Fraud allegedly committed by the defendants, if proven, was a very serious, pre-meditated, carefully planned and executed fraud which was instrumental in the defeat of appellant's claim, and plainly aimed from start to finish at deceiving the court about the central issue in the case---For such reasons the failure of the appellant to use reasonable diligence was by no means at the more serious end of the scale---Expert evidence obtained by the appellant at present appeal stage, although thus far untested or opposed, plainly gave her a real (rather than merely arguable) prospect of success---Appellant's application for setting aside the trial Court's judgment allegedly obtained by fraud came nowhere near being categorised as an abuse of the process].

Jonesco v Beard [1930] AC 298 ref.

(b) Fraud---

----Law does not expect people to arrange their affairs on the basis that others may commit fraud.

The Ampthill Peerage [1977] AC 547, 569 and Hip Foong Hong v H Neotia & Co [1918] AC 888, 894 ref.

(c) Fraud---

----Judgment obtained by fraud---Setting aside of such judgment---Scope---Fraudulent individual should not profit because their opponent failed to act with reasonable diligence---Person who obtained a judgment through fraud deceived not only their opponent but also the court and the rule of law---Moreover it would also seem wrong if a person could be sent to prison for fraudulent conduct and yet remain able to enforce a judgment they obtained because of that fraud---Survey of case law from jurisdictions of Australia and Canada to demonstrate the approach adopted by the courts in said jurisdictions for setting aside judgments based on fraud, stated.

McDonald v McDonald (1965) 113 CLR 529; Toubia v Schwenke [2002] NSWCA 34; (2002) 54 NSWLR 46 and Canada v Granitile Inc (2008) 302 DLR (4th) 40 ref.

Per Lord Sumption, J; Lord Hodge, Lord Lloyd-Jones and Lord Kitchin, JJSC agreeing.

(d) Fraud---

----Judgment obtained by fraud, setting aside of---Scope---'Cause of action estoppel' and 'issue estoppel'---Action to set aside an earlier judgment for fraud was not a procedural application but a cause of action---Such cause of action was independent of the cause of action asserted in the earlier proceedings and there could therefore be no question of 'cause of action estoppel'---Furthermore there was also no question of "issue estoppel", because the basis of the action was that the earlier decision was vitiated by fraud and could not bind the parties.

Director of Public Prosecutions v Humphrys [1977] AC 1, 21 ref.

(e) Abuse of process---

----Re-litigation of issues---Setting aside a judgment obtained by fraud---Scope---Abuse of process was a concept relating to the court's procedural powers---Where a question could have been but was not raised in earlier proceedings, the court's power to restrain abusive re-litigation was subject to a degree of flexibility---Re-litigation was abusive not only where the point could have been argued previously but where it should have been---Person was entitled to assume honesty on the part of others, so an application would only be abusive if a claimant deliberately decided not to investigate a suspected fraud or rely on a known one---If decisive new evidence was deployed to establish the fraud, an action to set aside the judgment would lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material.

Arnold v National Westminster Bank plc [1991] 2 AC 93; Johnson v Gore Wood & Co [2002] 2 AC; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, [2014] AC 160, para 22 and Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106 ref.

(f) Fraud---

----Judgment obtained by fraud, setting aside of---Scope---Standard of proof for fraud was high but, once it was satisfied, there were no degrees of fraud which could affect the right to have a judgment set aside.

Per Lord Briggs, J

(g) Abuse of process---

----Judgment obtained by fraud, setting aside of---Scope---Factors to be kept in mind by court when evaluating whether to set aside a judgment based upon fraud---Principle that fraud unravels all ('the fraud principle')---Principle that there must come an end to litigation ('the finality principle')---No bright-line boundary should be erected between types of case where the fraud principle or the finality principle should clearly prevail---In practice there would be too many cases where such supposed bright line was either invisible, or so technical that it failed to afford a basis for choosing between the two principles which accorded with justice, common sense or the duty of the court to retain control over its own process, and thereby protect it from abuse---Instead of a bright-line rule, the court should apply a fact-intensive approach to the question of whether a lack of diligence in earlier proceedings really did render a future claim to set aside a judgment on the basis of fraud an abuse of process---Such approach would in particular seek to weigh the gravity of the alleged fraud against the seriousness of the lack of due diligence, always mindful of the principle that victims of a fraud should not be deprived of a remedy merely because they were careless---When evaluating whether an application for setting aside a judgment based upon fraud was an abuse of process or not some of the relevant factors to be considered were the gravity of the fraud, the extent of the shortfall from the exercise of reasonable diligence, the centrality (or otherwise) of the fraudulent conduct to the outcome of the case, the extent to which the alleged fraud was specifically aimed at taking advantage of a lack of care in the preparation of the case by the alleged victim, the resources of the alleged victim during the first proceedings, the amount of toil, treasure and court time which would be thrown away by the setting aside of the judgment, the amount of the same which would be likely to be consumed by the trial of the fraud allegation and, if successful, the re-trial of the original claim, and even the apparent strength (or otherwise) of the allegation of fraud---However from start to finish, the question was whether the application really was an abuse of process.

(h) Abuse of process---

----Raising a new issue in a second claim that could have been raised in earlier proceedings---Even if the new matter could have been raised in the earlier proceedings, it did not follow, that it necessarily should have been---Rather, the court conducts an open-ended fact intensive evaluation of the question whether to raise the new matter in a second claim was or was not an abuse.

Johnson v Gore Wood & Co [2002] 2 AC 1 ref.

(i) Abuse of process---

----Scope---Abuse of process doctrine was one which both needed to be, and had conspicuously been, adaptive to changes in litigation culture over time, during which the pressures upon the courts and the readiness of the courts to conduct evaluative assessments in place of the mechanical application of bright-line rules was constantly changing.

(j) Fraud---

----Judgment obtained by fraud---Setting aside of such judgment---Scope---Exercise of reasonable diligence by the victim of fraud---'Cause of action estoppel' and 'issue estoppel'---Right to have a judgment set aside for fraud was a distinct cause of action recognised by the common law, which was not inherently conditional upon any requirement for the exercise of reasonable diligence in the proceedings leading to the impugned judgment---Right to have a judgment set aside for fraud was a claim for relief obtainable as of right (ex debito justitiae), rather than only by the invocation of a judicial discretion---Nor did said the right depend upon the seriousness of the fraud---Where no allegation of fraud was made in the proceedings leading to the impugned judgment, there was no question of cause of action or issue estoppel---Absence of reasonable diligence was not of itself a reason for staying the claim to set aside the judgment obtained by fraud as this would be to deny relief to foolish victims of a knave, merely because of their foolishness---Only reason to stay the application to set aside a judgment obtained by fraud was if the lack of reasonable diligence was so serious, in the context of all other relevant factors, that the application could really be categorised as abusive---Wrong in principle to say that the generality of applications to set aside judgments for fraud were entirely unaffected by questions about lack of reasonable diligence (or other factors pointing towards abuse) subject only to the identification of specific exceptional types where a judicial discretion may be engaged---True principle should be to recognise that such applications constituted the assertion of a legal right with which the court would only interfere if satisfied that the exercise of the right was abusive, but that all such applications by their nature gave rise to a risk of abuse with which the court was duty bound to engage, because they undermined finality by their mere pursuit, regardless of outcome---Re-litigation was always unfortunate, but it by no means followed that the reason for it was an abuse of process by the applicant.

(k) Fraud---

----Setting aside a judgment obtained by fraud---Scope---Assumption of honesty on part of opposite party---Not reasonable for a litigant always to assume that an opponent's case (and evidence in support of it) was honest, with a concomitant right to conduct litigation on that basis, and to re-litigate the same dispute whenever he could show, after judgment, an arguable case that his assumption was wrong.

Per Lady Arden, J

(l) Fraud---

----Setting aside a judgment obtained by fraud---Scope and exceptions---Reasonable diligence on part of victim---Finality of judgments---Scope---To set aside a judgment based on fraud there must be actual fraud: constructive fraud was not enough---Fraud must be one for which the defendant was responsible---In the generality of cases a judgment obtained by the fraud of the winning party should be rescinded because it was wrong in principle that a person who was proved to be a fraudster should obtain and retain the fruits of his fraud---However, a restriction could be justified in some special situations, for instance where both parties had colluded to deceive the court, where the fraud was not material to the outcome, where the judgment in the original action was obtained by perjury during the trial or where the fraud was in fact pleaded in the first action---Greater difficulty laid in situations where at the time of the original action a party suspected a fraud but did not investigate it or decided not to investigate it---Justice in such situation may not be so easily answered by allowing an unfettered right to bring a rescission action---Any restriction in such a situation would have to be complaint with the European Convention on Human Rights (ECHR) and derived from a rule which served the legitimate aim of proving a just solution, thus striking a fair balance between the relevant considerations and going no further than necessary, and which did not defeat the core right of access to court---Requirement of reasonable diligence on the party seeking to set aside the judgment was illogical as it automatically imposed a sanction which could be wholly disproportionate to the lack of diligence---Furthermore applying a robust rule favouring finality of judgments might encourage litigants to attempt to deceive the other parties or the court---Where deceit was practised on the court, the integrity of the legal system was put at risk and that was an important consideration against the rule of finality of judgments.

Montefiori v Montefiori (1762) 1 Black W 363, 96 ER 203 ref.

John Wardell QC and Andrew Mold (instructed by Tanners Solicitors LLP (Cirencester)) for Appellant.

Joseph Sullivan and Tom Nixon (instructed by Gowling WLG (UK) LLP (Birmingham)) for Respondents.

Date of hearing: 10th October, 2018.

2019 S C M R 711

[Supreme Court of UK]\

Present: Lord Wilson, Lord Sumption, Lord Carnwath, Lord Briggs and Lord Kitchin DEVANI---Appellant

Versus

WELLS---Respondent

Decided on 13th February, 2019.

(On appeal from: [2016] EWCA Civ 1106)

Per Lord Kitchin, J: Lord Wilson, Lord Sumption, Lord Carnwath and Lord Briggs, JJSC agreeing.

(a) Contract---

----Terms---Words and conduct of parties, significance of---Giving business efficacy to an agreement---Payment of real estate agent's commission---No express term regarding the event triggering entitlement to commission---Words exchanged and conduct of parties sufficient to entitle agent to his commission---Defendant was trying to sell his unsold flats---Claimant, who was an estate agent, telephoned the defendant with a view to marketing the flats---During the telephonic conversation the defendant asked the claimant about his fees and the claimant told him that his standard terms were 2% plus VAT---Claimant approached a housing trust which agreed to buy the flats, where after he sent the defendant an e-mail stating his fees again and asking him for the name of his solicitors so that he could send them an invoice---Claimant attached to the e-mail his standard terms of business which stated that the commission would become payable on exchange of contracts with the purchaser---Once the sale materialized, the defendant refused to pay the commission---Claimant initiated proceedings, claiming that he and the defendant had made a binding agreement on the phone when they first spoke; that he had introduced the defendant to a purchaser who had bought the flats and so he was entitled to his commission---Defendant contended that he was not obliged to pay as the terms of their agreement were too uncertain to amount to a binding contract because they never agreed the precise event which would entitle the claimant to his commission; and that the claimant had failed to comply with his statutory obligations under the relevant law for estate agents [i.e the Estate Agents Act, 1979] because he had not at the outset, or as soon as reasonably possible afterwards, expressly informed the defendant of the event which would trigger his entitlement to commission, nor had he provided that information in writing until after the introduction of the eventual purchaser---Trial Judge held that there was a binding contract between the parties, however, as the claimant had only submitted his written terms to the defendant after he had made the introduction to the purchaser (Housing Trust), the final award was subject to a one-third deduction to reflect the claimant's failure to comply with the statutory requirements (under the Estate Agents Act 1979)---On appeal, the Court of Appeal allowed the defendant's appeal and dismissed the claimant's cross-appeal, holding, that it was not permissible to imply a term into an agreement to make it complete; that the trigger event for the obligation to pay commission was of critical importance, and so its identification was essential for the formation of a binding agreement; and that, since it had not been identified until after the introduction of the purchaser, the agreement in issue was not enforceable---[Per Lord Kitchin, J: Court had to objectively assess whether the parties by their words and their conduct intended to create a legally binding relationship---In the present case in light of the of what the parties had said to each other in the telephone conversation, and the circumstances in which that conversation had taken place, was that they agreed that if the claimant found a purchaser of the flats, he would be paid his commission on completion of the purchase, payable from the proceeds of sale---Claimant found the Housing Trust and it became the purchaser on completion of the transaction---At that point, claimant became entitled to his commission and it was payable from the proceeds of sale---In a case, such as the present one, where there was no express term concerning the agent's entitlement to commission, and it was essentially a "find me a purchaser" bargain, and the agent introduced a prospective purchaser to whom the property was sold, then a reasonable person would understand that the parties intended the commission to be payable upon completion---In such circumstances it was therefore unnecessary to imply a term into the agreement between the defendant and the claimant, however, had it been necessary, the court would not hesitate in holding that it was an implied term of the agreement that payment would fall due on completion of the purchase of the property by a person whom the claimant had introduced---Obligation to make payment of the commission on completion was required to give the agreement business efficacy and would not go beyond what was necessary for that purpose---Claimant did fail to comply with his statutory obligations as an estate agent (under section 18 of the Estate Agents Act, 1979) because, in particular, he did not at the outset, or as soon as reasonably practicable thereafter, expressly inform the defendant of the event which would trigger his entitlement to commission; nor did he provide any of that information in writing---However, in the circumstances of the present case, the defendant's culpability was not so great as to justify dismissal of his claim for commission---Trial judge had assessed the extent of the claimant's culpability with care and had recognised that the claimant could and should have provided his terms of business to the defendant at the outset but had also had regard to the fact that the job needed to be done urgently, that the defendant was abroad, that events moved very quickly and that the effective period of delay was less than one week---Moreover, there was no finding that the claimant had acted improperly in any other way]---[Per Lord Briggs, J (agreeing): In the present case it was proved that there was a short telephone call initiated by the claimant, who introduced himself as an estate agent, and the defendant, who the claimant knew wanted to sell the outstanding flats---Claimant offered his services at an expressly stated commission of 2% plus VAT, and it was known to both of them that the defendant was looking for a buyer or buyers so that he could sell the flats, and it was plain from the context, and from the conduct of the parties towards each other, that the claimant was offering to find one or more buyers for those flats---Express reference by the claimant to the 2% commission was, in the context, clearly referable to the price receivable by the defendant upon any sale or sales of those flats achieved to a person or persons introduced by the claimant---Furthermore it was evident from the fact that nothing further was said before the conversation ended that there was an agreement, intended to create legal relations between them, for which purpose nothing further needed to be negotiated---Sufficiently certain and complete contract had been concluded between the parties, as a matter of construction of their words and conduct in their context rather than just by the implication of terms]---Claimant's appeal was allowed, whereas the defendant's cross-appeal was dismissed.

RTS Flexible Systems Ltd v Molkerel Alois Mutler CmbH [2010] UKSC 14; [2010] 1 WLR 753, para 45; Fowler v. Bratt [1950] KB 96; Midgley Estates v. Hand [1952] 2 QB 432; Dennis Reed Ltd v. Goody [1950] 2 QB 277; Marks & Spencer plc v. BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72; [2016] AC 742 and James v. Smith [1931] 2 KB 317 ref.

Per Lord Kitchin, J.

(b) Contract---

----Formation---Terms---In certain situations it may be the case that the words and conduct relied upon by the parties were so vague that the court was unable to identify the terms on which the parties had reached agreement---However, the courts were reluctant to find an agreement was too vague or uncertain to be enforced where it was found that the parties had the intention of being contractually bound and had acted on their agreement.

G Scammel & Nephew Ltd v. HC and JG Ouston [1941] AC 251, 268 ref.

(c) Contract---

----Implied terms---Business efficacy---Under laws of contract there was no general rule that it was not possible to imply a term into an agreement to render it sufficiently certain or complete in order to constitute a binding contract---Moreover, where it was apparent that the parties intended to be bound and to create legal relations, it might be permissible to imply a term to give the contract such business efficacy as the parties must have intended---Accordingly where the parties intended to create legal relations and had acted on that basis, it might be permissible to imply a term into the agreement between them where it was necessary to give the agreement business efficacy, or the term was so obvious that "it goes without saying", and where, without that term, the agreement would be incomplete or too uncertain to be enforceable.

Per Lord Briggs, J.

(d) Contract---

----Terms--- Words and conduct of parties, significance of---Occasionally, in relation to agreements, the context in which the words were used, and the conduct of the parties at the time when the contract was made, laid out as much, or even more, about the essential terms of the bargain than did the words themselves.

Andrew Warnock QC, David Giles and Laura Giachardi (instructed under the Bar Council's Direct Access Rules) for Appellant.

Andrew Butler QC and Edward Blakeney (instructed by Wedlake Bell LLP) for Respondent.

Date of hearing: 11th October, 2018.

2019 S C M R 885

[Supreme Court of UK]\

Present: Lord Reed, Deputy President, Lord Kerr, Lady Black, Lord Briggs and Lord Kitchin

STOCKER---Appellant

Versus

STOCKER---Respondent

Decided on 3rd April, 2019.

(On appeal from [2018] EWCA Civ 170)

(a) Tort---

----Defamation---Libelous statement---Meaning---Proper approach for determining the meaning of a potentially libelous statement---Where a statement had more than one plausible meaning, the question of whether it was defamatory would only be answered by the judge deciding that one particular meaning should be ascribed to it---Where a range of meanings was available and where it was possible to light on one meaning which was not defamatory among a series of meanings which were, the court was not obliged to select the non-defamatory meaning---Touchstone remained what would the ordinary reasonable reader consider the words to mean---Simply because it was theoretically possible to come up with a meaning which was not defamatory, the court was not impelled to select that meaning---Primary role of the court was to focus on how the ordinary reader would construe the words---In order to fulfil such obligation the court should be particularly conscious of the context in which the statement had been made and consider the hypothetical reader to be a person who would read the publication and react to it in a way which reflected the circumstances in which it had been made---Use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement was not advisable---Such meaning was to be determined according to how it would be understood by the ordinary reasonable reader; it was not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made.

(b) Tort---

----Defamation---Libel---Social media posts---Approach to be adopted by court for determining whether words used in social media posts were libelous---Justification, defence of---Scope---Defendant posted on a social media platform that the claimant (defendant's ex-husband) "tried to strangle" her; that he had been removed from their home following a number of threats that he had made, and that the police felt that he had broken the terms of a non-molestation order---Claimant, who did not deny that he had grasped the defendant by the neck and had also breached a non-molestation order, brought an action for defamation (libel) against the defendant, alleging that the words "tried to strangle" meant "tried to kill" and were defamatory---Defendant denied that the words had such meaning and pleaded justification by contending that words "tried to strangle" would be understood to mean that the claimant had grasped her by the neck and inhibited her breathing so as to put her in fear of being killed---Trial judge relied on dictionary definition of the word "strangle" and found defendant's words defamatory on the basis that claimant's intention was to silence and not to kill the defendant, and that the social media post was a distorting overstatement of what had in fact occurred and had the meaning that the claimant was a man who was dangerous to any woman with whom he lived---Court of Appeal dismissed the defendant's appeal---Held, that a critical circumstance in the present case was that the court was dealing with a social media post which was read by a certain type of reader; the social media user---In deciding how a social media post would be interpreted by such a reader the judge had to keep in mind how such postings were made and read, and it was imperative to ascertain how a typical, ordinary, reasonable social media user would interpret the message---In such a situation it would be wrong to engage in an elaborate analysis of a social media post or its theoretically or logically deducible meaning---Meaning ascribed to the post should reflect the circumstance that the social media platform in question (Facebook) was a casual medium in the nature of a conversation rather than carefully chosen expression, and it was pre-eminently one in which the reader read and passed on---People scrolled through social media platforms (such as Facebook) quickly; they did not pause and reflect; they did not ponder on what meaning the statement might possibly bear, and their reaction to a post was impressionistic and fleeting---Once the verb, "strangle" was removed from its context and given only two possible (dictionary) meanings before it was reconnected to the word, "tried" the chances of a strained meaning were increased---Words must be taken together so as to determine what the ordinary reasonable reader would understand them to mean---Judge had fallen into legal error in relying on the dictionary definition as dictating the meaning of the defendant's social media post and had failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it---Ordinary reader of the social media platform (Facebook) would not have spliced the defendant's post into separate clauses or isolated individual words and contemplated their possible significance, but would unquestionably have interpreted the post as meaning that the claimant had grasped his wife (the defendant) by the throat and applied force to her neck rather than trying deliberately to kill her---If the defendant had meant to convey that her husband/claimant had attempted to kill her, why would she not say so explicitly---In view of the trial judge's error of law, his decision as to the meaning of the social media post could not stand---In such circumstances the Court of Appeal should have considered afresh the meaning of the post but it had not done so---In the present case, it was not disputed that the claimant grasped his wife (defendant) by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place---Claimant further did not dispute that he breached a non-molestation order, nor had it been asserted that he did not utter threats to the defendant---Many would consider such circumstances to be sufficient to establish that the claimant was a dangerous and disreputable man, which was the justification which the defendant sought to establish---Defendant was entitled to succeed on the defence of justification.

Jeynes v News Magazines Ltd [2008] EWCA Civ 130; Monroe v. Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68; Monir v Wood [2018] EWHC (QB) 3525 and Smith v. ADVEN plc [2008] EWHC 1797 (QB) ref.

David Price QC and Jonathan Price (instructed by David Price Solicitor Advocate) for Appellant.

Manuel Barca QC and Claire Overman (instructed by SA Law LLP) for Respondent.

2019 S C M R 1173

[Supreme Court of UK]\

Present: Lady Hale, President, Lord Reed, Deputy President, Lord Wilson, Lord Hodge and Lady Black

GN (through his litigation friend "The Official Solicitor") and another---Appellants

Versus

POOLE BOROUGH COUNCIL---Respondent

Decided on 6th June, 2019.

(On appeal from [2017] EWCA Civ 2185)

(a) Negligence---

----Public body (local authority)---Duty of care---Survey of case-law on the subject of a local authority's duty of care towards children affected by the discharge of its statutory functions.

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 https://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1995/9.html; Barrett v Enfield London Borough Council [2001] 2 AC 550; Phelps v Hillingdon London Borough Council [2001] 2 AC 619 and JD v East Berkshire Community Health NHS Trust and others [2005] UKHL 23; [2005] 2 AC 373 ref.

(b) Negligence---

----Duty of care---Public bodies (local authority)---Vicarious liability---Local housing authority in question provided a mother and her two children ('the claimants') with accommodation owned by a third party---Claimants were subjected to harassment, abuse and anti-social behaviour from a neighbor at the accommodation provided---Claimants claimed damages against the local housing authority for its negligence and contended that if the local authority had carried out its duties under the Children Act, 1989 (United Kingdom) competently, it would either have moved the family as a whole or moved the claimants out of the home---Question as to whether the local authority owed common law duty of care to the children to protect them from the physical and psychological damage caused by a third party---Held, that the basic premise for determining the existence or non-existence of a duty of care on the part of a public authority was that public authorities were generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation required a departure from those principles---Public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and was therefore excluded by, the legislation from which their powers or duties were derived---Public authorities did not owe a duty of care at common law merely because they had statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm---Public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation---In the present case, when the local authority had investigated and monitored the claimants' position, it had not been involved in the provision of a service to the claimants and their mother on which they could be expected to rely---Nor could it be said that the claimants and their mother had entrusted their safety to the local authority, or that it had accepted that responsibility---Nor had the local authority taken the claimants into its care, and thereby assumed responsibility for their welfare---Nature of the statutory functions of the local authority relied on in the particulars of claim did not in itself entail that the local authority assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care---Of course, it was possible that even where no such assumption could be inferred from the nature of the function itself, it could nevertheless be inferred from the manner in which the public authority had behaved towards the claimant in a particular case---In the present case, however, the particulars of claim did not provide a basis for leading evidence about any particular behaviour by the local authority towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred---Nature of the statutory functions [under the Children Act 1989 (United Kingdom)] on which the claimants relied in their particulars of claim did not in itself entail that the local authority had assumed or undertaken a responsibility to perform those functions with reasonable care or that its employees had assumed a responsibility towards the claimants to perform their functions with reasonable care so as to make the local authority vicariously liable for any negligence by its employees---No basis was found for the breach of duty alleged in the particulars of claim by the local authority's failure to remove the claimants from their mother's home since the harm suffered by the claimants was not attributable to lack of reasonable parental care---Particulars of claim did not disclose any recognisable basis for a cause of action against the local authority, and, accordingly, the claim should not proceed to trial.

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 https://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1995/9.html held not to be good law.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736; X v Hounslow London Borough Council [2009] EWCA Civ 286; [2009] 2 FLR 262 and Customs and Excise Comrs v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181 ref.

(c) Negligence---

----Duty of care---Public bodies (local authority)---Social workers employed by a local authority---Vicarious liability---Question as to whether such social workers owed duty of care to the claimants to whom they provided social services---Social workers were under a contractual duty to the local authority to exercise proper professional skill and care---To determine whether such social workers, in addition, also owed a similar duty to the claimants (persons they provided services to) depended on whether they assumed a responsibility towards such claimants to perform their functions with reasonable care---Concept of an assumption of responsibility was not confined to the provision of information or advice; it could also apply where, a claimant entrusted the defendant with the conduct of his affairs, in general or in particular---Such situations could arise where the defendant undertook the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care would be taken---Such an undertaking may be express, but was more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care.

Elizabeth-Anne Gumbel QC, Iain O'Donnell, Duncan Fairgrieve and Jim Duffy (Instructed by Leigh Day & Co) for Appellants.

Lord Faulks QC, Paul Stagg and Katie Ayres (Instructed by Wansbroughs Solicitors (Devizes)) for Respondent.

Andrew Bagchi QC, Philip Havers QC and Hannah Noyee (Instructed by Allen and Overy LLP) for Ist Intervener (The AIRE Centre).

Caoilfhionn Gallagher QC, Aswini Weereratne QC and Nick Brown (Instructed by Simpson Millar LLP) for 2nd and 3rd Intervener (Article 39 and Care Leavers Association).

Deirdre Fottrell QC, Martin Downs and Tom Wilson (Instructed by Coram Children's Legal Centre) for 4th Intervener (Coram Children's Legal Centre).

2019 S C M R 1397

[Supreme Court of UK]\

Present: Lord Kerr, Lord Wilson, Lord Sumption, Lord Hodge and Lord Briggs

INDEPENDENT PRINT LTD. and another---Appellants

Versus

LACHAUX---Respondent

Decided on 12th June, 2019.

(On appeal from [2017] EWCA Civ 1334)

(a) Tort---

----Defamation---History of tort of defamation (in the United Kingdom) and attempts to statutorily reform it stated.

(b) Tort---

----Defamation---'Libel' and 'slander'--- Distinct origins, scope and reliefs awarded for torts of 'libel' and 'slander' stated.

(c) Tort---

----Defamation---Libel---Newspaper publication---Requirement that statement "had caused or was likely to cause 'serious harm' to the reputation of the claimant" [section 1(1) of the Defamation Act, 2013 (United Kingdom)]---Scope and meaning---Whether tendency to cause serious harm was sufficient to bring a claim for defamation---Held, that in addition to the common law presumption of damage to reputation, S. 1 of the Defamation Act, 2013 (United Kingdom) imposed a new threshold that the harm caused had to be serious---Such higher threshold of serious harm was a clear departure from the previous common law position---Application of the new threshold of serious harm to reputation must be determined by reference to the actual facts about its impact, and not just the meaning of the words---Establishing whether there was a cause of action depended on an assessment of the actual consequences resulting from the publication of the defamatory statement, which may include the size, and characteristics of the relevant audience, the quality of the publication and whether the claimant had any reputation to begin with---Serious harm to reputation could not be established solely by reference to the inherent tendency of words to cause harm to reputation---"Likely" to be caused referred to probable future harm and not merely to the tendency of the words---As a consequence, claimants were now required to show through a combination of the inherent tendency of the words and their actual impact that serious harm had or was likely to be caused to the claimant's reputation.

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 ref.

(d) Tort---

----Defamation---Libel---Harm to the reputation of a body that traded for profit---'Serious harm' that had caused or was likely to cause the body serious 'financial loss' [section 1(2) of the Defamation Act, 2013 (United Kingdom)]---Scope and meaning---Financial loss was not the same as special damage, in the sense in which that term was used in the law of defamation---Section 1 of the Defamation Act, 2013 (United Kingdom) was concerned with harm to reputation, whereas special damage represented pecuniary loss to interests other than reputation---Section 1(2) must refer not to the harm done to the claimant's reputation, but to the loss which that harm had caused or was likely to cause---Financial loss was the measure of the harm and must exceed the threshold of seriousness---As applied to harm which the defamatory statement "had caused", this necessarily called for an investigation of the actual impact of the statement---Given statement said to be defamatory may cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it was published---Whether that financial loss had occurred and whether it was "serious" were questions which could not be answered by reference only to the inherent tendency of the words.

(e) Tort---

----Defamation--- Actionable per se--- Effect on reputation--- For defamation still actionable per se (libel and some slanders) the effect of section 1 of the Defamation Act, 2013 (United Kingdom) was not to postpone the cause of action, which still arose upon publication---Impact of publication on reputation would in practice occur at that moment in almost all cases---If for some reason it did not occur at that moment, the subsequent events would be evidence of the likelihood of its occurring---In either case, subsequent events may serve to demonstrate the seriousness of the statement's impact including, in the case of a body trading for profit, its financial implications---Not necessary that those events must have occurred before the claimant's cause of action could be said to have accrued; their relevance was purely evidential---Position was different where a statement was not actionable per se, because the interest protected by the law in that case was purely pecuniary---Pecuniary loss must therefore have occurred.

(f) Tort---

----Defamation---Libel---Repeating a libelous statement---'Repetition rule' or the 'Dingle rule' [as stated in the case reported as Associated Newspapers Ltd v Dingle [1964] AC 371)]---Scope---'Dingle rule' or 'repetition rule' provided that a defendant could not rely in mitigation of damages on the fact that similar defamatory statements had been published about the same claimant by other persons---Statement that someone else had made a defamatory statement about the claimant, although literally true, was treated as equivalent to a direct statement to the same effect---Policy was that repeating someone else's libellous statement was just as bad as making the statement directly---Repetition rule had nothing to do with the threshold of seriousness, and nothing in the Defamation Act, 2013 (United Kingdom) could be taken as implicitly abolishing the said rule or limiting its application--- Repetition rule was criticised, but it was well established; it had the pragmatic advantage of making it unnecessary to determine which of multiple publications of substantially the same statement occurred first, something which in the case of a newspaper would often be impossible to ascertain and might differ from one reader to the next.

Lewis v Daily Telegraph [1964] AC 234, 260 ref.

David Price QC, Jonathan Price (instructed by David Price, Solicitor Advocate) for Appellants.

Adrienne Page QC, Godwin Busuttil (instructed by Taylor Hampton) for Respondent.

Guy Vassall-Adams QC, Romana Canneti, Edward Craven (written submissions only) Intervener (Media Lawyers Association).

2019 S C M R 1660

[Supreme Court of UK]\

Present: Lady Hale, President, Lord Birggs, Lady Arden,Lord Kitchin and Lord Sales

CAPE INTERMEDIATE HOLDINGSLTD.---Appellant/Cross-Respondent

Versus

DRING (for and on behalf of Asbestos Victims Support Groups Forum UK)---Respondent/Cross-Appellant

Decided on 29th July, 2019.

(On appeal from: [2018] EWCA Civ. 1795)

'Open justice', principle of---

----Case documents contained in records of the court---Inspection of such documents by a non-party---Inherent power of the court to order access to documents to non-parties---Scope---Principle of 'open justice' applied to all courts and tribunals exercising the judicial power of the state; they all had inherent jurisdiction to determine what said principle required in terms of access to documents or other information placed before them---Extent of any access permitted by the court's rules was not determinative (except where they contained a valid prohibition)---Principal purposes of the open justice principle were two-fold; to hold individual courts and judges to account, and to enable the public to understand how the justice system worked and why decisions were taken---Now that much more of the argument and evidence was reduced to writing before a hearing it was difficult for non-parties to follow what was going on without access to the written material, including documents---Default position was that the public should be allowed access, not only to the parties' submissions and arguments, but also to the documents which had been placed before the court and referred to during the hearing, which were not limited to those the judge has been asked to or has said that he has read---However, it does not follow that an applicant had a right for access to be granted (save to the extent that the rules granted such a right)---Non-party seeking access must explain why he sought it and how granting access would advance the 'open justice' principle---Court was to carry out a fact-specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality--- Practicalities and proportionality of granting the request would also be relevant, especially when proceedings were over---Furthermore it was highly desirable that the application for access was made during the trial when the material was still readily available, the parties were before the court and the trial judge was in day to day control of the court process---Non-party who sought access would be expected to pay the reasonable costs of granting that access---People who sought access after the proceedings were over may find that it was not practicable to provide the material because the court would probably not have retained it and the parties may not have done so---Even if they had, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the 'open justice' principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge---On the other hand, increasing digitisation of court materials may eventually make this easier---Non-parties should not seek access unless they could show a good reason why it would advance the 'open justice' principle, that there were no countervailing principles which may be stronger after the proceedings had come to an end, and that granting the request would not be impracticable or disproportionate.

R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2013] QB 618 https://www.iclr.co.uk/document/2011000298/casereport_46886/html, CA ref.

Michael Fordham QC, Geraint Webb QC and James Williams (Instructed by Freshfields Bruckhaus Deringer LLP) for Appellant/Cross Respondent.

Robert Weir QC, Jonathan Butters and Harry Sheehan (Instructed by Leigh Day) for Respondent/Cross-Appellant.

Jude Bunting (Instructed by Reynolds Porter Chamberlain LLP) for Intervener (The Media Lawyers Association).

2019 S C M R 1837

[Supreme Court of UK]\

Present: Lady Hale, President, Lord Kerr, Lord Wilson, Lord Birggs and Lady Arden

EGON ZEHNDER LTD.---Appellant

Versus

TILLMAN---Respondent

Decided on 3rd July, 2019.

(On appeal from: [2017] EWCA Civ 1054)

(a) Precedent---

----Assumption about law---Non-binding authority---Scope---When a court made an assumption about the law, instead of reaching a focused determination in relation to it, the decision based upon it did not carry binding authority under the doctrine of precedent.

National Enterprises Ltd. v. Racal Communications Ltd. [1975] Ch 397, 406 to 408 ref.

(b) Employer-employee---

----Doctrine "against restraint of trade"--- Historical background and change in scope and applicability of the doctrine due to shifting public policy/social change stated.

Dyer's case 2 Hen 5, f5, pl 26, 1414; Colgate v. Bacheler (1601) Cro Eliz 872; Nordenfelt v. The Maxim Nordenfeit Guns and Ammunition Co. Ltd. [1894] AC 535, 564; Mitchel v. Reynolds (1711) 1 P Wms 181; Herbert Marris Ltd v. Saxelby [1916] 1 AC 688; Servais Bouchard v. The Prince's Hall Restaurant (Ltd) (1904) 20 TLR 574 and Dickson v. Pharmaceutical Society of Great Britain [1970] AC 403, 431 ref.

(c) Employer-employee---

----Doctrine "against restraint of trade"---Post-termination restrictive trade/non-competition covenant--- Reasonableness--- Employee restrained for six months after termination of employment from being "interested in" business of competitor---Whether preventing an employee from becoming shareholder in competitor was an unreasonable restraint of trade---Whether word "interested" was capable of being severed from covenant---Defendant was an employee of the claimant company---After defendant's employment ended with the claimant she intended to join another company---Claimant sought an injunction to enforce a restrictive covenant in the defendant's contract of employment which provided that for a six month period she could not "directly or indirectly engage or be concerned or interested in any business carried on in competition with" any of the claimant's businesses---Defendant argued that the covenant was in unreasonable restraint of trade and thus void since it prevented her from becoming a shareholder in a competitor of the claimant---Trial judge granted the claimant the injunctive relief sought on the grounds that the covenant was enforceable since it did not prevent the defendant from becoming a shareholder in a competitor and was therefore not in unreasonable restraint of trade---Court of Appeal allowed the defendant's appeal and found that the covenant was unenforceable because the prohibition on being "interested in" the business of a competitor did prohibit the acquisition of a shareholding and was therefore too wide and in restraint of trade, and that the words "interested in" could not be severed so as to save and enforce the covenant---Held, that in substance as well as in form the restraint on shareholding was part of the restraint on the defendant's ability to work after her employment with the claimant ended and therefore the doctrine of "restraint of trade" applied---In the present case, the phrase "engaged or concerned or interested" used in the impugned covenant had long been included in standard precedents for the drafting of non-competition covenants and treated as including a shareholding prohibition---Claimant was unable to advance a realistic alternative construction of the word "interested"---Natural construction of the word "interested", consistent with long standing authority, was that it covered a shareholding, whether large or small, and therefore the clause was in unreasonable restraint of trade and unenforceable unless the word could be severed and removed from the rest of the impugned clause---Words "interested in" were capable of being removed from the restrictive trade clause without the need to add to or modify the wording of the rest of the clause and removal of the prohibition against the defendant being "interested" would not generate any major change in the overall effect of the restraints---Accordingly, the words 'interested in' would be severed and removed and the injunction was to be restored---Appeal was allowed accordingly.

Tradition Financial Services Ltd v. Gamberani [2017] EWHC 768 (QB), [2017] IRLR 698; Smith v. Hancock [1894] 2 Ch 377 and CEF Holdings Ltd v. Mundey [2012] EWHC 1524 (QB), [2012] IRLR 912 ref.

(d) Contract---

----Interpretation---"Validity principle"--- Scope--- Validity principle proceeded on the premise that the parties to a contract or other instrument would have intended it to be valid, therefore said principle provided that, in circumstances in which a clause in the contract was capable of having two meanings, one which would result in its being void and the other which would result in its being valid, the latter should be preferred---Question was whether the 'validity principle' was engaged only when the two meanings were equally plausible or was it also engaged even when the meaning which would result in validity was to some extent less plausible---To require a measure of equal plausibility of the rival meanings was to make unnecessary demands on the court and to set access to the principle too narrowly; but, on the other hand, to apply it whenever an element of ambiguity existed was to countenance too great a departure from the otherwise probable meaning---Test of whether the alternative construction was "realistic" was to be preferred.

Esso Petroleum Co Ltd v. Harper's Garage (Stourport) Ltd [1968] AC 269; In re Baden's Deed Trusts [1969] 2 Ch 388; The Interpretation of Contracts, 6th ed, 2015; Anglo Continental Educational Group (GB) Ltd. v. Capital Homes (Southern) Ltd [2009] EWCA Civ 218, [2009] CP Rep 30 para 13 and TFS Derivatives Ltd v. Morgan [2004] EWHC 3181 (QB), [2005] IRLR 246 ref.

(e) Employer-employee---

----Post-termination restrictive trade/non-competition covenant---Severance of restrictive trade covenant---Scope---Approach to be adopted by courts---On the question of severance of a restrictive trade covenant, the approach adopted in the case reported as Attwood v. Lamont [1920] 3 KB 571 https://www.iclr.co.uk/document/1921000025/casereport_6990/html, CA was not to be approved as it limited severance to situations where the restrictive covenant was in effect a combination of different covenants---Whereas the approach on severance adopted in the case reported as Beckett Investment Management Group Ltd v. Hall [2007] ICR 1539 https://www.iclr.co.uk/document/2006000245/casereport_14451/html, CA, ('the Beckett approach') which used a three pronged criteria, was to be approved---On the Beckett approach, the first criterion was whether the unenforceable provision was capable of being removed without the necessity of adding to or modifying the wording of what remained - this was called the blue pencil test---Second criterion was that the remaining terms continued to be supported by adequate consideration---Employer who sued on a covenant made otherwise than under seal must show that he provided consideration for it; this would not usually be in dispute---Third criterion was that the removal of the unenforceable provision did not so change the character of the contract that it became not the sort of contract that the parties entered into at all---Said criterion was the crucial criterion but it was better to express it as being whether removal of the provision would not generate any major change in the overall effect of all the post-employment restraints in the contract---Employer would have to establish that the provision's removal would not do so---Focus was on the legal effect of the restraints, which would remain constant, and not on their perhaps changing significance for the parties and in particular for the employee.

Attwood v Lamont [1920] 3 KB 571 https://www.iclr.co.uk/document/1921000025/casereport_6990/html, CA disapproved.

Beckett Investment Management Group Ltd v Hall [2007] ICR 1539 https://www.iclr.co.uk/document/2006000245/casereport_14451/html, CA approved.

East England Schools CIC v. Palmer [2013] EWHC 4138 (QB), [2014] IRLR 191; UK Power Reserve Ltd v. Read [2014] EWHC 66 (Ch); Freshasia Foods Ltd v. Lu [2018] EWHC 3644 (Ch); Freshasia Foods case [2019] EWHC 638 (Ch); Shafron v. KRG Insurance Brokers (Western) Inc [2009] 1 RCS 157 and Lee Gwee Noi v. Humming Flowers and Gifts Pte Ltd [2014] SGHC 64 ref.

James Laddie QC and Adam Solomon QC (instructed by Reynolds Porter Chamberlain LLP (London)) for Appellant.

Daniel Oudkerk QC and Amy Rogers (instructed by Simmons and Simmons LLP) for Respondent.

2019 S C M R 1887

[Supreme Court of UK]\

Present: Lady Hale, President, Lord Reed, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales

R (ON THE APPLICATION OF MILLER) and another---Appellants

Versus

The PRIME MINISTER and others---Respondents

Decided on 24th September, 2019.

(On appeals from: [2019] EWHC 2381 (QB) and [2019] CSIH 49)

(a) Parliamentary sovereignty---

----Executive--- Prerogative powers, limits of---Parliamentary accountability---Constitutional principles---Decision outside legal limits of prerogative powers---Justiciability of---Test---Although the courts could not decide political questions, the fact that a legal dispute concerned the conduct of politicians, or arose from a matter of political controversy, was not a sufficient reason for the courts to refuse to consider it---Prime Minister's accountability to Parliament did not in itself justify the conclusion that the courts had no legitimate role to play---Courts had a duty to give effect to the law, irrespective of a minister's political accountability to Parliament---Fact that a minister was politically accountable to Parliament did not mean that he was therefore immune from legal accountability to the courts---If the issue before the court was justiciable, deciding it would not offend against the separation of powers---Courts could rule on the extent of prerogative powers of the Executive---Since a prerogative power was not constituted by any document, determining its limits was not straightforward---Nevertheless, every prerogative power had its limits, and it was the function of the court to determine, when necessary, where they laid---Since the power was recognised by the common law, and had to be compatible with common law principles, those principles may illuminate where its boundaries laid---In particular, the boundaries of a prerogative power relating to the operation of Parliament were likely to be illuminated, and indeed determined, by the fundamental principles of (UK's) Constitutional law---Prerogative power was therefore limited by statute and the common law, including, the constitutional principles with which it would otherwise conflict---Courts had the responsibility of upholding the values and principles of the Constitution and making them effective---Particularly it was their responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power had transgressed those limits---Courts could not avoid such responsibility merely on the ground that the question raised had a political context---Limits of prerogative powers were to be determined by reference to two principles of constitutional law; first, that laws enacted by the Parliament were the supreme form of law in the legal system, with which everyone, including the Government, must comply---Time and again, the courts (in the UK) had protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers (from the Executive), and in doing so had demonstrated that prerogative powers were limited by the principle of Parliamentary sovereignty---Sovereignty of Parliament would be undermined if the Executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased---Second constitutional principle was that of Parliamentary accountability, whereby, through Parliamentary questions and committees, and scrutiny of delegated legislation, the policies of the Executive were subjected to consideration by the representatives of the electorate, and the executive was required to report, explain and defend its actions.

Proclamations case (1611) 12 Co Rep 74; Entick v. Carrington (1765) 19 State Tr 1029; 2 Wils KB 275; Fire Brigades Union's case R v. Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 572-573; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374; Attorney General v. De Keyser's Royal Hotel Ltd [1920] AC 508 and R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61, para 249 ref.

(b) Parliamentary sovereignty---

----Executive---Prerogative powers of the Executive---Prorogation of Parliament---Legality---Prime Minister decided to advise Crown to prorogue Parliament for a five-week period---Prorogation took effect during a period leading up to the deadline date for the United Kingdom's withdrawal from European Union, at a time when terms of withdrawal agreement remained undecided---Lawfulness of advice of prorogation was challenged on the ground that such prorogation had the effect of limiting scrutiny of Executive at a time when the country's Constitution was being changed---Plea on behalf of Government that challenge to the prorogation was not justiciable, as it was a political matter for which the Executive/Prime Minister was only answerable to the Parliament---Question as to whether prorogation unreasonably prevented Parliament to perform its Constitutional functions---Held, that principles of Parliamentary sovereignty and Parliamentary accountability were not placed in jeopardy when Parliament stood prorogued for the short period which was customary, but a decision to prorogue Parliament would be unlawful if the prorogation had the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive---In such a situation, the court would intervene if the effect were sufficiently serious to justify such an exceptional course---As a concomitant of Parliamentary sovereignty, the power to prorogue Parliament could not be unlimited---Extent to which prorogation frustrated or prevented Parliament's ability to perform its legislative functions and its supervision of the executive was a question of fact which presented no greater difficulty than many other questions of fact which were routinely decided by the courts---Court then had to decide whether the Prime Minister's explanation for advising that Parliament should be prorogued was a reasonable justification for a prorogation having those effects---Prime Minister's wish to end one session of Parliament and to begin another would normally be enough in itself to justify the short period of prorogation which had been normal in modern practice, and it could only be in unusual circumstances that any further justification might be necessary---Even in such a case, when considering the justification put forward, the court would have to bear in mind that the decision whether to (advise the monarch to) prorogue Parliament fell within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment---Court would therefore have to consider any justification that might be advanced with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution---Nevertheless, it was the court's responsibility to determine whether the Prime Minster had remained within the legal limits of the power---If not, the final question would be whether the consequences were sufficiently serious to call for the court's intervention---Prorogation of Parliament in the present case did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification; it was not a normal prorogation (in the run-up to a monarch's speech, which, according to unchallenged evidence before the court, typically required four to six days)---Parliament was prevented from carrying out its constitutional role for five out of a possible eight weeks at a time when a fundamental change was due to take place in the Constitution (of the United Kingdom)---Absent any evidence from the Government as to why so long was needed to prepare for it, it was impossible to conclude, that there was any reason, let alone a good reason, to prorogue Parliament for five weeks---Fundamental change was due to take place in the Constitution (of the United Kingdom)due to its exit from the European Union---Question as to whether or not it was a good thing was not for any court to judge, the people had decided that---However, the Parliament, and in particular the lower House as the democratically elected representatives of the people, had a right to have a voice in how that change came---Accordingly, since the advice which had led to the prorogation had been outside the powers of the Prime Minister to give, it was null and of no effect, as was the Order in Council founded on that unlawful advice, which had to be quashed, and so, in turn, the actual prorogation in Parliament had been unlawful, null and of no effect---Supreme Court declared that Parliament had not been prorogued---Appeals were disposed of accordingly.

R (UNISON) v. Lord Chancellor [2017] UKSC 51, para 119 ref.

Lord Pannick QC, Tom Hickman QC and Warren Fitt (instructed by Mishcon de Reya LLP (London) for Appellant (Gina Miller).

Lord Keen of Elie QC and Andrew Webster QC (instructed by Office of the Advocate-General for Scotland) for Appellant (The Advocate-General).

Sir James Eadie QC, David Blundell, Christopher Knight and Richard Howell (instructed by the Government Legal Department) for Respondent (The Prime Minister).

Aidan O'Neill QC, David Welsh and Sam Fowles (instructed by Balfour and Manson LLP (Edinburgh)) for Respondents (Joanna Cherry MP and others).

James Wolffe QC, Lord Advocate, James Mure QC and Christine O'Neill (instructed by the Legal Department of the Scotish Government) for Ist Intervener.

Ronan Lavery QC, Conan Fegan BL and Richard Smyth (instructed by Melvor Farrell Solicitors) for 2nd Intervener.

Michael Fordham QC, Celia Rooney and Hollie Higgins (instructed by Welsh Government Legal Services Department) for 3rd Intervener.

Lord Garnier QC, Tom Cleaver and Anna Hoffmann (instructed by Herbert Smith Freehills LLP) for 4th Intervener.

Deok Joo Rhee QC and Catherine Dobson (instructed by Howe and Co.) for 5th Intervener.

Thomas de la Mare QC, Daniel Cashman and Alison Pickup (instructed by Public Law Project) for 6th Intervener.

2019 S C M R 1229

[Supreme Court of the United States]\

Present: John G. Roberts, C.J., Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, JJ

JAMES L. KISOR---Petitioner

Versus

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS---Respondent

Decided on 26th June, 2019.

(On writ of Certiorari to the United States Court of Appeals for the Federal Circuit)

Per Kagan, J; Roberts, CJ, Ginsburg, Breyer and Sotomayor, JJ concurring; Alito, J, partly concurring; Thomas, Gorsuch and Kavanaugh, JJ dissenting.

(a) Interpretation of statutes---

----Regulations governing a federal agency--- Ambiguity in interpretation---Judicial deference to a federal agency's interpretation of its own regulation [known as the "Auer deference" doctrine as laid down in the cases reported as Auer v. Robbins, 519 U.S. 452 (1997) https://www.oyez.org/cases/1996/95-897, and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) https://supreme.justia.com/cases/federal/us/325/410/---History of the "Auer deference" doctrine stated.

(b) Interpretation of statutes---

----Regulations governing a federal agency--- Ambiguity in interpretation---Judicial deference to a federal agency's interpretation of its own regulation [known as the "Auer deference" doctrine as laid down in the cases reported as Auer v. Robbins, 519 U.S. 452 (1997) https://www.oyez.org/cases/1996/95-897, and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) https://supreme.justia.com/cases/federal/us/325/410/---Scope---[Per Kagan, J (Majority view): "Auer deference" doctrine which directed courts to give deference to an agency's reasonable reading of its own genuinely ambiguous regulations was not to be overruled---"Auer deference" doctrine was rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities because agencies were best equipped to interpret the often-technical regulations at issue---Said presumption arose because the agency that promulgated a rule was in the better position to reconstruct its original meaning, and because re­solving genuine regulatory ambiguities often entailed the exercise of judgment grounded in policy concerns, an area where agencies had a comparative advantage over courts---Finally, the presumption reflected the well-known benefits of uniformity in interpreting ambiguous rules---"Auer deference" doctrine promoted resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation---Court adopted the said presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions, but when the reasons for the presumption did not hold up, or when countervailing reasons outweighed them, courts should not give deference to an agency's read­ing---Empirical evidence showed that the 'Auer deference' doctrine did not encourage agencies to issue vague and open-ended interpretations of those rules they preferred---Neither the 'Auer deference' doctrine violated separation-of-powers principles---Doctrine of stare decisis also cut strongly against overruling the 'Auer deference' doctrine---No special justification existed to reverse the said doctrine---'Auer deference' pervaded the whole corpus of adminis­trative law, abandoning it would cast doubt on many settled con­structions of rules---Even if the Court was wrong about its presumptions regarding the 'Auer deference' doctrine, the legislature (Congress) could correct it ---For about a century, the legislature (Congress)had let the Supreme Court's deference regime regarding the Auer deference doctrine work side-by-side with both the judicial review provision of the Administrative Procedure Act (APA) 5 U.S.C. §706 and the many statutes delegating rulemaking power to agencies---Legislature (Congress) had done so even after the Supreme Court had made it clear that its deference decisions reflected a presumption about intent of the legislature (Congress)]---[Per Roberts, CJ; concurring: Overturning the 'Auer deference' doctrine and resultantly the cases reported as Auer v. Robbins, 519 U.S. 452 (1997) https://www.oyez.org/cases/1996/95-897, and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) https://supreme.justia.com/cases/federal/us/325/410/ was not warranted---Cases in which the 'Auer deference' doctrine was appropriate largely overlapped with cases in which it would be unreasonable for a court to be persuaded by an agency's interpretation of its own regulation]---[Per Gorsuch, J, dissenting (Minority view): In disputes involving the relationship between the government and the people, 'Auer deference' doctrine required judges to accept an executive agency's interpretation of its own regulations even when that interpretation did not represent the best and fairest reading---Said doctrine created a systematic judicial bias in favour of the federal govern­ment, the most powerful of parties, and against everyone else---Nor was the said biased doctrine the product of some legislative mandate which the Supreme Court (of the United States) was powerless to correct---Supreme Court (of the United States) invented the doctrine, almost by accident and without any meaningful effort to reconcile it with the judicial review provision of the Administrative Procedure Act (APA) 5 U.S.C. §706 and the separation of powers principle---'Auer deference' doctrine meant that, far from being kept distinct the powers of making, enforcing, and interpreting laws were united in the same hands and in the process a cornerstone of the rule of law was compromised---Even otherwise the majority decision in the present case by changing the test set forth in precedents for the 'Auer deference' doctrine, had effectively overruled the said doctrine and it remained in name only]---[Per Kavanaugh, J; dissenting (Minority view): 'Auer deference' doctrine should be formally retired---Judge should engage in appropriately rigorous scrutiny of an agency's interpreta­tion of a regulation, and could simultaneously be appropri­ately deferential to an agency's reasonable policy choices within the discretion allowed by a regulation---Issues surrounding judicial deference to agency inter­pretations of their own regulations were distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by the legislature (Congress)---Decision in the present case addresses only judicial deference to agency interpretations of their own regulations, and not at all judicial deference to agency interpretations of statutes passed by the legislature].

Michigan v. Bay Mills Indian Community, 572 U. S. 782, 798; Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266; Patter­son v. McLean Credit Union, 491 U. S. 164, 172-173; Martin v. Occupational Safety and Health Review Comm'n 499 U. S. 144, 151-153; Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 and Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568. Pp. 4-11 ref.

Per Kagan, J; (Majority view)

(c) "Auer deference", doctrine of---

----Pre-requites and scope---Regulations governing a federal agency---Ambiguity in interpretation---Judicial deference to a federal agency's interpretation of its own regulation [known as the "Auer deference" as laid down in the cases reported as Auer v. Robbins, 519 U.S. 452 (1997) https://www.oyez.org/cases/1996/95-897, and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) https://supreme.justia.com/cases/federal/us/325/410/---Pre-requisites for the "Auer deference" to apply were that; first, a court should not afford an agency 'Auer deference' unless the regulation was genuinely ambiguous, a determination the court could make only after it had exhausted all the traditional tools of construction; second, the agency's reading must be reasonable, under the text, structure, and history of the regulation---If genuine ambiguity remained, the agency's reading must still fall within the bounds of reasonable interpretation---Even then, not every reasonable agency reading of a genuinely ambiguous rule should receive 'Auer deference'---Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitled it to controlling weight; Third, the regulatory interpretation must be one actually made by the agency; that was, it must be the agency's authoritative or official position, not merely an ad hoc statement; fourth, the interpretation must in some way implicate the agency's substantive expertise, as the basis for deference ebbs when the subject matter of a dispute was distant from the agency's ordinary duties, and fifth, it must reflect fair and considered judgment---Court should decline to defer, for example, to a merely convenient litigating position, or to a new interpretation that created unfair surprise to regulated par­ties. [Majority view]

Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9; Arlington v. FCC, 569 U. S. 290, 296; Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155 and Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 170 Pp. 11-19 ref.

Per Kagan, J; (Majority view)

(d) Stare decisis, doctrine of---

----Scope---Adherence to prece­dent was a foundation stone of the rule of law; it promoted the evenhanded, predictable, and consistent development of legal principles, fostered reliance on judicial decisions, and contributed to the actual and perceived integrity of the judicial process---Stare decisis was not an inexorable command, but any departure from the doctrine demanded "special justification" - something more than an argument that the precedent was wrongly decided. [Majority view]

Michigan v. Bay Mills Indian Community, 572 U. S. 782, 798 (2014); Payne v. Tennessee, 501 U. S. 808, 827 (1991) and Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (2014) ref.

Per Gorsuch, J

(e) Stare decisis, doctrine of---

----Scope---Supreme Court (of the United States) did not lightly overturn precedents, and it sought always to honour the thoughtful guidance of those who had preceded the incumbent judges---At the same time, doctrine of stare decisis was not an inexorable command and the Supreme Court (of the United States) should not always remain bound to decisions whose ra­tionale no longer withstood careful analysis---Recog­nizing the need for balance in this area, the Supreme Court (of the United States) had over time, fashioned principles to guide its treatment of precedent---Said principles called on the Court to consider factors such as the quality of the precedent's reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.

Pearson v. Callahan, 555 U. S. 223, 233 (2009); Arizona v. Gant, 556 U. S. 332, 348 (2009) (quoting Lawrence v. Texas, 539 U. S. 558, 577 (2003) and Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___ -___ (2018) (slip op., at 34-35) ref.

2019 S C M R 1332

[Supreme Court of the United States]\

Present: John G. Roberts, C.J., Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, JJ

HAMID MOHAMED AHMED ALI REHAIF---Petitioner

Versus

UNITED STATES---Respondent

Decided on 21st June, 2019

(On writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit)

Per Breyer, J; Roberts, C.J, Ginsburg, Sotomayor, Kagan, Gorsuch and Kavanaugh, JJ agreeing; Alito and Thomas, JJ dissenting.

(a) Criminal trial---

----Elements of offence---Knowledge, requirement of---Presumption---In determining whether a criminal statute required the prosecution to prove that the defendant acted knowingly was a question of legislative in­tent--- Such inquiry started from a longstanding presumption that the legislature intended to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalized oth­erwise innocent conduct---Courts applied such presumption of mental state, or "scienter," even in the absence of any scienter in the statute.

Defendant was in the United States on a student visa studying at an educational institute; he was academically dismissed in December 2014, and his immigration status was terminated in February, 2015. Defendant remained in the U.S. and in December 2015, purchased ammunition and rented a firearm at a shooting range and fired a few shots. Defendant was tried for "possessing firearms as an alien unlawfully in the United States," which carried up to a 10-year sentence https://www.law.cornell.edu/uscode/text/18/924 for those who "knowingly" violated it [18 U.S.C. § 924(a)(2)]. At trial, the central question that emerged was what did the defendant have to know to "knowingly" violate the statute ?. In other words whether the "knowingly" provision of 18 U.S.C. § 924(a)(2) applied to both the 'possession' and '(legal) status' elements of a § 922(g) crime, or whether it applied only to the possession element.

Defendant argued that to violate the statute in question he had to know that he was using a firearm and that he was no longer legally in the United States. Prosecution argued that it was not required to prove that the defendant knew that he was illegally or unlawfully in the United States. Trial court told the jury that defendant's knowledge of his immigration status was irrelevant, and all that the prosecution needed to prove was that the defendant knew he was holding a firearm. Defendant was sentenced to 18 months in custody before his deportation. On appeal, the Appellate Court affirmed the convictions, holding that the prosecution did not need to prove that the defendant knew of his prohibited status in the country.

Per Breyer, J (Majority view): Whether a criminal statute requires the prosecution to prove that the defendant acted knowingly was a question of legislative intent. In determining legislative intent the longstanding presumption was that the legislature (Congress) intended to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalized otherwise innocent conduct. Court normally characterized this interpretive maxim as a presumption in favor of "scienter" which meant that criminal statutes required the degree of knowledge sufficient to make a person legally responsible for the consequences of his or her act or omission. Courts applied this presumption of mental state, or "scienter," even in the absence of any scienter in the statute. But the presumption applied with equal or greater force when the legislature included a general scienter provision in the statute itself. There was no convincing reason to depart from this presumption in the present case.

Staples v. United States, 511 U. S. 600, 605 (1994); United States v. X-Citement Video, Inc., 513 U. S. 64, 72; Morissette v. United States, 342 U. S. 246, 256-258 (1952) and Black's Law Dictionary 1547 (10th ed. 2014) ref.

The statutory text supported such presumption. It specified that a defendant committed a crime if he "knowingly" violated §922(g), which made possession of a firearm unlawful when the following elements were satisfied: (i) a status element ("being an alien…illegally or unlawfully in the United States"); (ii) a possession element (to "possess"); (iii) a jurisdictional element ("in or affecting commerce"); and (iv) a firearm element (a "firearm or ammunition"). Aside from the jurisdictional element, which was not subject to the presumption in favour of scienter, §922(g)'s text simply listed the elements that made a defendant's behavior criminal. Using ordinary English grammar, the statutory term "knowingly" had to be read as applying to all the subsequently listed elements of the crime. The "knowingly" provision of 18 U.S.C. § 924(a)(2), thus, applied to both the possession and status elements of a § 922(g) crime. To convict a defendant of this crime, the prosecution must show that the defendant knew he possessed a firearm and also that he knew he belonged to the relevant class of persons when he possessed it.

Flores-Figueroa v. United States, 556 U. S. 646, 650 and United States v. Games-Perez, 667 F. 3d 1136, 1143 (CA10 2012) ref.

Such reading of the statute was also consistent with a basic principle underlying the criminal law; the importance of showing "a vicious will." Basic principle of criminal law was that criminal intent separated wrongful from innocent acts. Possessing a gun could be entirely innocent. It was the defendant's status, not his conduct alone, that made the difference. Without knowledge of that status, a defendant may lack the intent needed to make his behavior wrongful. Defendant who did not know that he was an alien "illegally or unlawfully in the United States did not have the guilty state of mind that the statute's language and purposes required. Appellate Court's decision was to be reversed and case should be remanded back to the Appellate Court below.

Per Alito, J dissenting (Minority view):

Majority opinion in the present case casually overturns the long-established interpretation of an important criminal statute, 18 U. S. C. §922(g), an interpretation that had been adopted by every single Court of Appeals to address the question. That interpretation had been used in thousands of cases for more than 30 years. According to the majority opinion, every one of those cases was flawed. §922(g) was no minor provision; it probably did more to combat gun violence than any other federal law; it prohibited the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Majority opinion of the present case would make it significantly harder to convict persons falling into some of these categories, and the decision would create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) would swamp the lower courts. A great many convictions would be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fell outside the bounds of harmless-error review.

Majority opinion in the present case relied on its own guess about legislative intent. And he intent that the majority attributed to the legislature was one that legislature almost certainly did not harbour.

Federal law prohibited a wide variety of people from possessing firearms including felons, anyone who used or was addicted to illegal drugs, "mental defectives," people subject to restraining orders, or those who were convicted of domestic violence. And hundreds of people every year were convicted for breaking these rules, often without knowing that the legislature had decided to strip them of their right to bear arms. If actual knowledge of status was required for aliens, such change also meant that felons, the mentally ill, and people who used drugs occasionally would have to have actual knowledge of their status to be punished for possession of firearms. This would be especially hard to prove for the "mentally defective." After all, those who lacked the intellectual capacity to possess firearms safely, were also unlikely to know and understand https://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect their status.

Legislature enacted §922(g)'s status-based restrictions because of its judgment that specific classes of people were potentially irresponsible and dangerous and therefore should be prohibited from owning or possessing firearms and ammunition. It was highly unlikely that legislature wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status.

Barrett v. United States, 423 U. S. 212, 218 (1976) ref.

Once it became clear that statutory text alone did not answer the question of intent or knowledge and the court was left to infer legislature's intent based on other indicators, there was no reason why the court must or should infer that legislature wanted the same mens rea to apply to all the elements of the §922(g) offence. Different elements of the same offence could require different mental states. And if the legislature wanted to require proof of some mens rea with respect to the categories in §922(g), there was absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea-'actual knowledge'.

Staples v. United States, 511 U. S. 600, 609 (1994) ref.

Majority opinion had opened the gates to a flood of litigation that was sure to burden the lower courts with claims for relief in a host of cases where there was no basis for doubting the defendant's knowledge. The majority's interpretation of §922(g) was not required by the statutory text, and there was no reason to suppose that it represented what the legislature intended.

Per Breyer, J (Majority view)

(b) Maxim---

----"Ignorance of the law was no excuse"---Scope---Said maxim normally applied where a defendant possessed the requisite mental state in respect to the elements of the crime but claimed to be unaware of a law forbidding his conduct---Said maxim did not normally apply where a defendant's mistaken impression about a collateral legal question caused him to misunderstand his conduct's significance, thereby negating an element of the offence.

I W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986) ref.

2019 S C M R 1371

[Supreme Court of the United States]\

Present: John G. Roberts, C.J., Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, JJ

APPLE INC.---Petitioner

Versus

ROBERT PEPPER, ET AL.---Respondent

Decided on 13th May, 2019.

(On writ of Certiorari to the United States Court of Appeals for the Ninth Circuit)

Per Kavanaugh, J; Ginsburg, Breyer, Sotomayor, Kagan, JJ agreeing; Gorsuch, Roberts, C.J, Thomas and Alito, JJ dissenting.

Competition law---

----Monopolization by a retailer---Forcing consumers to pay higher than competitive prices---Standing of consumer to sue retailer---Whether consumer was a "direct purchaser"---Consumers who purchased goods or services at higher-than-competitive prices from an allegedly monopolistic retailer may sue the retailer under competition law---'Immediate buyers' from the retailer, who allegedly violated competition law, may sue the retailer, but 'indirect purchasers' (i.e. those who were two or more steps removed from the retailer in a distribution chain) may not [as set out in the case reported as Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) https://www.oyez.org/cases/1976/76-404]

Present case arose out of a technology company's (Apple's) handling of the sale of software applications for its mobile devices (iPhones). Company controlled which applications could be loaded onto its devices, which it did via the "App Store."-the only place where the device owners may law­fully buy applications. Although the company developed some of the applications sold on its 'App Store', most were developed by third parties. For every 'App Store' sale made by a third-party developer, the company received 30% of the sale price.

Plaintiffs filed a class action lawsuit against the company, alleging that it had unlawfully exercises monopoly power in the retail market for the sale of applications and used its monopoly power to force users of its devices to pay the company higher-than-competitive prices for the applications on the 'App Store'. According to the plaintiffs, when they wanted to purchase an application, they had only two options; first, to buy the application from company's 'App Store' at a higher-than-competitive price, or, secondly not to buy the application at all.

Company filed motion to dismiss the suit by contending that the plaintiffs lacked statutory standing to sue under the US Supreme Court's precedent in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) https://www.oyez.org/cases/1976/76-404. Under 'Illinois Brick', "only the overcharged direct purchaser, and not others in the chain of manufacture or distribution" may bring a lawsuit for competition law violations. If the plaintiffs were considered to have purchased their applications directly from the third-party developers, then they could not sue the company. However, if they were considered to have bought the applications from the company, then they may sue the company. District court found that the plaintiffs lacked standing to sue under 'Illinois Brick' and dismissed the case. On appeal, the Appellate Court found that the plaintiffs were direct purchasers from the company within the meaning of 'Illinois Brick' and thus had standing to bring their claim.

Per Kavanaugh, J (Majority view):

Plaintiff (owners of devices manufactured by the company), who purchased applications through the company's 'App Store', were direct purchasers from the company under the US Supreme Court's precedential case Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) https://www.oyez.org/cases/1976/76-404, and thus may sue the company.

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) https://www.oyez.org/cases/1976/76-404 ref.

Section 4 of the Clayton Act, 15 U.S.C. § 15(a), provided that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue." Broad text of section 4 -"any person" who had been "injured" by a violator of competition law may sue-readily covered consumers who purchased goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Supreme Court (of the United States) had interpreted said provision to mean that "immediate buyers" from the alleged antitrust violators may sue the antitrust violators, but "indirect purchasers" (those who were two or more steps removed from the violator in a distribution chain) may not.

Kansas v. UtiliCorp United Inc., 497 U. S. 199, 207 ref.

Plaintiffs in the present case were not so distantly removed from the company to bar a lawsuit. Plaintiffs were not consumers at the bot­tom of a vertical distribution chain who were attempting to sue manu­facturers at the top of the chain. There was no intermediary in the distribution chain between the company and the consumer. The owners of devices purchased applications directly from the retailer-company, who was the alleged violator of competition law. The owners of devices paid the alleged overcharge directly to the company. The absence of an intermediary was dispositive. Such interpretation was consistent not only with the statutory text and the Supreme Court's precedent, but also the policy behind competition law. To hold otherwise would provide a roadmap for monopolistic retailers to evade competition law.

Per Gorsuch, J (Minority view):

In Illinois Brick Co. v. Illinois, n 431 U. S. 720 (1977), it was held that a plaintiff can't sue a defendant for overcharging someone else who might (or might not) have passed on all (or some) of the overcharge to him; that these convoluted "pass on" theories of damages violated traditional principles of proximate causation and that the right plaintiff to bring suit was the one on whom the overcharge immediately and surely fell. Yet today the majority opinion in the present case lets a pass-on case proceed. It did so by recasting the principle settled in Illinois Brick as a rule forbidding only suits where the plaintiff did not contract directly with the defendant. This replaced a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That's not how competition law was supposed to work, and it was an uncharitable way of treating a precedent which- whatever its flaws-was far more sensible than the rule the majority opinion has installed in its place. Suit by the plaintiffs (consumers) was precisely the type of lawsuit proscribed in Illinois Brick.

United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 208 (1968) ref.

Plaintiffs bought applications from third- party developers (or manufacturers) in the company's retail 'App Store', at prices set by the developers. The lawsuit alleged that the company was a monopolist retailer and that the 30% commission it charged developers for the right to sell through its platform represented an anticompetitive price. The problem was that the 30% commission fell initially on the third-party developers. So if the commission was in fact a monopolistic overcharge, the developers were the parties who were directly injured by it. Plaintiffs could be injured only if the developers were able and chose to pass on the overcharge to them in the form of higher application prices that the developers alone controlled.

2019 S C M R 1419

[Supreme Court of the United States]\

Present: John G. Roberts, C.J., Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, JJ

MANHATTAN COMMUNITY ACCESS CORPORATION, ET AL---Petitioner

Versus

DEEDEE HALLECK ET AL---Respondent

Decided on 17th June, 2019.

(On writ of Certiorari to the United States Court of Appeals for the Second Circuit)

Per Kavanaugh, J; Roberts, C.J. , Thomas, Alito and Gorsuch, JJ agreeing; Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, JJ dissenting.

Fundamental Rights---

----Freedom of speech [First Amendment to the US Constitution]---Limitations---'State actor'---Scope---'State action', doctrine of---Free Speech Clause (of the First Amendment to the US Constitution) prohibited only governmental abridgment of speech; it did not prohibit private abridgment of speech---When the government provided a forum for speech (known as a public forum), the government may be constrained by the First Amendment (freedom of speech), meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content---By contrast, when a private entity provided a forum for speech, the private entity was not ordinarily constrained by the First Amendment because the private entity was not a state actor---Private entity may thus exercise editorial discretion over the speech and speakers in the forum---To draw the line between governmental and private, the Court applied the state-action doctrine---Under said doctrine, a private entity may be considered a state actor when it exercised a function traditionally exclusively reserved to the State---To qualify as a traditional, exclusive public function, the government must have traditionally and exclusively performed the function---Fact that the government licenses, contracts with, or grants a monopoly to a private entity did not convert the private entity into a state actor, unless the private entity was performing a traditional, exclusive public function---Same principle applied if the government funded or subsidized a private entity.

Public access station operated by Manhattan Neighborhood Network (MNN) in New York City suspended two of its contributors (employees) from using the station's services and facilities for allegedly harassing and inciting violence against other MNN employees. The contributors then filed a lawsuit claiming that MNN was violating their freedom of speech [First Amendment rights].

Generally, private actors could not violate the constitutional rights of individuals; a finding of a constitutional violation required 'state action.' However, when the government created a private entity by special law and retained authority to appoint a majority of directors, the actions of that private entity could sometimes be regarded as governmental action. Finding that the government retained authority to appoint only two of the thirteen members of MNN's board, the District court held that MNN, its employees, and the City Government did not create a public forum to which the Free Speech Clause of the First Amendment (to the US Constitution) applied and dismissed the First Amendment claim for lack of state action. On appeal, the Appellate Court, relying on the Supreme Court's decision in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. (1996) found that the City Government had delegated to MNN the traditionally public function of administering and regulating speech in the public forum of public-access cable television. Thus, MNN created a public forum and functioned as a state actor within the meaning of the First Amendment.

Per Kavanaugh, J (Majority view):

When the government provided a forum for speech (known as a public forum), the government may be constrained by the First Amendment (freedom of speech), meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content.By contrast, when a private entity provided a forum for speech, the private entity was not ordinarily constrained by the First Amendment because the private entity was not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum.

Southeastern Pro-motions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 93, 96 (1972) and Hague v. Committee for Industrial Organization, 307 U. S. 496, 515-516 (1939) ref.

Free Speech Clause of the First Amendment constrained governmental actors and protected private actors. To draw the line between governmental and private, the Court applied what was known as the state-action doctrine. Under that doctrine, a private entity may be considered a state actor when it exercised a function "traditionally exclusively reserved to the State." It was not enough that the federal, state, or local government exercised the function in the past, or still did. And it was not enough that the function served the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of state-action precedents, the government must have traditionally and exclusively performed the function. Free Speech Clause prohibited only governmental abridgment of speech. The Free Speech Clause did not prohibit private abridgment of speech. In accord with the text and structure of the Constitution, the Supreme Court's state-action doctrine distinguished the government from individuals and private entities. By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protected a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise

Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S.727, 737 (1996); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995); Hudgens v. NLRB, 424 U. S. 507, 513 (1976); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U. S. 288, 295-296 (2001); Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 (1974); Rendell-Baker v. Kohn, 457 U. S. 830, 842 (1982) and Evans v. Newton, 382 U. S. 296, 300 (1966) ref.

Private entity could qualify as a state actor in a few limited circumstancesincluding, for example, (i) when the private entity performed a traditional, exclusive public function; (ii) when the government compelled the private entity to take a particular action; or (iii) when the government acted jointly with the private entity.

Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 (1974); Blum v. Yaretsky, 457 U. S. 991, 1004-1005 (1982) and Lugar v. Edmondson Oil Co., 457 U. S. 922, 941-942 (1982) ref.

Operating of public access channels on a cable system was not a traditional, exclusive public function. Moreover, a private entity such as MNN which provided a forum for speech was not transformed by such fact alone into a state actor. If the rule were otherwise, all private property owners and private lessees who opened their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deemed to be appropriate editorial discretion within that open forum.

City government's designation of MNN to operate the public access channels was analogous to a government license, a government contract, or a government-granted monopoly. But the fact that the government licenses, contracts with, or grants a monopoly to a private entity did not convert the private entity into a state actor-unless the private entity was performing a traditional, exclusive public function. Same principle applies if the government funded or subsidized a private entity.

San Francisco Arts & Athletics, 483 U. S., at 543-544; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 120-121 (1973); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 176-177 (1972) and Trustees of Dartmouth College v. Woodward, 4 Wheat 518, 638-639 (1819) ref.

City government's extensive regulation of MNN's operation of the public access channels also did not make MNN a state actor. Under the State's regulations, air time on the public access channels must be free, and programming must be aired on a first-come, first-served basis. Said regulations restricted MNN's editorial discretion and in effect required MNN to operate almost like a common carrier, But under the precedents of the Supreme Court, such restrictions did not render MNN a state actor.

Jackson v. Metropolitan Edison Co., 419 U. S. at 350 and 358 (1974) ref.

In operating the public access channels, MNN was a private actor, not a state actor, and MNN therefore was not subject to First Amendment constraints on how it exercised editorial discretion over the speech and speakers on its public access channels.

Per Sotomayor, J (Minority view):

Present case was a case about an organization appointed by the government to administer a constitutional public forum. City government secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations required those public-access channels to be made open to the public on a first-come, first-served, non-discriminatory basis that made the channels a public forum. The City government contracted out or delegated the administration of that forum to a private organization, Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City government's shoes and thus qualified as a state actor, subject to the Free Speech Clause of the First Amendment like any other.

West v. Atkins, 487 U. S. 42 (1988) ref.

When a government made a choice that triggered constitutional obligations, and then contracted out those constitutional responsibilities to a private entity, that entity-in agreeing to take on the job-became a state actor. First Amendment did not fall silent simply because a government handed off the administration of its constitutional duties to a private actor.